Consumer Finance

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

In Crockett v. Rash Curtis & Associates, --- F.Supp.2d ----, 2013 WL 1010492 (N.D.Cal. 2013), Judge Alsup found that continuing to call after being put on notice from the answering machine message that it was the wrong person could constitute intent to harass. Similarly here, it is reasonable to infer that Rash Curtis very likely received notice from the contents… Read More

In Kayan v. Asset Acceptance, LLC, 2013 WL 1010554 (C.D.Cal. 2013), Judge Bernal found no failure to validate under the FDCPA when the Plaintiff failed to dispute the claim within the statutory 30-days. The uncontroverted evidence is that Palisades sent Plaintiff an initial demand letter on April 8, 2010. (Braun Decl., ¶ 5). Palisades did not receive any response to… Read More

In Breidenbach v. Experian, 2013 WL 1010565 (S.D.Cal. 2013), Judge Curiel found that an otherwise exempt creditor cannot be brought under the FDCPA by a theory of vicarious liability. AES argues Plaintiff's FDCPA claim against AES fails because AES is not a “debt collector” under the FDCPA and because AES cannot be held vicariously liable for the acts of WWR,… Read More

In Iyigun v. Cavalry Portfolio Services, LLC, 2013 WL 950947 (C.D.Cal. 2013), Judge Fitzgerald found that Plaintiff stated no FCRA claim because her claim that she did not owe the money did not demonstrate an inaccuracy in her report. First, Iyigun's claims for violations of the Fair Credit Reporting Act (“FCRA”) and the California Consumer Credit Reporting Agencies Act (“CCRAA”)… Read More

In Nigro v. Mercantile Adjustment Bureau, LLC, 2013 WL 951497 (W.D.N.Y. 2013), Judge Skretny granted summary judgment to a debt collector on Plaintiff’s FDCPA and TCPA claims. As to the FDCPA claim, Judge Skretny found no actionable telephonic harassment. Defendant correctly asserts that, under the circumstances of this case, the 72 phone calls in a nine-month period are insufficient as… Read More

In Boyd v. General Revenue Corp., 2013 WL 866944 (M.D.Tenn. 2013), Judge Haynes held that the TCPA does not regulate manually dialed calls to cellular telephones. Plaintiff's TCPA claims are that: (1) Defendants willfully and knowingly violated the TCPA by placing forty-two (42) telephone calls using an auto-dialer to Plaintiff's cellular telephone, as Plaintiff is registered with the Federal Do… Read More

In Mercer v. Tumbleson Automotive Group, 2013 IL App (3d) 120400-U, 2013 WL 827716 (Ill.App. 3 Dist. 2013), Judge O’Brien found that a Holder of an automobile RISC was not subject to the Holder Rule for the misconduct of a seller. The facts were as follows: In May 2009, plaintiff Terry Mercer executed a retail installment contract with Taylor &… Read More

In Shea v. BBVA Compass Bancshares, Inc., 2013 WL 869526 (S.D.Fla. 2013), Judge Moore ordered a TCPA text-message class action to arbitration, finding that the TCPA claim was within the scope of the arbitration clause and the arbitration clause survived the termination of the contractual relationship between the parties.   Here, this Court finds clear and unmistakable evidence of the… Read More

In Vartanian v. Portfolio Recovery Associates, LLC, 2013 WL 877863 (C.D.Cal. 2013), Judge Otis Wright III addressed a litany of FCRA and FDCPA claims brought by the Kaas Law Group.  Judge Wright held that a FCRA Plaintiff need not plead that its dispute to the CRA was not frivilous; i.e. non-frivilousness is not an element of a FCRA claim. Contrary… Read More

The West Virginia Supreme Court of Appeals in Vanderbilt Mortg. and Finance, Inc. v. Cole, --- S.E.2d ----, 2013 WL 870442 (W.Va. 2013), recently synced the West Virginia state-law version of the FDCPA with the federal FDCPA in finding that the state-law FDCPA did not require proof of actual damages in order to obtain a statutory penalty.  The Supreme Court… Read More

In McDonald v. OneWest Bank, FSB, 2013 WL 858197 (W.D.Wash. 2013), Judge Lasnik found a triable issue of fact as to a furnisher’s reinvestigation under FCRA, finding that the furnisher can not rely solely on the information provided to it by the CRA when the furnisher has other information available to it to investigate. Plaintiff bears the burden of showing… Read More

In Grossman v. Capital One Bank, 2013 WL 821167 (Cal.App. 4 Dist. 2013), the California Court of Appeal in an unpublished decision found that a credit card debtor did not have a claim against the credit card company for allowing the ex-wife to continue to charge sums on the Account after the divorce decree.  The facts were not atypical of… Read More

In Lobel Financial v. Baltazar, 2013 WL 821205 (2013), the Court of Appeal in an unpublished decision enforced a First Payment Default/Recourse provision in a Dealer Agreement that allowed an auto finance company to demand repurchase of a contract from the assigning car dealer.  The facts were as follows. Affordable Auto sells used cars, and in turn it sells its… Read More

In Thomas v. Nelson Watson & Associates, LLC, 2013 WL 781964 (C.D.Cal. 2013), Judge Marshall found that debt collection was a permissible purpose to pull a credit report under FCRA. 15 U.S.C. § 1681b limits the circumstances under which a credit reporting agency may furnish credit reports to an enumerated set of “permissible purposes.” If those purposes are exceeded, then… Read More

In Wells v. Deca Financial Services, LLC, 2013 WL 772870 (S.D.Ind. 2013), Judge Magnus-Stinson found that 15 USC § 1692e(8) imposes no duty upon debt collectors to advise credit reporting agencies that a debt is disputed when it is disputed after it is reported. Deca argues that “when a debt collector has made a report to a credit agency and… Read More

In Heathman v. Portfolio Recovery Associates, LLC, 2013 WL 755674 (S.D.Cal. 2013), Judge Gonzalez granted summary judgment on an FDCPA claim filed against a debt collector who had sued the wrong person in a state-court debt collection lawsuit. Judge Gonzalez rejected the contention that the creditor could not be held liable, vicariously or otherwise.  Judge Gonzalez held that clients could… Read More

In Cayanan v. Citi Holdings, Inc., 2013 WL 784662 (S.D.Cal. 2013), Judge Anello ordered TCPA class actions to arbitration finding that the Arbitration clause in loan agreements were not both procedurally and substantively unconscionable and that the TCPA claims fell within the language of the arbitration agreements. Plaintiffs Elsie Cayanan, Kimberly Baker, and Jesse McKay filed a putative class action… Read More

In Gardner v. Ally Financial Inc., --- A.3d ----, 2013 WL 765013 (Md. 2013), the Maryland Court of Appeals held that a $1,000 admission fee transformed a ‘public’ sale into a ‘private’ sale – the latter of which required more detailed post-repossession disclosures and accounting than were provided to the consumer. The issue before us is limited to the $1,000… Read More

In Caprio v. Healthcare Revenue Recovery Group, LLC, --- F.3d ----, 2013 WL 765169 (3d Cir. 2013), the Court of Appeals for the Third Circuit held that a debt collector’s inclusion of the language “please call us toll free at 800–984–9115 or write us at the above address if you feel you do not owe this amount” in its 30-day… Read More