The Federal Trade Commission issued revised guidance designed to help businesses comply with the requirements of the Red Flags Rule, which protects consumers by requiring businesses to watch for and respond to warning signs or “red flags” of identity theft. The guidance outlines which businesses – financial institutions and some creditors – are covered by the Rule and what is… Read More
In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 2491052 (S.D.Fla. 2013), Judge Scola certified his previous ruling (http://www.calautofinance.com/?p=4112) for interlocutory appeal to the 11th Circuit Court of Appeals. This would also draw into question subsequent decisions that rely on Mais, including Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013) discussed (http://www.calautofinance.com/?p=4165) – at least… Read More
In Lembach v. Bierman, --- Fed.Appx. ----, 2013 WL 2501752 (4th Cir. 2013), the 4th Circuit Court of Appeals held that allegedly falsely executed foreclosure documents were not actionable under the FDCPA because the documents were accurate, even if improperly executed. The Court of Appeals also held that the general catch-all ‘unfair’ practices provision of the FDCPA did not apply… Read More
The FTC's Weblog post is http://www.business.ftc.gov/blog/2013/06/fcras-furnisher-rule-its-all-about-accuracy-and-integrity The FTC's publication, "Consumer Reports: What Information Furnishers Need to Know" is at http://business.ftc.gov/documents/consumer-reports-what-information-furnishers-need-know Read More
In Oxford Health Plans LLC v. Sutter, --- S.Ct. ----, 2013 WL 2459522 (U.S. 2013), the Supreme Court clarified that Stolt-Nielsen was an exception to the normal rule based solely on the parties' stipulation there that their agreement was silent on the issue of whether a party could arbitrate class claims. Here, there was no stipulation. Accordingly, the arbitrator decided… Read More
In Scott v. Westlake Services, LLC, --- F.Supp.2d ----, 2013 WL 2468253 (N.D.Ill. 2013), Judge Castillo dismissed a TCPA class action as moot due to a full-relief settlement offer made before a class certification motion was filed. The facts were as follows: Westlake is a California business entity head-quartered in Los Angeles. (R. 6, Am.Compl.¶ 6.) Scott is a resident… Read More
In Vargas v. Sai Monrovia B, Inc., --- Cal.Rptr.3d ----, 2013 WL 2419044 (Cal.App. 2 Dist. 2013), the same panel that decided Sanchez v. Valencia Holding Co., LLC (2011) 201 Cal.App.4th 74, re-examined the enforceability of the arbitration clause in the standard California car purchase contract and held that its prior decision was correct. The Court held that the clause… Read More
In Ambriz v. Patenaude and Felix, A.P.C., 2013 WL 2444648 (S.D.Cal. 2013), Judge Whelan allowed an FDCPA action to proceed against debt collection law firm who dismissed a state court collection claim without prejudice. Defendant argues that a state court collection complaint cannot form the basis for an FDCPA claim. Defendant cites Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct.… Read More
Sometimes, bad facts don’t make bad law. In Gannon v. Network Telephone Services, Inc., 2013 WL 2450199 (C.D.Cal. 2013), Judge Klausner refused to certify a TCPA text-message class action brought a sex-line operator. The facts were as follows: Defendant NTS is engaged in the business of telephone entertainment, in particular pay-per-call “phone sex” and “SexText.” NTS operates approxi-mately 45,000 telephone… Read More
In U.S. v. Cartman, 2013 WL 2445158 (N.D.Ga. 2013), Judge Carnes tried and convicted a Defendant notwithstanding his assertion that he is a “sovereign citizen”. Unfortunately, we know more about these Sovereigns that we’d like to, but sometimes one needs – for a Brief or for explanation – a citation for what this is all about. Judge Carnes’ explained it:… Read More
In Ferrini v. Cambece, 2013 WL 2421717 (E.D.Cal. 2013), Judge Drozd ordered FDCPA/Rosenthal Act claims to arbitration under a cardmember agreement. The undersigned finds that the debt collection practices at issue relate to the card member agreement, that the broad language of the arbitration provision found in that agreement provides that plaintiff's claims are subject to arbitration, and that there… Read More
In Bridging Communities, Inc. v. Top Flite Financial, Inc., 2013 WL 2417939 (E.D.Mich. 2013), the Court held that a TCPA Fax case could not be certified due to individual questions related whether the faxes were ‘unsolicited’ under the TCPA. Fatal to Plaintiff's Motion is the fact that the Court fails to find that common issues predominate over the individualized issues… Read More
In Roberts v. PayPal, Inc., 2013 WL 2384242 (N.D.Cal. 2013), Judge Hamilton granted summary judgment to a TCPA defendant who was sued for sending a text message to a Plaintiff who had provided the cell phone number to the defendant as part of using the defendant’s services. What is interesting about this case is that the Court decided not to… Read More
In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013), Judge Mola refused to reconsider his class certification of a TCPA class. Turning to a few of the matters raised at oral argument, Defendants complain that the TCPA class definition is problematic because it does not identify any parameters for determining when an individual is a “Florida… Read More
In O'Connor v. Diversified Consultants, Inc., 2013 WL 2319342 (E.D.Mo. 2013), Judge Sippel denied class certification in an FDCPA/TCPA case. Judge Sippel declined to certify an FDCPA ‘overshadowing’ class, finding that individual inquires predominated. However, a debt collector cannot use collection tactics that lead a debtor to believe he does not have any right to challenge the debt. Such a… Read More
In GMAC, Inc. v. Branham, 2013 WL 2298349 (Ohio App. 6 Dist. 2013), the Ohio Court of Appeal reversed a trial court’s conclusion that an automobile finance company had not established that it was the assignee of the vehicle lease (for collection purposes) because it did not produce its Dealer Agreement with the Dealer. In support of its first assignment… Read More
In Felix v. Northstar Location Services, LLC, --- F.R.D. ----, 2013 WL 2319326 (W.D.N.Y. 2013), Judge McCarthy rejected a settlement class under the FDCPA and Rosenthal Act arising from allegedly inadequate and deceptive voicemail messages left on debtors’ answering machines. The facts alleged were as follows: By Text Order dated June 15, 2011[24], I granted the parties' motions to consolidate… Read More
In Carlson v. Nevada Eye Care Professionals, 2013 WL 2319143 (D.Nev. 2013), Judge Jones denied a defendant’s Summary Judgment Motion brought on the basis that the Plaintiff had consented to receive the text messages sent by the Defendant. Plaintiff and class representative Mia Carlson, f.k.a. Mia Shaughnessy, received the following text massage on her cell phone on December 5, 2012: … Read More
In Standard Mut. Ins. Co. v. Lay, --- N.E.2d ----, 2013 IL 114617, 2013 WL 2253203 (Ill. 2013), the Illinois Supreme Court held that the $500 penalty available under the TCPA was not punitive and, accordingly, was not precluded from insurability. Also, Congress intended the $500 liquidated damages available under the TCPA to be, at least in part, an incentive… Read More
In Robbins v. Coca-Cola-Company, 2013 WL 2252646 (S.D.Cal. 2013), Judge Gonzalez found that the Plaintiffs stated a TCPA claim against Coke for SMS text messages sent promoting Coke products. “Whether Plaintiffs gave the required prior express consent is an affirmative defense to be raised and proved by a TCPA defendant, however, and is not an element of Plaintiffs' TCPA claim.”… Read More
