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.
In Kruckenberg v. McKellar Group, plaintiff alleged that defendant violated the FDCPA in 13 different ways while attempting to collect a debt that plaintiff alleged was not owed. Defendant moved to dismiss, arguing that the claims were vague and conclusory, and therefore were not sufficient to plausibly state a claim. The court examined each claim, and granted the motion in part. Specifically, the court concluded that plaintiff was not required to state the timing or number of calls to state a class for excessive calls. However, the court granted the motion as it related to most of the claims, finding that plaintiff otherwise failed to state how the alleged conduct violated the specific provision of the FDCPA, requiring plaintiff to link the alleged wrongful conduct to the specific FDCPA prohibition.
In Dunlap v. Douglass, plaintiff alleged that defendant violated the FDCPA while attempting to collect an overdue personal income tax. Defendant moved to dismiss, arguing that the tax liability was not a consumer debt under the FDCPA. The court granted the motion, finding an income tax was not the result of a consumer transaction or otherwise subject to the FDCPA.
In Lachi v. GE Capital Bank, plaintiff alleged that defendant violated the FDCPA by continuing to communicate with her after advising defendant that she was represented by counsel. Defendant moved to dismiss, arguing that plaintiff was not a consumer under the FDCPA. The court granted the motion, finding that a letter received by plaintiff but addressed to her former husband was not a communication to her, and that she was not the target of the debt collection activity.
In Kermani v. Joe Pezzuto, plaintiff alleged that defendant violated the FDCPA by sending a letter that falsely implied that it came from an attorney and threatened litigation. Defendant moved to dismiss, arguing that the letter's disclaimer made clear that an attorney had not reviewed the letter. The court agreed, finding that a statement that "no attorney with our law firm has personally reviewed the particular circumstances of your account" eliminated any possibly that a consumer would be mislead that the letter came from an attorney, even if on legal letterhead. The letter also did not mention litigation in any way, and therefore could not have improperly threatened litigation.
In Meyer v. Santander, the appellate court affirmed the district court's entry of summary judgment in favor of defendant, concluding that, though a creditor is not per se exempt from the FDCPA, in this case plaintiff had failed to produce any evidence that defendant's principal business was the collection of debts on behalf of others.
In Olney v. Progressive, plaintiff filed a putative class action alleging that defendant violated the TCPA by calling his cell phone attempting to collect a debt owed by a third party. Defendant moved to dismiss, arguing that plaintiff lacked standing because he was not the intended recipient of the call. The court rejected the motion, finding that plaintiff had standing to assert the claim despite not being the intended recipoent because he was the subscriber and regular user of the phone that had, in fact, received the calls.► Back to News & Resources