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December 30, 2014 Case Digest

In Brothers v. Saag, plaintiff alleged that defendant violated the FDCPA while attempting to collect a mortgage loan by stating the creditor would foreclose on the property when  the creditor had no right to foreclose on the property after the loan was transferred to a new creditor.  Defendant moved for summary judgment, and the motion was granted when the court found that the record evidence showed that the property was foreclosed upon, that the foreclosure was not vacated or set aside and the foreclosure sale appeared to be valid, so that defendant’s statements that the property would be foreclosed were true.

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December 29, 2014 Case Digest

In Powell v. Palisades, plaintiff alleged that defendant violated the FDCPA by filing an Assignment of Judgment that contained false representations regarding the amount of the debt, and stated falsely that plaintiff had not made any payments on the judgment.  The district court granted defendant’s motion for summary judgment, finding that the filing of the assignment was not collection activity subject to the FDCPA, and plaintiff appealed.  The appellate court reversed, concluding that the filing of the assignment was subject to the FDCPA as debt collection activity, and that the statements regarding the amount of the debt and payment history were both material and false.

 

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December 28, 2014 Case Digest

In Koch v. 704 Group, plaintiff alleged that defendant violated the FDCPA by filing a collection lawsuit on a debt that was time barred.  Defendant moved for summary judgment, arguing that the suit was filed two days beyond the limitation period due to a delay and error by a filing vendor, and that the suit was discontinued immediately upon learning that it was filed late.  The court granted the motion, finding that the lawsuit was unintentionally filed late by the vender, defendant did not attempt to continue to prosecute the claim upon learning it was late and that plaintiff suffered no harm.

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December 26, 2014 Case Digest

In Smith v. Patenaude & Felix, plaintiff alleged that defendant violated the FDCPA and FCRA by pulling her credit report without a permissible purpose because defendant knew, or should have known, that plaintiff was not the debtor.  Defendant moved to dismiss, arguing that the debt collection attempts provided a permissible purpose for obtaining the credit report.  The court denied the motion, finding that the allegation that plaintiff was not the debtor, and was not involved in initiating the transaction that resulted in the debt, was sufficient to state a claim for an unlawful credit pull.

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December 22, 2014 Case Digest

In Walker v. Greenspoon Marder, plaintiff alleged that defendant’s inclusion of a validation notice within a collection lawsuit complaint violated the FDCPA because it falsely stated the “notice was required by the FDCPA”.  Defendant moved to dismiss, arguing that the inclusion of the “required” language was not false, and even if technically false, it was not material or capable of misleading a consumer.  The court denied the motion, first finding that the notice was not “required” because the legal pleading was expressly exempt from the FDCPA.  The court then concluded that the language was material and capable of misleading a consumer regarding the timing to respond to the complaint by providing an alternative time to dispute the debt. The court also found the notice was deficient, because it omitted the phrase “by the debt collector” when stating the undisputed debt “will be assumed valid.”

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December 21, 2014 Case Digest

In Vallecastro v. Tobin, Melien & Maroni, plaintiff alleged that defendant filed a state court collection lawsuit that violated the FDCPA because it was supported by a false and misleading affidavit.   Defendant moved to dismiss, arguing that it was not a debt collector under the FDCPA because it was a loan servicer, and because any inaccuracies in the affidavit were not material.  The court granted the motion, finding that even if defendant was subject to the FDCPA, any statements in the affidavit regarding the servicer's relationship to the original creditor and that may be technically false were not material.

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December 20, 2014 Case Digest

In Thomas v. Taco Bell, plaintiff alleged that she received text messages sent on behalf of defendant and in violation of the TCPA.  Defendant's motion to dismiss was granted, and plaintiff appealled.  The appellate court affirmed the dismissal, finding that defendant could not be directly liable under the TCPA because it did not make the "call", and that plaintiff failed to plausibly allege that defendant could be vicariously liable for the sending of the text messages because the sender was neither the agent of, or operating with the apparent authority of defendant.

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December 19, 2014 Case Digest

In Janson v. Davis, LLC, plaintiff alleged that defendant violated the FDCPA by filing a false affidavit in a “rent and possession” collection lawsuit in state court attempting to collect unpaid rent. Defendant filed a motion to dismiss, arguing that the affidavit was literally true, as established in the state court proceeding which entered judgment in favor of the creditor based in part on that affidavit.  The court agreed and dismissed the case, finding that the affidavit was not capable of being misleading under the FDCPA.

 

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December 18, 2014 Case Digest

In Marucci v. Cawley & Bergmann, plaintiff alleged that defendant’s collection letter violated the FDCPA because it did not disclose whether interest was accruing, the interest rate being applied or itemize the debt between principal and interest.  Defendant moved to dismiss, contending that the letter accurately stated the amount of the debt, and that the FDCPA did not require stating if interest may be accruing.  The court rejected the argument, and denied the motion, finding that debt collectors must disclose the accrual of interest to satisfy the obligation to state “the amount of the debt” under Section 1692g.

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December 17, 2014 Case Digest

In Johnson v. Yahoo, plaintiff alleged that defendant violated the TCPA by sending text messages to her cell phone without consent.  Defendant moved for summary judgment, arguing the equipment sending the texts was not an ATDS and that the court need not look beyond the statutory definition to decide whether the equipment was subject to the TCPA.  The court first concluded that the definition of an ATDS was permissibly expanded by the FCC, that the court was required to follow the orders of the FCC determining that a predictive dialer is an ATDS even if if does not store or produce numbers using a random or sequential number generator, and that the dispositive issue was whether the messages were sent without human intervention.   The court then denied the motion, finding there was a disputed factual issue on how the system sent the text messages and whether there was a capacity to text without human intervention.

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