Consumer Finance

In Modica v. American Suzuki Financial Services Co., 2013 WL 656495 (D.Ariz. 2013), Judge Campbell appeared to hold that a consumer need not prove inaccuracy in order to state a FCRA re-investigation claim, as the accuracy question goes only to the question of damages. On December 8, 2005, Plaintiff and her daughter Jacklyn Modica executed an agreement for a lease… Read More

In Alonso v. Blackstone Financial Group LLC, 2013 WL 687073 (E.D.Cal. 2013), Judge Boone allowed a claim to proceed against an owner of a debt collection agency in disregard of the corporate fiction, following Cruz v. International Collection Corp., 673 F.3d 991 (9th Cir.2012), and explaining: Plaintiff argues that Elsen is a proper defendant since he was the sole owner… Read More

In Kristensen v. Credit Payment Services Inc., 2013 WL 686492 (D.Nev. 2013), Judge Dawson found that Plaintiff’s bald recitation of the elements of a text-message TCPA claim was sufficient to survive an FRCP 12(b)(6) Motion. Plaintiff's complaint alleges that Defendant Credit Payment Services Inc. (“Defendant”), directly or through its agents, caused or directed unsolicited SMS text messages to be sent… Read More

GroupMe and the Cargo Airline Association have filed Petitions to the FCC, asking the FCC to re-visit its definition of autodialer and whether consent can be given by someone other than the called party.  See the GroupMe Notice of Req for Comment by FCC, US Chamber of Commerce's Comments to the Petition, and a Notice of Ex Parte Meeting with FCC filed by… Read More

In Gomez v. Campbell-Ewald Co., 2013 WL 655237 (C.D.Cal. 2013), Judge Gee found that a claim against a contractor that sent text messages to cellular telephone as part of the US Navy’s marketing campaign fell within the TCPA’s 4-year federal catch-all statute of limitations. In its motion for judgment on the pleadings, Defendant contends that Plaintiff's claim is time-barred by… Read More

In Swope v. Credit Management, LP, 2013 WL 607830 (E.D.Mo. 2013), Judge Perry followed Soppett, holding that an unanticipated receiver of autodialed calls to a cellular telephone had standing to pursue a TCPA claim.  The facts were as follows: According to the complaint, defendant obtained an account receivable by Charter Communications and began making phone calls to collect the debt.… Read More

In Esquivel v. Bank of America, N.A., 2013 WL 682925 (E.D.Cal. 2013), Judge Burrell found that a company that obtained defaulted debt through merger and acquisition rather than by debt purchase did not ‘obtain’ the debt while the debt was in default for purposes of triggering the FDCPA. The FDCPA explicitly states certain persons are not considered “debt collectors” including:… Read More

In Marx v. General Revenue Corp. --- S.Ct. ----, 2013 WL 673254 (2013), Justice Thomas wrote for the Court, holding that Section § 1692k(a)(3) is not contrary to, and, thus, does not displace a district court's discretion to award costs under, Rule 54(d)(1). Read More

The California Court of Appeal in People v. JTH Tax, Inc. held that vicarious liability could be imposed under the UCL. However, in  Herron v. Best Buy Co. Inc., 2013 WL 595474 (E.D.Cal. 2013), Judge Burrell found that a UCL claim could not be stated against a computer manufacturer for the misrepresentations of the seller.  Toshiba seeks dismissal of all… Read More

In Flint v. Beneficial Financial I Inc., 2013 WL 552622 (E.D.Cal. 2013), Judge Burrell declined to award reverse-attorneys’ fees under the FDCPA without more than conclusory statements of bad faith. Further, Defendant has not shown that sanctions should be awarded under 15 U.S.C. § 1692k(a)(3), which requires “a finding by the court that [Plaintiff's FDCPA claim] was brought in bad… Read More

