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
We started this weblog with our first post exactly 5 years ago today. In the interim, we have welcomed hundreds of subscribers from the automobile finance, debt collection, and banking industry, with more industry friends joining each week. We have summarized close to 900 decisions in the last 5 years. We intend to proudly continue this tradition of keeping our industry friends… Read More
Here is the FCC’s ruling regarding agency liability under the TCPA. The FCC declared that sellers “may be held vicariously liable under federal common law principles of agency including not only formal agency, but also principles of apparent authority and ratification” – opining that vicarious liability would incentivize companies to police TCPA compliance by third party vendors and telemarketers. The FCC… Read More
In Blair v. CBE Group Inc., 2013 WL 2029155 (S.D.Cal. 2013), Judge Anello rejected a debt collector’s home-run FRCP 12(b)(6) motion to dismiss a TCPA class action at the pleadings stage. First, Judge Anello found that debt collectors such as CBE Group might be subject to the TCPA, and Plaintiff’s Complaint had pleaded enough. Relying on extensive legislative history and… Read More
In Bengal Motor Co., Ltd. v. Cuello, --- So.3d ----, 2013 WL 1980147 (Fla.App. 3 Dist. 2013), the Florida Court of Appeal found that a car dealer violated TILA by having the customer sign a RISC, but also 2 other documents stating that consummation was conditioned on the dealer securing financing. The facts were as follows: Cuello sought to buy… Read More
In Muller v. Auto Mission, Ltd., 2013 WL 1996916 (N.D.Cal. 2013), Magistrate Judge Cousins remanded a removed state court action that alleged a host of Rees-Levering Automobile Sales & Finance Act violations, many of which included embedded federal claims. Judge Cousins found an absence of substantial federal question, and rejected the defendants’ contention that a defense of compliance with federal… Read More
In In re Penrod, 2013 WL 1962338 (N.D.Cal. 2013), Judge Gonzalez-Rogers held that the debtor was not entitled to her attorneys’ fees incurred in this protracted litigation because recovery of fees derived purely from state law, which, the bankruptcy court had determined did not afford a right to attorneys’ fees. Penrod’s tortured procedural history was summarized as follows: Ultimately the bankruptcy… Read More
In Meyer v. Receivables Performance Management, LLC, 2013 WL 1914392 (W.D.Wash. 2013), Judge Jones summarily disposed of a debt collector’s efforts to dismiss a TCPA class action at the pleadings stage. From February 2012 to April 2012, Ms. Meyer received many calls on her cellular phone from RPM. RPM is a debt collector. When Ms. Meyer did not answer, RPM… Read More
This one's got it all, TCPA fans. In Mais v. Gulf Coast Collection Bureau, Inc., --- F.Supp.2d ----, 2013 WL 1899616 (S.D.Fla. 2013), Judge Scola decided not to follow any of the FCC regulations on the TCPA that otherwise apparently would have barred Plaintiff’s TCPA claims. The facts were as follows: In 2009, Plaintiff Mark Mais went to the… Read More
In Genaw v. NCO Financial Systems, Inc., 2013 WL 1876792 (N.D.Tex. 2013), Judge Robinson found that a TCPA Plaintiff who received debt collection calls did not trigger the do-not-call registry or its requirement that a caller provide copies of its DNC procedures upon demand. Judge Robinson also confirmed that the Truth-in-Caller-ID Act permitted a debt collection caller to block its… Read More
In Gorman v. JP Morgan Chase Bank, 2013 WL 1882303 (S.D.Cal. 2013), Judge Anello addressed a Plaintiff’s FDCPA claims against his automobile finance company and the repossession company it hired. Judge Anello found that JP Morgan-Chase was not a debt collector because, as an auto finance company, it was the original creditor. Defendant JP Morgan argues that the FDCPA does… Read More
It was largely a run-of-the-mill letter case, regarding whether the Defendant complied with Camacho’s validation notice requirements (it didn’t). But, Judge Koh took time from her busy schedule in the Apple v. Samsung mega-trial to find that California’s elder-abuse statute allowed trebling of a statutory penalty under the Rosenthal Act. (Johnson v. CFS II, Inc., 2013 WL 1809081 (N.D.Cal. 2013)… Read More
In Basich v. Patenaude & Felix, APC, 2013 WL 1755484 (N.D.Cal. 2013), Judge Davila explained – and limited – the “continuing violation” exception to the FDCPA’s and Rosenthal Act’s statute of limitations, found no harassing conduct for merely calling a debtor after they said to stop, and refused to apply vicarious liability against a Creditor under the Rosenthal Act. In… Read More
In Neu v. Genpact Services, LLC, 2013 WL 1773822 (S.D.Cal. 2013) granted in part and denied in part a debt collector’s summary judgment motion brought against a debtor’s FDCPA harassment claim. The facts were as follows. Genpact is a debt collector as defined by the Fair Debt Collections Practices Act (“FDCPA”) and California Rosenthal Fair Debt Collection Practices Act (“Rosenthal… Read More
In Gragg v. Orange Cab Co., Inc., --- F.Supp.2d ----, 2013 WL 1788479 (W.D.Wash. 2013), Judge Lasnik found that a TCPA Plaintiff, on his second time around, pleaded enough facts to demonstrate use of an ATDS with sufficiency to state a claim under the TCPA in a text message case. Contrary to plaintiff's arguments about the pleading standard for alleging… Read More
In Moriarity v. Henriques, 2013 WL 1704937 (E.D.Cal. 2013), Judge Thurston explained the Rooker-Feldman doctrine as applicable in the FDCPA context, finding that it prohibited her from using the FDPCA to review ‘representations’ that the Debtor was properly served in the state court collection action in order to obtain a default judgment. FIA Card Services, N.A. retained the law firm… Read More
In Emanuel v. Los Angeles Lakers, Inc., 2013 WL 1719035 (C.D.Cal. 2013), Judge Wu found that the Plaintiff consented to receive confirmatory text messages from the Los Angeles Lakers by providing his cellular telephone number to the Lakers in an attempt to get his text message on the Jumbo-tron. The facts were as follows: The First Amended Complaint (“FAC”) alleges that… Read More
In Newman v. GM Financial, Judge Sabraw issued an Order Denying Preliminary Approval rejecting a proposed TCPA class settlement in part on the basis that disparately situated classmembers with different damages claims would obtain the same settlement sums under the class settlement and, due to the claims-made procedure, it was unclear what that sum would be anyway. A class action settlement may be… Read More
In Bliese v. Credit Bureau of Ukiah, Inc., 2013 WL 1694952 (N.D.Cal. 2013), Judge Illston granted summary judgment to a debt collector against a claim that the debt collector falsely threatened to file suit against the debtor. Plaintiff's first claim is for “threatening to file a lawsuit against Plaintiff even though Defendant did not intend to do so,” in violation… Read More
In Friedman v. Torchmark Corp., 2013 WL 1629084 (S.D.Cal. 2013), Judge Gonzalez found auto-dialed calls to a consumer about a “recruiting webinar” “wherein Plaintiff could learn about [Defendant's] products and services in order to sell said products and services to other Americans who are in need of health or other similar insurance policies” was not a prohibited ‘unsolicited advertisement’ under… Read More
