Consumer Finance

In Knutson v. Schwan's Home Service, Inc., 2013 WL 3746118 (S.D.Cal. 2013), Judge Curiel vacated and remanded for further consideration a Magistrate’ Judge’s order requiring a TCPA class-action plaintiff to produce an outbound dial list.   Schwan's operates a grocery delivery service. In addition to delivering groceries to their primary customers, Schwan's also made deliveries on behalf of NutriSystem, Inc. to… Read More

In Heathman v. Portfolio Recovery Associates, LLC, 2013 WL 3746111 (S.D.Cal. 2013), Judge Gonzalez stated that a debt purchaser’s failure to identify the original creditor by name in the debt purchaser’s form debt collection complaint in state court violated the Rosenthal Act because it render the complaint deceptive and misleading to the least sophisticated consumer. “To preserve the protections and… Read More

In Roy v. Dell Financial Services, LLC, 2013 WL 3678551 (M.D.Pa. 2013), Judge Caputo held that calls to an 800 # for the purposes of debt collection are not subject to the TCPA. The TCPA was “[e]nacted in 1991 as part of the Federal Communications Act” to “deal with an increasingly common nuisance—telemarketing.” ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d… Read More

In Volpe v. Caribbean Cruise Line, Inc., 2013 WL 3724858 (N.D.Ill. 2013), Judge Guzman found that the Plaintiff stated a claim under the TCPA notwithstanding defendant's argument that plaintiff's complaint triggered the defense of consent. The TCPA prohibits any person from “mak[ing] any call ... using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number… Read More

In Keim v. ADF MidAtlantic, LLC, 2013 WL 3717737 (S.D.Fla. 2013), Judge Marra allowed a rule an FRCP 68 Offer to moot a Plaintiff's TCPA class action. Plaintiff seeks statutory damages at $500.00 per text message for negligent violations of the Act, statutory damages of up to $1,500.00 per text message for each willful violation of the Act, an injunction requiring Defendants… Read More

In Masters v. Wells Fargo, 2013 WL 3713492 (W.D. Tex. 2013), here, Judge Sparks found that a Rule 68 Offer in a TCPA Class Action – that was amended in a reply brief to accommodate additional calls alleged by the named Plaintiff – mooted a Plaintiff’s individual claim and requiring dismissal of the Plaintiff’s class action. Masters's Response makes much… Read More

The CFPB published two bulletins today purporting to hold all entities under its jurisdiction accountable for unlawful debt collection practices.  The first bulletin, here, proclaims that “It doesn’t matter who is collecting the debt — unfair, deceptive, or abusive practices are illegal", and emphasizes that both third-party collectors and creditors are responsible.  The CFPB will be examining (1) Collecting additional amounts, such as interest,… Read More

In Gillette v. First Premier Bank, 2013 WL 3205827 (S.D.Cal. 2013), Plaintiff's counsel employed a strategy purportedly designed to secure a waiver of arbitration clause.  Plaintiff filed a small-value Rosenthal Act claim and settled it with the defendant.  However, Plaintiff also had filed a federal class action under Penal Code 632 -- California's call recording statute.  Defendant moved to compel arbitration of… Read More

In In re Henderson, 2013 WL 3356128 (Bkrtcy.D.Nev. 2013), the Nevada Bankruptcy Court found the ipso facto clause in the standard form automobile RISC did not allow repossession merely due to the filing of bankruptcy and, accordingly, rejected debtors’ reaffirmation of their automobile RISCs as not being in the debtors’ best interests under Nevada law. A creditor's right to repossession… Read More

In Moriarity v. Nationstar Mortg., LLC, 2013 WL 3354448 (E.D.Cal. 2013), Magistrate Judge Snyder followed the FCC regulations and found debt collection calls to land-lines exempt from the TCPA. Plaintiff's second claimed violation of the TCPA is of 47 U.S.C. § 227(b)(1)(B). This section makes it unlawful for a person as described above “to initiate any telephone call to any… Read More

In Schlegel v. Wells Fargo Bank, NA, --- F.3d ----, 2013 WL 3336727 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit held that a mortgage lender was not a debt collector under the FDCPA. The Schlegels next argue that their complaint adequately alleged that Wells Fargo meets the second definition of debt collector, which as noted above… Read More

In Lovejoy v. Bank of America, N.A., 2013 WL 3360898 (N.D.Cal. 2013), Judge Ryu found sections 1785.25(b)-(c) of the CCRAA to be pre-empted by FCRA, even though section 1785.25(a) was not.  Plaintiffs argue that these sections not preempted because they are “informal remedies that compliment Section 1785.25(a),” which bars furnishers from re-porting incomplete or inaccurate information. (Pls.' Opp'n 9–10.) The… Read More

In Brown v. DIRECTV, LLC, 2013 WL 3273811 (C.D.Cal. 2013), Judge Gee ordered a TCPA case to arbitration, notwithstanding the Plaintiff’s argument that the claim was outside the scope of the clause.  This action is about whether collection calls were legal under TCPA. Other district courts have compelled arbitration of TCPA claims in similar circumstances. See, e.g., Cayanan v. Citi… Read More

In Doyle v. Midland Credit Management, Inc., --- F.3d ----, 2013 WL 3242148 (2d Cir. 2013), the Second Circuit Court of Appeals found that no formal Rule 68 offer was required to moot a Plaintiff’s FDCPA case when the Defendant made an offer that would have fully satisfied the Plaintiff’s damages. Doyle contends that the district court erred in dismissing… Read More

In Lusskin v. Seminole Comedy, Inc., 2013 WL 3147339 (S.D.Fla. 2013), Judge Scola -- who authored the Mais decision (http://www.calautofinance.com/?p=4199) -- declined (again) to follow the FCC's 1992 Order, stating that it deviated from the TCPA's express language.  Accordingly, Judge Mais held that merely providing one's cellular telephone number does not equate to express consent to receive text messages. The TCPA is clear that… Read More

In Clayton v. Aaron's Inc., 2013 WL 3148174 (E.D.Va. 2013), Judge Spencer addressed whether a consumer who received debt collection text messages stated a claim under the TCPA.  Judge Spencer held that the consumer could not. § 227(b)(1)(A)(iii) prohibits any person within the United States from making any call (or text message) to a cell phone number, other than for emergency purposes… Read More

In Polk v. Legal Recovery Law Offices--- F.R.D. ----, 2013 WL 3147728 (S.D.Cal. 2013), Judge Whelan refused to apply the Iqbal/Twombly pleading standard to affirmative defenses.  Although Judge Whelan ultimately found the affirmative defense not adequately pleaded factually, Judge Whelan found that 'good faith' could be an affirmative defense to a Rosenthal Act claim -- unlike the FDPCA. A good faith defense… Read More

In Laguilles v. Time Warner , the Appellate Division of the Los Angeles County Superior Court found that the Rosenthal Act's language allowing claims to be filed "in a court of competent jurisdiction" (Civ. Code 1788.30(f)) did not prohibit enforcement of an arbitration clause on the basis that arbitration would have resulted in waiver of a statutory right. Read More

In Lynn v. Monarch Recovery Management, Inc., 2013 WL 3071334 (D.Md. 2013), Judge Quarles refused to certify his opinion that a call to a land-line made over VoIP Protocol fell within the TCPA’s “charged call” liability provisions rather than the TCPA’s “land-line” exemption. The facts, recited in more detail below, were that the Plaintiff set up his land-line through VoIP… Read More

The Supreme Court of the United States just issued its decision in American Express v. Italian Colors, Inc., here  The syllabus of the Court summarizes the decision as follows: The FAA does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.… Read More