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August 29, 2014 Case Digest

In Douglass v. Convergent, plaintiff alleged that defendant violated the FDCPA by placing plaintiff's account number on the face of the debt collector's envelope.  The district court entered summary judgment in defendant's favor, applying a benign language exception because the account number did not indicate it was a debt collection letter or was otherwise intended to embarrass or humiliate the consumer.  Plaintiff appealed, and the appellate court reversed, finding that the disclosure of the account number was prohibited even though it was only visible through an envelope window, and that the inclusion of the account number through the envelope was not benign.

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August 27, 2014 Case Digest

In Roth v. CitiMortgage, plaintiff alleged that defendant violated the FDCPA by failing to adequately respond to her request for verification of a mortgage debt.  The district court dismissed the claim, and the debtor appealed.  The appellate court affirmed the dismissal, concluding that the FDCPA does not apply to a mortgage servicer unless the servicing begins and the debt is received after the debt was in default.

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August 25, 2014 Case Digest

In Lee v. Loandepot.com, plaintiff alleged that defendant violated the TCPA by placing automated telemarketing calls to his cell phone without consent.   Defendant moved to stay the case until the FCC has made a ruling on issues that would affect the case.  Specifically, there are three petitions before the FCC that address the interpretation of "capacity" under the TCPA that would affect whether the calls were made with an ATDS.  Relying on the primary jurisdiction doctrine, the court granted the motion and stayed the case until the FCC determined whether equipment that lacks the present capacity to generate random or sequential numbers is an ATDS.

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August 24. 2014 Case Digest

In Reyes v. Julia Place Condos, plaintiff alleged that defendant violated the FDCPA while attempting to collect past due home owner association fees.  Plaintiff named the creditor HOA as a defendant, and argued that the HOA was a debt collector under the FDCPA because it was sending collection letters using a false name by having the letters sent on attorney letterhead without meaningful attorney review.  Defendant moved for summary judgment arguing that as the creditor, it could not be held liable under or subject to the FDCPA. The court denied the motion, finding that there was a disputed factual issue on whether defendant was sending the letters, and whether the attorney was involved in a meaningful way in the collection of the debt, so that there remained a viable false name theory as a possible exception to the rule excluding creditors from the FDCPA.

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August 23, 2014 Case Digest

In Patrick v. PYO, plaintiff alleged that defendant violated the FDCPA by filing 2 proof of claims in plaintiff's bankruptcy case, when those claims were barred by the state's statute of limitations.  Defendant moved to dismiss, arguing that the FDCPA did not apply to cases brought under the bankruptcy code.  The court denied the motion, finding that the bankruptcy code did not preclude the simultaneous application of the FDCPA to debt collection efforts taken in the bankruptcy case.  The court also found that filing a proof of claim on a time barred debt creates the misleading impression that the debt can be legally enforced.

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August 22, 2014 Case Digest

 In Jacobson v. Persolve, plaintiff alleged that defendant violated the FDCPA by sending a letter that failed to identify the current creditor.  Defendant served plaintiff with an offer of judgment in an effort to resolve the putative class action on an individual basis, and plaintiff moved to strike the offer.  The court denied the motion, finding the motion was procedurally improper because the offer had not been filed, and therefore, there was no pleading filed with the court that could be stricken.  The court also concluded there was no reason to strike the offer, because defendant was not entitled to move to moot the class claims after the offer expired, relying on the Ninth Circuit's decision that offers of judgment cannot be used to pick off putative class plaintiffs.

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August 21, 2014 Case Digest

In Davidson v. Capital One, plaintiff alleged that defendant violated the FDCPA by attempting to collect debts that it has not properly purchased.  Defendant moved to dismiss, arguing it was not a debt collector subject to the FDCPA because it was attempting to collect debts owed to it after it had purchased the accounts.  The court agreed with defendant, finding that a debt collector only includes those entities that are attempting to collect debts “owed or due another.”

  

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August 20, 2014 Case Digest

In Liste v. Cedar Financial, plaintiff alleged that defendant violated the FDCPA and FCRA, and defendant moved to dismiss, arguing that the complaint failed to satisfy the minimal pleading requirements.  The court agreed and dismissed the suit.  Specifically, the court found that the FCRA claim must be dismissed because, though plaintiff alleged he disputed the credit reporting with the bureaus, plaintiff did not allege that defendant had received notice of the dispute from the credit bureaus or failed to conduct a reasonable investigation.  Moreover, plaintiff's claim that a message was overheard by a third party in violation of the FDCPA was barred by the statute of limitations, and that plaintiff failed to raise any support to equitably toll the limitations period.

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August 19, 2014 Case Digest

In Camarena v. Well Fargo, plaintiff alleged that defendant violated the FDCPA by falsely reporting a mortgage debt on her credit report after her home was sold and the debt extinguished.    After plaintiff disputed the credit reporting, defendant updated the report with a different, but still incorrect balance.  The court granted defendant’s motion for summary judgment on two independent grounds.  First, the court found that the updated credit reporting was not a communication “in connection with the collection” of a debt or that the updated reporting was debt collection activity subject to the FDCPA, as the mortgage was already satisfied and there was no debt to collect.  Second, the court found that the reporting of the balance, to the extent it was false, was not a materially false statement because it would not frustrate plaintiff’s ability to intelligently choose her response to the false statement.

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August 18, 2014 Case Digest

In Perry v. Federal National, plaintiff alleged that defendant violated the FDCPA and FCRA after attempting to collect his defaulted mortgage loan.  Defendant moved to dismiss, arguing both that it was not a "debt collector" subject to the FDCPA, and that plaintiff failed to plausibly allege a violation of either statute.  The court agreed that plaintiff's allegations were not sufficiently pled to proceed to discovery, and concluded that plaintiff had an obligation to offer more than simple, and conclusory, statements that defendant had vaguely violated the FDCPA or FCRA.

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