In Garcia v. Babb, LLP, the district court granted defendant’s motion to dismiss plaintiff’s FDCPA lawsuit because plaintiff had failed to plausibly allege that the debt underlying the case was a consumer transaction, and plaintiff appealed. The appellate court affirmed, finding that plaintiff’s failure to describe the underlying transaction, or give an indication of what was purchased, what service was paid for or otherwise allege that the item or service was used for a personal purpose, doomed the FDCPA claim.
In DeCapri v. Shapiro Brown, plaintiff filed a putative class action alleging that defendant’s validation notice violated the FDCPA because it omitted the phrase “by the debt collector” when describing that unless a dispute was received, the debt would be assumed valid. Defendant moved to dismiss, arguing that the validation notice when read in its entirety, conveyed to the consumer that the assumption of validity could only relate to “the debt collector” and the omission was not material. The court denied the motion, finding that the omission of the “by the debt collector” phrase, standing alone, was sufficient to state a viable claim and that such an omission would be material.
In Ikuseghan v. Multicare Heath System, plaintiff alleged that defendant was liable under the TCPA for unsolicited automated telephone calls that were made to his cell phone from defendant’s agent attempting to offer alternative health insurance. Defendant moved to dismiss, arguing that it was not liable under the TCPA for calls made by a separate entity. The court denied the motion, concluding that defendant could be liable under the TCPA if the caller was an agent of defendant, and that plaintiff had plausibly alleged that there was an agency relationship between defendant and the caller
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