Consumer Finance

In Fitzgerald v. Law Office of Curtis O. Barnes, 2013 WL 1627740 (E.D.Cal. 2013), Judge Austin rejected application of the Laffey Matrix or Consumer Law Attorney Fee Survey Report as a basis to compute a fee rate under the FDCPA. In support of the requested hourly rates for counsel, Plaintiff adduces the United States Consumer Law Attorney Fee Survey Report… Read More

In Devlin v. Law Offices of Howard Lee Schiff, P.C., 2013 WL 1459195 (D.Mass. 2013), Judge Dein ordered production of FDCPA manuals. The defendant shall produce any manuals concerning debt collection that it uses for general training purposes, as well any specific handouts or materials that it uses for purposes of compliance with the Fair Debt Collection Practices Act (“FDCPA”)… Read More

In Samuel v. CitiMortgage, Inc., 2013 WL 1501491 (N.D.Cal. 2013), Judge James found no private right of action against furnishers under the CCRAA. Generally, the CCRA allows private plaintiffs to bring an action for damages suffered as a result of violations of the Act. Cal. Civ.Code § 1785.31. However, section 1785.31 only extends to private plaintiffs bringing CCRA claims against… Read More

In Kilgore v. Keybank, Nat. Ass'n, --- F.3d ----, 2013 WL 1458876 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit, stepped back from the panel's ruling that Concepcion abrogates Cruz v. Pacificare Health Systems, Inc. (2003) 30 Cal.4th 303 and Broughton v. Cigna Healthplan of California (1999) 21 Cal.4th 1066, as well as Davis v. O'Melveny &… Read More

In Badeen v. Par, Inc., --- N.W.2d ----, 2013 WL 1489372 (Mich.App. 2013), the Michigan Court of Appeals found that auto finance lenders’ practice of hiring a single, general repossession contractor (a “forwarder”) who forwards assignments to local, licensed repossession agents did not trigger Michigan’s debt collection licensing statutes for the forwarder. Plaintiff George Badeen, a licensed collection agency manager,… Read More

In Trabert v. Consumer Portfolio Services, 2013 WL 1403084 (2013), Division 1 of the Fourth District Court of Appeal, in an unpublished decision, found the Arbitration Clause in a standard form RISC to be procedurally and substantively unconscionable, but remanded the matter to the trial court to determine whether those provisions could be severed. In sum, we have determined that… Read More

Ed.:  to my TCPA readers, this case has it all . . . In Jamison v. First Credit Services, Inc. --- F.R.D. ----, 2013 WL 1248306 (N.D.Ill. 2013), Judge Kendall denied a motion for class certification in TCPA case.  Plaintiff was a convicted felon. He pled guilty in 2008 to access device fraud. Specifically, he was part of a scheme to steal credit… Read More

In Vasquez v. Greene Motors, Inc., --- Cal.Rptr.3d ----, 2013 WL 1232343 (Cal.App. 1 Dist., 2013), the Court of Appeal found the arbitration clause in the standard form automobile RISC to be procedurally and substantively unconscionable. After plaintiff Gustavo E. Vasquez purchased a used car on credit from defendant Greene Motors, Inc. (Greene), the vehicle's financing was assigned to defendant… Read More

In O'Bryne v. Portfolio Recovery Associates LLC, 2013 WL 1223590 (S.D.Cal. 2013), Judge Gonzales found that a debt collector’s lawsuit alleging claims for account stated and for common counts did not misstate the debt in violation of the Rosenthal Act and FDCPA.   Plaintiff moved for summary judgment as to its first cause of action for violation of the FDCPA on… Read More

In Knutson v. Schwan's Home Service, Inc., 2013 WL 1222116 (S.D.Cal. 2013), Judge Bartick ordered class-wide discovery on ‘prior express consent’ under the TCPA. Plaintiffs have requested information relating to Defendant's affirmative defense of “prior express consent.” Plaintiffs predict Defendant will assert this defense in opposition to class certification. Plaintiffs argue they will need the information to prepare a response… Read More

In Coppock v. Citigroup, Inc., 2013 WL 1192632 (W.D.Wash. 2013), Judge Coughenour granted a Petition to Compel Arbitration in a TCPA/FDCPA class action. The arbitration agreement clearly covers the TCPA and FDCPA claims. Citi made the calls to collect a debt it thought Coppock owed on her credit card account. Her claims based on those calls are thus “[c]laims relating… Read More

In Atchison v. Hiway Federal Credit Union, 2013 WL 1175020 (D.Minn. 2013), Judge Frank found that a creditor’s charging-off of an account and issuing a 1099-C did not by itself discharge the debt, but further discovery should be allowed before summary judgment could be granted as to whether the creditor intended for the issuance to discharge the debt. In addition,… Read More

We previously reported on the Thrasher-Lyon v. CCS Commercial LLC case, and its interlocutory appeal to the Court of Appeals for the 7th Circuit. Appellants have filed their opening brief here. Read More

In Ramirez v. Balboa Thrift & Loan, 2013 WL 1151496 (Cal.App. 4 Dist. 2013), the California Court of Appeal for the 4th District reversed in an unpublished decision a trial court’s denial of class certification in an NOI case, finding that the trial court erred in finding that a creditor ought to be able to litigate individual issues of fraud… Read More

In El v. AmeriCredit Financial Services, Inc., --- F.3d ----, 2013 WL 1150210 (7th Cir. 2013), Judge Posner writing for the Court of Appeals for the 7th Circuit reversed the District Court’s dealing with a plaintiff who purportedly was a member of the Sovereign Citizens movement. The plaintiff bought a used pickup truck in 2011 for $28,000 and financed the… Read More

In Davis v. Hollins Law, 2013 WL 1091221 (E.D.Cal. 2013), Judge Karlton (again) found that that the “attorney” exemption from the definition of “debt collector” under the Rosenthal Act does not extend to “law firms.”  Judge Karlton also found Defendants’ anti-SLAPP motion wanting because the phone calls left were not meaningfully in anticipation of litigation. Defendant argues that it left… Read More

In Nelson v. Santander Consumer USA, Inc., --- F.Supp.2d ----, 2013 WL 1141009 (W.D.Wis. 2013), Judge Snyder found that ‘preview dialing’ triggered the TCPA.  The facts were as follows: Beginning in March or April 2010 defendant Santander Consumer USA, Inc., an automobile finance company, began making calls to 608–512–xxxx in an attempt to collect the debt from those loans. At… Read More

The CFPB's Annual Report on the FDCPA is here and the compliance bulletin titled “Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act,” which provides guidance regarding their concerns with fair lending and dealer participation under the disparate impact theory, is here. Read More

Judge Karlton's precedent-setting and liability imposing decisions under the FDCPA are numerous.  (See., e.g, Newman v. Checkrite California, Inc., 912 F.Supp. 1354, E.D.Cal. 1995)(debt collector vicariously liable for debt collection activities of attorney; no FDCPA defense that collector was following the orders of the superiors; litigation privilege does not apply to FDCPA); Newman v. Checkrite California, Inc., 1994 WL 896637… Read More

In Hardison v. Kia Motors America, Inc., --- S.E.2d ----, 2013 WL 1110674 (N.C.App. 2013), the Court of Appeals reversed the trial court’s order of attorneys’ fees in a lemon law case where the manufacturer had done the right thing once it learned of the lemon law claim.  Defendant also contends the trial court erred in awarding plaintiffs attorney's fees… Read More