Who is Attempting to Collect?

 

 

 

"The law is well settled that FDCPA's definition of debt collector `does not include the consumer's creditors, a mortgage servicing company, or any assignee of the debt." Lal v. Am. Home Servicing, Inc., 680 F. Supp. 2d 1218, 1224 (E.D. Cal. 2010) (citing Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985)); see also Owens v. Bank of Am., N.A., No. 11-cv-4580-YGR, 2012 WL 5340577, at *6 (N.D. Cal. Oct. 25, 2012) (noting that "numerous courts within the Ninth Circuit have found that assignees and servicers on mortgage loans are not `debt collectors' for purposes of the FDCPA" and collecting cases).

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Moreover, "the general rule followed by most courts is that the activity of foreclosing on a property pursuant to a deed of trust—including the activity of providing notice of a foreclosure sale to a consumer—is not collection of a debt within the meaning of the FDCPA." Rivac, 2013 WL 6662762, at *13 (collecting cases); see also Hulse v. Ocwen Federal Bank, FSB, 195 F.Supp.2d 1188, 1204 (D. Or. 2002). Plaintiffs distinguish one of these cases, Junger v. Bank of America, N.A., No. 11-cv-10419 CAS (VBKx), 2012 WL 603262, at *4, on the narrow ground that it involved the act of foreclosing specifically, rather than the pre-foreclosure activities at issue in this case. But the general rule also applies to other foreclosure-related activities like the ones at issue in this case. See Rivac, 2013 WL 6662762, at *13.

 

CREDITOR Defined:

 

BLACKS LAW 9TH - one to who a debt is owed; one who gives credit for money or goods; a person or entity with a definite claim against another, esp. a claim that is capable of adjustment and liquidation.

 

WIKIPEDIA -A creditor is a party (e.g. person, organization, company, or government) that has a claim on the services of a second party. It is a person or institution to whom money is owed.  The first party, in general, has provided some property or service to the second party under the assumption (usually enforced by contract) that the second party will return an equivalent property and service. The second party is frequently called a debtor or borrower. The first party is the creditor, which is the lender of property, service or money.

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FDCPA (15 USC 1692a) - FAIR DEBT COLLECTION PRACTICES ACT (FDCPA): the term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term DOES NOT INCLUDE any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.