Calif. Appeals Court Rules Collector Fixed Violation Promptly, But Restores Suit Because Named Plaintiff Was ‘Picked Off’

A California Appeals Court has upheld that a collector appropriately used a cure provision in the Rosenthal Fair Debt Collection Practices Act in fixing a type-size issue in a collection letter, but overruled a lower court that doing so allowed an entire class action against the collector to be dismissed.

A copy of the ruling in Timlick v. National Enterprise Systems, Inc., can be accessed by clicking here.

The plaintiff received a collection letter from the defendant, which included required disclosures that were not in 12-point type, as proscribed by the Rosenthal Act. The plaintiff filed a class-action lawsuit against the defendant, seeking to include anyone who received a similar letter. Nine days after it was served with the suit, the defendant sent the plaintiff a properly formatted collection letter. The defendant filed to have the suit dismissed, because the Rosenthal Act includes a 15-day period for correcting curb violations, a motion that was granted by a state Superior Court judge. In dismissing the complaint against the plaintiff, the judge also dismissed the entire class-action. The plaintiff appealed.

The Appeals Court ruled that the lower Court was right to determine that the defendant was covered under the 15-day cure provision, but was not allowed to “pick off” a named plaintiff in order to get an entire class dismissed. The defendant agued it was not attempting to pick off the named plaintiff; it was just fixing the original mistake. But because it allegedly did not cure the mistake of any other potential plaintiff, the defendant “voluntarily gave special treatment to the named plaintiff only, resulting in the elimination of her standing to maintain a putative class action,” the Appeals Court ruled.

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