940 F. Supp. 2d 1151
N.D. Cal.2013Background
- Pasquale sues under FDCPA and Rosenthal Act alleging Nelson & Kennard failed to disclose it was a debt collector in follow-up voicemails.
- Nelson & Kennard contends follow-ups are not communications under FDCPA and cites least sophisticated debtor standard.
- Defendant asserts bona fide error defense; training and procedures allegedly prevented violations.
- Plaintiff challenges that attorneys are exempt from Rosenthal Act debt-collector definition only for lawyers, not firms.
- Court finds voicemail messages are subsequent communications and subject to §1692e(11) disclosure.
- Court grants summary judgment for Nelson & Kennard on the FDCPA claim, reserves ruling on Rosenthal Act theory and related issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must follow-up voicemails disclose debt-collector status? | Pasquale argues amendment requires disclosure in all follow-ups; non-disclosure violates §1692e(11). | Nelson & Kennard argues follow-ups need not disclose if not misleading; presses Reed/Pressley line. | Follow-up voicemails must disclose debt-collector status. |
| Is the bona fide error defense available here? | Pasquale contends defense requires elaborate procedures; training evidence insufficient. | Kennard declares training, scripts, review, and testing show procedures were reasonably adapted. | Bona fide error defense applies; violations considered unintentional. |
| Is Nelson & Kennard a ‘debt collector’ under the Rosenthal Act? | Pasquale argues Rosenthal Act applies to law firms; defendant may be liable as debt collector. | Court should treat firm under Rosenthal Act exemptions for attorneys; authority split; declines to rule. | Court declines to rule on Rosenthal Act debt-collector status. |
Key Cases Cited
- Donohue v. Quick Collect, Inc., 592 F.3d 1027 (9th Cir. 2010) (applies least sophisticated debtor standard under FDCPA §1692e)
- Schwarm v. Craighead, 552 F. Supp. 2d 1056 (E.D. Cal. 2008) (amendment to §1692e(11) differentiates initial vs. subsequent communications)
- Pressley v. Capital Credit & Collection Serv., Inc., 760 F.2d 922 (9th Cir. 1985) (follow-up notices not ‘communications’ under pre-1996 §1692e(11))
- Wilhelm v. Credico, Inc., 519 F.3d 416 (8th Cir. 2008) (illustrates burden of proving procedures to avoid error in FDCPA context)
- Lensch v. Armada Corp., 795 F. Supp. 2d 1180 (W.D. Wash. 2011) (voicemail communications deemed ‘communications’ under FDCPA; broad view)