Consumer Finance

In Lee v. Wells Fargo Home Mortg., 2013 WL 6561783 (W.D.Va. 2013), Judge Moon found a autodialed debt collection calls to a land-line barred by an existing business relationship. Finally, Plaintiff claims Defendant violated 47 U.S.C. § 227 of TCPA. Section 227(b)(1)(B) of the TCPA prohibits using an automated telephone dialing system (“ATDS”) to initiate any telephone call to any… Read More

In Sepehry-Fard v. Department Stores National Bank, 2013 WL 6574774 (N.D.Cal. 2013), Judge Orrick, among other things, found that a debtor had failed to properly plead negligence and TCPA claims against his credit card company.  As to Negligence, Judge Orrick found: In his negligence cause of action, plaintiff alleges that the Financial Entities harassed, intimidated and trespassed on plaintiff and… Read More

In Fagen v. Carnow Acceptance Co., 2013 WL 6283653 (Wis.App. 2013), the Wisconsin Court of Appeal held: Fagen argued that the court failed to determine at trial whether Carnow Acceptance violated WIS. STAT. § 425.206(2)(a) by committing a breach of the peace. See WIS. STAT. § 425.206(2)(a) and (3). Carnow Acceptance stipulated at the hearing that a breach of peace… Read More

In Iniguez v. CBE Group, Inc., 2013 WL 6331207 (E.D.Cal. 2013), Judge Mendez denied a Motion for Reconsideration that sought to argue his previous conclusion that the TCPA does, in fact, apply to auto-dialed debt collection calls to cellular telephones.  The three cases cited and briefly discussed by CBE in this motion for reconsideration fail to show how manifest injustice… Read More

In Hill v. Equifax Information Services, LLC, 2013 WL 6241043 (M.D.N.C. 2013), Judge Eagles found that FCRA provides no cause of action against a furnisher for failing to report a debtor’s positive trade-line to a consumer reporting agency.  The facts were as follows: Mr. Hill has alleged several causes of action against Dell, all of which stem from the absence… Read More

In Castellanos v. Quality Nissan, Inc., 2013 WL 6234205 (Cal. App. 4 Dist. 2013), the Fourth District Court of Appeal, Division Three in an unpublished decision found the standard form RISC arbitration clause to be unconscionable, and affirmed the trial court’s denial of the dealership’s petition to compel arbitration.  The Court of Appeal mentioned, in particular, the issue with the appellate procedure… Read More

In Fried v. Sensia Salon, Inc., 2013 WL 6195483 (S.D.Tex. 2013), Judge Atlas found that whether an autodialer was used to send text messages under the TCPA was a question best addressed by the FCC, not by the Courts.  Sensia asserts that the “question of whether this system is an unlawful autodialer is primed for resolution by the FCC.” FN27… Read More

In Munro v. King Broadcasting Co., 2013 WL 6185233 (W.D.Wash. 2013), Judge Robart held that a consumer can revoke previously provided consent to receive text messages under the TCPA. As King points out, the TCPA is silent on whether a consumer may revoke previously-granted consent to receive text messages. (Mot. at 4.) It is clear under the statute that damages… Read More

In Green v. Creditor Iustus Remedium, LLP, 2013 WL 6000967 (E.D.Cal. 2013), Judge O'Neill denied a debt collection law firm's Motion to Dismiss, finding the Plaintiff's Complaint to adequately state a claim under the Rosenthal Act.  First, Judge O'Neill found Plaintiff's harassment claim adequately pleaded. Defendant next argues that Plaintiff's factual allegations are insufficient to “prove the allegations of his complaint.” Doc.… Read More

In Wright v. General Motors Acceptance Corp., --- Fed.Appx. ----, 2013 WL 6137482 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit affirmed in an unpublished opinion that an automobile customer who paid a small sum of money to set up his right to bring an NOI class action lacked UCL standing to bring the claim.  On April… Read More

In Ashley v. General Elec. Capital Corp., 2013 WL 6133562 (M.D.Fla. 2013), Judge Steele allowed a TCPA case to go forward on a wrongfully called party theory.  In early June 2012, plaintiff received a telephone call to her cellular phone from defendant. (Id., ¶ 14.) Defendant left a prerecorded voice mail for a person by the name of “Rosa,” seeking… Read More

In Smith v. Hunt & Henriques, 2013 WL 6141416 (N.D.Cal. 2013), Judge Lloyd granted summary judgment to a debt collection law firm who properly validated a debt following a debtor’s demand for validation. H & H says that it is a law firm that collects outstanding financial obligations referred to it by its clients. (Dkt. 48–1, Hunt Decl. ¶ 2).… Read More

In Fields v. Mobile Messengers America, Inc., 2013 WL 6073426 (N.D.Cal. 2013), Judge Alsup denied certification of a TCPA class action due to individualized inquiries on the issue of consent. Plaintiffs are consumers who claim to be victims of a cell-phone scam known as “cramming.” This is the practice of “placing unauthorized, misleading, or deceptive charges on a consumer's telephone… Read More

Watch the CFPB conference on auto finance here:  http://www.consumerfinance.gov/blog/live-from-the-cfpb/ "It makes no difference if the lender intended to discriminate:  the outcome and the result is the same".  Richard Cordray, 11.14.13  Cordray says that the CFPB does not have jurisdiction over auto dealers, but it does have jurisdiction over auto lenders.  Cordray says that the lender's allowing the dealer discretion to… Read More

In Leyse v. Clear Channel Broadcasting, Inc., --- Fed.Appx. ----, 2013 WL 5926700 (6th Cir. 2013), the 6th Circuit Court of Appeals  depublished its September 6, 2012 opinion, that we discussed (http://www.calautofinance.com/?p=3120).  The Court’s September 6, 2012 decision had given Chevron deference to the FCC’s ruling permitting the defendant’s calls to Leyse’s residential telephone number and delivery of a prerecorded… Read More

"The way in which proposed rules might define “collectors” would be critical to determining the scope of the proposed rules. The Bureau is especially interested in information bearing on whether a rule under the Dodd-Frank Act would be useful to protect consumers from the conduct of creditors collecting in their own names on debts arising out of consumer credit transactions." … Read More

In Mashiri v. Ocwen Loan Servicing, LLC, 2013 WL 5797584 (S.D.Cal. 2013), Judge Lorenz found a TCPA claim adequately pleaded.  First, Judge Lorenz rejected the Defendant’s argument that the TCPA does not apply to debt collectors placing calls to wireless telephone numbers by use of an autodialer: The TCPA contains separate provisions for calls made to residential telephone lines and… Read More

CFPB Director Cordray responded yesterday to the Senate's request for information on the Bureau's methodology for determining discrimination in auto lending.  Cordray's 11.4.2013 Letter  The CFPB's methodology uses surname and geographical approaches, and "makes case-by-case assessments of whether to pursue supervisory or enforcement activity in response to statistically significant disparities”. Read More

We previously reported on Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Judge Sammartino held that the absence of consent is not a… Read More

The FCC’s February 2012 telemarketing sales rule takes effect tomorrow, requiring telemarketers to have "prior express written consent" before using autodialers to engage in telemarketing.  The February 2012 rule requires telemarketers making autodialed or prerecorded calls to consumer landline or wireless numbers to obtain prior express written consent, thus eliminating the “established business relationship” exception that allowed telemarketers to make… Read More