Consumer Finance

In Olney v. Job.com, Inc., 2014 WL 1747674 (E.D.Cal. 2014), Judge O’Neill found trial issues of fact and denied summary judgment to a TCPA defendant who the Resume–Now's resume posting service, a service that is offered only to subscribing members and to whom Plaintiff had provided his cellular telphone number. Plaintiff misinterprets Satterfield. “The FCC appears to have intended in… Read More

In Meyer v. Receivables Performance Management, LLC, 2014 WL 1744284 (W.D.Wash. 2014), Judge Jones denied to stay a TCPA action based on the primary jurisdiction argument, denied Plaintiff’s motion for discovery as to dialer-lists, and denied Plaintiff’s request to delay filing a Motion for Class Certification. The District Court declined to stay the Action based on the Primary Jurisdiction argument.… Read More

In Masuda v. Citibank, N.A., --- F.Supp.2d ----, 2014 WL 1759580 (N.D.Cal. 2014), Judge Hamilton allowed a Rosenthal Act and Intrusion on Seclusion claim to proceed by a third party who was not the debtor (but was alleged to be). Citibank contends that the first cause of action fails to state a claim because Masuda has not alleged facts showing… Read More

In Dayhoff v. Wells Fargo Home Mortgage, Inc. (M.D. Cal. 2014) 2014 WL 466151, Judge Dalton found that collection on a promissory note was a permissive counter-claim to a Plaintiff’s TCPA claim, and, therefore, the District Court would decline to exercise jurisdiction over the collection claim. Here, the Court has federal question subject matter jurisdiction over Plaintiff’s TCPA claim. Mims… Read More

In Mega RV Corporation v. HWH Corporation, 2014 WL 1691371 (Cal.App. 4 Dist. 2014), here, the California Court of Appeal held that the Song Beverly Act does not apply to component part manufactures unless they gave an express warranty.    Civ. Code section 1792, part of the Song-Beverly Consumer Warranty Act, provides that every retail sale of consumer goods is accompanied… Read More

In Hunt v. 21st Mortg. Corp., 2014 WL 1664288 (N.D.Ala. 2014), Judge Acker allowed Plaintiff’s TCPA expert Robert Biggerstaff to offer opinion testimony that the Defendant did not manually dial the calls to Plaintiff’s cellular telephone. Judge Acker’s decision was flavored by the fact that the Defendant installed a new dialer system within days after Plaintiff’s counsel’s wife filed the… Read More

In Elkins v. Melco Health Solutions, Inc., here, Judge Adelman found no TCPA violations for calls to a consumer about her health care prescriptions and/or needs. The Court finds that Plaintiff’s TCPA claim is barred because she gave her express prior consent to be called at the number she provided when she gave that number at the time of enrollment as… Read More

In Strobel v. RJM Acquisitions, Inc, here, Judge Seybert found that a debt collector’s reference to it’s A+ rating with the BBB was not a deceptive or unfair act under the FDCPA. Here, Plaintiff argues that the Letter’s inclusion of an A† rating from the BBB bolsters Defendant’s reputation and decreases the likelihood that the least sophisticated consumer would question… Read More

In Andersen v. Harris & Harris, Ltd., 2014 WL 1600575 (E.D.Wis. 2014), Judge Stadtmeuller found that a TCPA defendant met its burden of proof of demonstrating that the Plaintiff provided express consent to be called on his cellular telephone, and rejected the Plaintiff’s self-serving ambiguous evidence to the contrary. As mentioned above, H & H cannot have violated the TCPA… Read More

In Grochowski v. Daniel N. Gordon, P.C., 2014 WL 1516586 (W.D.Wash. 2014), Judge Zilly addressed the impact of a “charge-off” on a creditor and debt collector’s right to collect the contractual rate and the state pre-judgment interest rate. Plaintiff contends that, in “charging off” plaintiff's debt, Capital One waived its right to collect interest at the contractual rate and, as… Read More

In Strand v. Corinthian Colleges, Inc., 2014 WL 1515494 (W.D.Mich. 2014), Judge Bell found that a TCPA Plaintiff must plead and identify the telephone number called in order to state a claim under the TCPA. Plaintiff cites one case for the proposition that Rule 8 and the cases governing its application do not require her to plead the cellular telephone… Read More

In Swelnis v. Universal Fidelity L.P., 2014 WL 1571323 (N.D.Ind. 2014), Judge Cherry addressed discovery in an FDCPA class action.  First, Judge Cherry required disclosure of “Training Materials”: Plaintiff's Interrogatory No. 9 and Document Request Nos. 4–6, 8, and 11 each seek infor-mation—specifically: training manuals and other relevant documents—that relate to Defendants' Af-firmative Defense of bona fide error. Defendants objected… Read More

In Gillespie v. Svale Del Grande, Inc., 2014 WL 1509813 (Cal.App. 6 Dist. 2014), the Sixth District Court of Appeal found that Concepcion trumped the CLRA’s anti-class action waiver, but remanded the matter to the superior court to determine whether other unconscionable provisions could be severed. In this case, pursuant to Concepcion, supra, 131 S.Ct. 1740, we determine that the… Read More

In Lamont v. Furniture North, LLC, 2014 WL 1453750 (D.N.H. 2014), Judge McCafferty found that a Husband, whose wife had provided his cellular telephone number in connection with a purchase transaction, still stated a claim under the TCPA because the husband had not given prior express consent to be called on his cellular telephone number. Except where otherwise indicated, the… Read More

In Heinrichs v. Wells Fargo Bank, Judge Alsup stayed a TCPA class action based on the Primary Jurisdiction of the FCC and its intention to rule on pending petitions relating to the issues raised by the 7th Circuit's Soppet decision and the 11th Circuit's Osorio decision. A copy of Judge Alsup's Order is here.  The Plaintiff had argued that there… Read More

In Cox v. Community Loans of America, Inc., 2014 WL 1216511 (M.D.Ga. 2013), Judge Land found that a private right of action existed against a vehicle title-loan company under the Military Lending Act, and found that class certification would be appropriate for charging loans that exceed the MLA’s 36% limit. Plaintiffs seek to represent a class of active duty military… Read More

In Sojka v. DirectBuy, Inc., 2014 WL 1304234 (N.D.Ill. 2014), Judge Feinerman found a TCPA class action adequately pleaded.  The facts were as follows: In this consolidated suit, Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of three putative classes, and Mark Sojka, individually, allege that DirectBuy, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227… Read More

In Little v. Portfolio Recovery Associates, LLC, 2014 WL 1400660 (D.Kan. 2014), Judge Martin denied in part and granted in part a debt collector’s Motion to Dismiss an FDCPA claim based upon call frequency.  Judge Marten detailed the law on the number of calls permitted and/or permitted per day, and found that, at the Motion to Dismiss stage, the Plaintiff… Read More

In Matlock v. United Healthcare Services, Inc., 2014 WL 1155541 (E.D.Cal. 2014), Judge Englund stayed a TCPA case based on the Primary Jurisdiction argument in a wrong-party TCPA case. The crux of Plaintiff's complaint is that Defendant violated the TCPA when it initiated calls to his cell phone without his consent. Defendant purportedly nonetheless had the consent of the prior… Read More

In Imburgia v. DIRECTV, Inc.--- Cal.Rptr.3d ----, 2014 WL 1347748 (Cal.App. 2 Dist. 2014), the Court of Appeal found that an arbitration clause that determined enforceability of a class action waiver by reference to state law was not inconsistent with Concepcion, and found the class action waiver prohibited by the CLRA. In addition to stating that the parties waive their rights… Read More