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Is a trustee giving a foreclosure notice in California a debt collector under the FDCPA

Whether a trustee giving a foreclosure notice under a deed of trust in California is a debt collector under the Fair Debt Collection Practices Act (FDCPA) is the topic of this blog post. There is a somewhat widespread misconception that giving notice of a foreclosure sale as required by the California Civil Code makes a trustee under a deed of trust in California a debt collector. The answer is NO!

In fact no published case from any California Court has held otherwise. Giving notice of a foreclosure sale in California does NOT constitute debt collection activity under the FDCPA.

The recent case of Pfeifer v. Countrywide Home Loans, Inc., (2012) 211 Cal. App. 4th 1250, 1264, is very instructive. While the Pfeifer’s scored a partial victory in that that a California Court of Appeal reversed a judgment entered against them on their claims for wrongful foreclosure, declaratory relief and injunctive relief, the Court also stated in pertinent part that “The Pfeifers have alleged that Recon sent a notice of the pending foreclosure sale, but this allegation is insufficient to show that Recon engaged in debt collection activities bringing it under the ambit of the FDCPA. We agree with those courts that have held that giving notice of a foreclosure sale to a consumer as required by the Civil Code does not constitute debt collection activity under the FDCPA. We need not consider the Pfeifers’ contention that the FDCPA creates a private cause of action for injunctive relief. Since we conclude that the Pfeifers have not made a claim under the FDCPA, we need not consider what remedies are available under this Act.” The Court Pfeifer v. Countrywide Home Loans, Inc., 211 Cal. App. 4th 1250 supra at 1283 affirmed the judgment entered against the Pfeifer’s on all of the remaining causes of action including the claim for damages under the FDCPA. This case was a partial victory but NOT on the claim for damages under the FDCPA.

And in at least two published cases of United States District courts in the Ninth Circuit have held that “foreclosing on a property pursuant to a deed of trust is not a debt collection within the meaning” of the FDCPA. See Izenberg v. ETS Services, LLC (C.D.Cal. 2008) 589 F.Supp.2d 1193, 1199; see also Hulse v. Ocwen Federal Bank, FSB (D.Or. 2002) 195 F.Supp.2d 1188, 1204.

Anyone under the impression that sending a debt validation notice to a California trustee giving a foreclosure notice under a deed of trust will work as a foreclosure defense strategy is very mistaken and needs to read the cases cited herein.

Attorneys or parties in California who would like to view a portion of a 22 page sample complaint to stop a trustee foreclosure sale that includes a verified complaint, ex-parte application with points and authorities, sample declarations, and a proposed order sold by the author can see below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California and Federal legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

To view over 300 sample legal documents for use in California and Federal Courts sold by the author of this blog post visit View over 300 sample legal documents for sale

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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