Consumer Finance

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

In Morgan v. Branson Vacation & Travel, LLC, 2013 WL 5532228 (W.D.Okla. 2013), Judge Cauthron granted partial summary judgment on a TCPA claim, finding that ‘good faith’ was no defense to the claim. It is undisputed that Branson placed at least 37 calls to the 6743 number and that those calls were made with an automatic dialing system subject to… Read More

In Ajib v. Financial Assistance, Inc., 2013 WL 5553249 (E.D.Cal. 2013), Judge Boone addressed two claims commonly raised by in pro per plaintiffs:  that defendants violated the FTC Act and that an injunction to enjoin further FDCPA violations is warranted.  Judge Boone found neither claim viable. Plaintiff alleges that the actions of the defendants were in violation of the FTCA… Read More

In Callahan v. Equifax Information Services LLC, 2013 WL 5503949 (N.D.Cal. 2013), Judge Alsup found that Plaintiff could state a FCRA claim in an SSN-swap situation.  The proposed pleading alleged that Plaintiff’s credit reports indicated that a SunTrust mortgage account was associated with her. Plaintiff disputed the mortgage account and the CRAs notified SunTrust. Although plaintiff's SSN did not match… Read More

In Diaz v. First American Buyers’ Protection Corp., -- F.3d – (9th Cir. 2013), the Court of Appeals for the Ninth Circuit held that an unaccepted Rule 68 offer to a class-plaintiff on an individual basis did not moot the claim, holding that an unaccepted Rule 68 offer that would fully satisfy a plaintiff's claim is insufficient to render the… Read More

In Onley v. Job.com, Inc., 2013 WL 5476813 (E.D.Cal. 2013), Judge O’Neill found TCPA standing notwithstanding the fact that the Plaintiff was not the subscriber of the cell phone. Plaintiff Peter Olney sued Defendant Job.Com, complaining that Job.com used an “automatic telephone dialing system” (“ATDS”) to call Plaintiff's cellular telephone in an effort to sell or solicit its services without… Read More

In Todd v. Collecto, Inc., --- F.3d ----, 2013 WL 5452071 (2013), the Court of Appeals for the Seventh Circuit held that the FDCPA protects third person/non-debtors in only limited circumstances.  The district court had dismissed Todd's complaint for failure to state a claim for relief, finding that Todd lacks standing to bring the FDCPA claims because he is not… Read More

In Harrelson v. CarMax Auto Superstores California, LLC, 2013 WL 5348087 (Cal.App. 4 Dist. 2013), Harrelson filed a class action against CarMax, pleading the first class to be any person who in the four years preceding the filing of the complaint purchased a car from CarMax, signed a retail installment contract (RIC), and made a deferred down payment and whose… Read More

In Bresko v. M & T Bank Corp., 2013 WL 5328241 (M.D.Fla. 2013), Judge Moody rejected the argument that efforts to revoke consent under the TCPA is not evidence that the consumer gave express consent in the first place.  The Plaintiff alleged that M & T Bank Corporation (“M & T”) called her mobile cell phone to make collection calls… Read More

A Glendale, California-based debt collector  will pay $1 million to settle FTC charges that the defendants violated federal law.  This is the first FTC action against a debt collector who used text messaging to attempt to collect debts in an unlawful  manner.  The message here, according to the FTC, is that a text message is debt collection "communication" under the FDCPA that must include… Read More

In Levy v. Receivables Performance Management, LLC--- F.Supp.2d ----, 2013 WL 5310166 (E.D.N.Y. 2013), Judge Bianco found an absence of consent under the TCPA for a debt collector calling a consumer's cellular telephone where the consumer had given a prior cellular number to the creditor. With respect to the issue of prior express consent, both the FCC and various federal courts… Read More

We reported previously on the pending GroupMe petition, as well as others, pending before the FCC regarding whether the TCPA's definition of autodialer requires a 'present' capacity to store numbers.  (http://www.calautofinance.com/?p=3853) A District Court in Alabama recently held that the TCPA so requires: In Hunt v. 21st Mortg. Corp., 2013 WL 5230061 (N.D.Ala. 2013), Judge Acker was deciding a discovery dispute between the… Read More

In Hillis v. Trans Union, LLC, --- F.Supp.2d ----, 2013 WL 5272922 (E.D.Pa. 2013), Judge Davis allowed a FCRA claim to get past the pleading stage.  The dispute arose out of an automobile loan that Plaintiff and his ex-wife entered into during their marriage.In 2007, Plaintiff's marriage ended in divorce, and the Texas court's divorce decree awarded the underlying vehicle… Read More

In Whaley v. T-Mobile, USA, Inc., 2013 WL 5155342 (E.D.Ky. 2013), Judge Bunning ordered a TCPA/Unintended Recipient case to arbitration based on an arbitration clause that the defendant actually had with the recipient on an unrelated account.  Beginning in July 2012 T–Mobile used an automatic dialing system to call plaintiff regarding a debt purportedly owed by a third person, Thomas… Read More

In Black v. Midland Credit Management, Inc., 2013 WL 5140181 (W.D.Wash. 2013), Judge Leighton found that a debtor’s failure to list her FDCPA claim in her bankruptcy schedules estopped her from later attempting to bring the FDCPA claim post-discharge.  Judge Leighton explained: Judicial estoppel “is an equitable defense that precludes a party from gaining an advantage by as-serting one position,… Read More

In Davis v. Hollins Law, --- F.Supp.2d ----, 2013 WL 4863849 (E.D.Cal. 2013), Judge Karlton held that the fact that a debtor took out a business card was not dispositive of the (in)applicability of the FDCPA and Rosenthal Act.  In Davis, it was indisputed that the debtor incurred the debt on a business credit card, that the credit card was… Read More

In Gonzalez v. Metro Nissan of Redlands, 2013 WL 4858770 (Cal.App. 4 Dist. 2013), an unpublished decision, the Court of Appeal entered the Sanchez fray, and came down on the side of enforcing the arbitration clause in the LawPrinting RISC.   "Because we have no guidance from the Supreme Court, and because we cannot rely on the decisions of our sister courts,… Read More

In Knutson v. Schwan's Home Service, Inc., 2013 WL 4774763 (S.D.Cal. 2013), Judge Curiel certified a TCPA class action in what appears to be the first TCPA class certified within the 9th Circuit outside of the “single source” context. Schwan's is in the business of delivering frozen foods to residential customers. From November 2008 through November 13, 2011, Schwan's contracted… Read More

In Iniguez v. The CBE Group, --- F.Supp.2d ----, 2013 WL 4780785 (E.D.Cal. 2013), Judge Mendez addressed the propriety of a class-action lawsuit brought against a debt collection agency under TCPA by an “unintended recipient” of collection calls.  The lawsuit was based on Plaintiff's allegations that Defendant placed numerous calls to her cell phone seeking to collect a debt owed… Read More

In Lyons v. Michael & Associates, 2013 WL 4680179 (S.D.Cal. 2013), Judge Burns refused to apply the ‘discovery rule’ to toll the FDCPA statute of limitations with regard to claims arising from an underlying debt collection lawsuit. A FDCPA claim must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The parties… Read More