Consumer Finance

In Chapman v. First Index, Inc., 2014 WL 840565 (N.D.Ill. 2014), Judge Ellis denied class certification in a TCPA-fax case.  Although Judge Ellis recognized the split of authority, and although the Plaintiff attempted to define the class to exclude those who had provided prior express consent, Judge Ellis still found the class unmanageable due to individualized inquiries. Courts are split… Read More

In Labou v. Cellco Partnership, 2014 WL 824225 (E.D.Cal. 2014), Judge England denied Plaintiff's request for pre-certification discovery, and granted a pre-emptive defense motion to de-certify a class action under facts reminiscent of Soppet:  Plaintiff filed the present complaint on April 30, 2012. She alleges that Defendants began calling Plaintiff's cellular phone number with an automated telephone dialing system to… Read More

In Moriarity v. Nationstar Mortg., LLC, 2014 WL 801021 (E.D.Cal. 2014), in a case filed by an in pro per plaintiff, Judge Ishii “inferred” prior express consent by virtue of the existing debtor creditor relationship, and dismissed the Plaintiff’s TCPA claim. It is the general rule that, “where a valid assignment of a mortgage has been consummated with proper consideration,… Read More

Congratulations to the Firm's client, car2go, who obtained Judgment on the Pleadings in the District Court for the Western District of Washington on its affirmative defense of "prior express consent" in a class action filed under the TCPA.  Eric Troutman, who practices in the Firm’s Orange County Office but who also is a member of the Washington State Bar, represented car2go in the… Read More

In Gragg v. Orange Cab Co., Inc.,  2014 WL 801305 (W.D.Wash. 2014), Judge Lasnik denied Plaintiff's motion to reconsider his previous ruling that Orange Cab did not use a dialer to send text messages for passsengers who ordered cabs in Seattle. Defendants moved for summary judgment based on the undisputed characteristics of its proprietary dispatch notification system. Dkt. # 69. Defendants expressly… Read More

In Quinteros v. MBI Associates, Inc.--- F.Supp.2d ----, 2014 WL 793138 (E.D.N.Y. 2014), Judge Kuntz held that a debt collector's letter purporting to charge a $5.00 Processing Fee for payments by phone or credit card violated the FDCPA because the charge was not set forth by the instrument creating the obligation and was incidental to the debt. On February 22, 2012,… Read More

In a Bulletin and Report, the CFPB warned furnishers of consumer data information to consumer reporting agencies that they must comply with FCRA's re-investigation requirements.  And, in a shot across the bow, the CFPB stated that merely deleting a trade-line does not by itself comply with FCRA's reinvestigation requirements.  The CFPB warned: A furnisher should not assume that it ceases to… Read More

In Mendoza v. UnitedHealth Group, Inc., No. C131553-PJH N.D. Cal. 2014), Judge Hamilton granted a stay of a TCPA case pending outcome of the FCC's ruling on various pending petitions related to ATDS and whether they must possess "present" capacity to randomly generate numbers at the time the call is placed.  A copy of Judge Hamilton's Order can be found… Read More

In Hurrle v. Real Time Resolutions, LLC, 2014 WL 670639, (U.S.D.C. W.D. Wash. CASE NO. C13-5765 BHS 2014), Judge Settle granted a stay of a TCPA case based on the Primary Jurisdiction doctrine, and the Communications Innovators Petition pending before the FCC.    A copy of the Order can be found here.   Read More

In Seamans v. Temple University, --- F.3d ----, 2014 WL 658401 (3d Cir. 2014), the Court of Appeals for the Third Circuit addressed, in matters of first impression, the interplay between the Higher Education Act and the Fair Credit Reporting Act with respect to the responsibilities of an institution of higher education that furnishes information on student loan indebtedness to… Read More

In Claflin v. Mandarich Law Group, LLP, 2014 WL 688962 (N.D.Cal. 2014), Judge Alsup refused to stay a federal FDCPA claim filed against the debt collector’s lawyers in an underlying state court debt collection lawsuit.  The FDCPA plaintiffs argued that the debt collector’s lawyers had improperly filed the state court action in a distant forum in violation of the FDCPA. … Read More

In Bor Pha v. Yia Yang, 2014 WL 654559 (E.D.Cal. 2014), Judge Nunley certified as AFSA class against a car dealership, with a sub-class of Hmong putative classmembers. This is a putative class action brought by Plaintiffs Bor Pha and Nou Lee (“Plaintiffs”). Plaintiffs allege that Defendants Yi a Yang and Yia Auto Sales, Inc.FN2 sold automobiles and arranged financing… Read More

In Taufen v. Messerli & Kramer, P.A., 2014 WL 668019 (D.Minn. 2014), Judge Frank held that an FDCPA plaintiff seeking to prove that a “Notice of Representation” was violated under 15 U.S.C. § 1692c(a)(2) must prove both that a Notice of Representation was given and that the attorney’s name was reasonably ascertainable. Even if the Court were to conclude that… Read More

In Hataishi v. First American Home Buyers Protection Corporation, --- Cal.Rptr.3d ----, 2014 WL 667381 (Cal.App. 2 Dist. 2014), the Court of Appeal for the Second District affirmed the trial court’s denial of class certification in a call-recording case filed under Penal Code § 632. The facts were as follows: A customer placing an inbound call to First American is… Read More

In Hanson v. JQD, LLC, 2014 WL 644469 (N.D.Cal. 2014), Judge Seeborg held that the Davis Sterling Act – in conjunction with the FDCPA -- may constrain a third party debt collector’s right to collect unfettered costs of collection, but found that the legal theory pleaded by the Plaintiffs to be unclear. Although no California appellate court has directly addressed… Read More

A copy of Chief Justice Cantil-Sakauye's order is here. Read More

In Landini v. FIA Card Services, National Association, 2014 WL 587520 (N.D.Cal. 2014), Magistrate Judge Lloyd granted summary judgment on two matters filed by the Sagaria law group alleging that a debt collector’s affirmation of pre-bankruptcy historical reporting after bankruptcy was filed did not result in FCRA liability.  The facts were as follows: Landini opened a credit card account with… Read More

United Healthcare has filed a petition with the FCC essentially taking a run at Soppett.  According to the FCC, United Healthcare indicates that it obtains prior express consent from individuals before placing healthcare-related informational calls to wireless telephone numbers using an automatic telephone dialing system or an artificial or prerecorded voice.   “Unbeknownst to United,” however, “the wireless telephone numbers for… Read More

ACA’s petition was filed on January 31, but was accepted for filing by the FCC on February 11.  ACA’s petition is broad-based, asks the FCC to accomplish the following objectives: • Confirm that not all predictive dialers are categorically automatic telephone dialing systems. •Confirm that “capacity” under the TCPA means present ability. •Clarify that prior express consent attaches to the… Read More

In Miranda v. Integrity Solution Services, Inc., 2014 WL 519239 (D.Colo. 2014), Magistrate Judge Mix ordered discovery of communications between the debt collector and consumer reporting agencies about the debtor’s debt even though no credit reporting allegations were pleaded.  Judge Mix framed the issue as follows: The discovery requests at issue seek information and documents that Defendant provided to the… Read More