In Lafferty v. Wells Fargo Bank, --- Cal.Rptr.3d ----, 2013 WL 412900 (2013), the Court of Appeal found that the FTC Holder Rule was not defensive in nature only, and that a consumer can assert affirmative ‘claims and defenses’ against the Holder, as the FTC’s May 3, 2012 Advisory Opinion also held. The Holder Rule unambiguously allows the buyer to… Read More

In Wellington Homes, Inc. v. West Dundee China Palace Restaurant, Inc., --- N.E.2d ----, 2013 IL App (2d) 120740, 2013 WL 414236 (Ill.App. 2 Dist. 2013), the Illinois Court of Appeal found that the 4-year federal catch-all statute of limitations applies to TCPA actions, not shorter state-court statutes of limitations.  This interlocutory appeal pursuant to Illinois Supreme Court Rule 308… Read More

In Truong v. Mountain Peaks Financial Services, Inc., 2013 WL 485763 (S.D.Cal. 2013), the District Court rejected application of the Rooker-Feldman doctrine and Noerr-Pennington doctrine to bar an FDCPA claim. Rooker–Feldman “is a narrow doctrine, confined to ‘cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court… Read More

In Schaefer v. First Source Advantage, LLC, 2013 WL 509001 (E.D.Mo. 2013), Judge Shaw found that a TCPA Plaintiff who re-opened his bankruptcy to list the asset gained standing to pursue it, but was estopped from bringing it.  If a debtor fails to list an asset in his bankruptcy schedules, that asset is not automatically abandoned back to the debtor… Read More

In Arutyunyan v. Cavalry Portfolio Services, 2013 WL 500452 (C.D.Cal. 2013), Judge Gutierrez found that Plaintiff’s counsel’s pleadings did not arise to the level of misconduct that would allow an award of reverse attorneys’ fees under FCRA and the FDCPA, but did under other federal law. Under FCRA, the Court explained: As a threshold matter, § 1681n(c) imposes attorneys' fees… Read More

In Lee v. Stonebridge Life Ins. Co., --- F.Supp.2d ----, 2013 WL 542854 (N.D.Cal. 2013), Judge Seeborg certified a TCPA-text message class based on the following facts. In this putative class action, plaintiff alleges that defendants violated the Telephone Consumer Protection Act, 42 U.S.C. §§ 227 et seq. (“TCPA”), by sending unsolicited text messages to consumers' cell phones. Plaintiff seeks… Read More

In Natalini v. Import Motors, Inc. (2013) 2013 DAR 1673, the Court of Appeal followed the reasoning similar to Sanchez v. Valencia Holding Co., holding that the arbitration clause in the standard Law Printing car contract is unconscionable and unenforceable due to the $100,000 and injunction triggers to three arbitrator review and the reservation of self-help remedies including repossession. Read More

In Alvarado v. Miller-DM, Inc., 2013 WL 205927 (2013), the California Court of Appeal found, in an unpublished case, that the defendant waived its right to arbitrate the class claims under a standard form automobile RISC.  In the pre-Concepcion petition to compel arbitration, the Defendant had excluded from its petition plaintiff's injunctive relief cause of action; declaratory relief claim; and… Read More

In People v. JTH Tax, Inc., --- Cal.Rptr.3d ----, 2013 WL 177140 (Cal.App. 1 Dist.), the Court of Appeal for the First District disagreed with a seemingly well-settled, decades-old rule that the doctrine of vicarious liability did not apply to California’s Unfair Competition Law.  The facts were as follows: Defendant JTH Tax, Inc., doing business as Liberty Tax Service (Liberty),… Read More

In Becker v. Wells Fargo Bank, N.A., Inc., 2013 WL 268935 (E.D.Cal. 2013), Judge Delaney held: A loan servicer is not encompassed within the statutory definition of debt collector. See Nool v. HomeQ Servicing, 653 F.Supp.2d 1047, 1053 (E.D.Cal.2009) ( Rosenthal Act mirrors federal statute and excludes loan servicers). Read More