In Caw v. Portfolio Recovery Associates, LLC, 2013 WL 30567 (W.D.Mo. 2013), Judge Gaitan found no telephonic harassment for 35 calls in a year and 100 calls in 10 years. “A non-exhaustive list of prohibited conduct includes, “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at… Read More
In Travers v. Collecto, Inc., 2013 WL 65452 (D.Mass. 2013), Judge O'Toole found that a voicemail message left for the debtor at a phone number/residence with which he was no longer associated stated a claim under the FDCPA. EOS does not challenge that the automated messages where communications about a debt made to a third party. Rather, EOS asks this Court to… Read More
In Dabney v. Total Relocation Services, LLC, Not Reported in A.3d, 2013 WL 68727 (N.J.Super.A.D. 2013), the New Jersey appellate court found, in an unpublished decision, complete preemption of common defamation claims by FCRA. Having canvassed the vast array of judicial opinions dealing with FCRA preemption, we conclude that the straight forward total preemption approach of these courts of appeal is most… Read More
In Katzakian v. Collectibles Management Resources, 2013 WL 57712 (E.D.Cal. 2013), Judge O'Neill found that an FDCPA Plaintiff failed to state a claim for harassment under 1692d for continuing to collect after a dispute when the debt collector complied with post-dispute debt validation under 1692g. CMR summarizes that section 1692g(b) authorizes continued debt collection unless a consumer disputes in writing during the… Read More
In Mortimer v. Bank of America, N.A., 2013 WL 57856 (N.D.Cal. 2013), Judge Spero rejected a FCRA plaintiff's complaints about a creditor's reporting of his account through and after bankruptcy, but allowed leave to amend as to Plaintiff's CCRAA and UCL claims. Several courts, including two in this district involving closely analogous factual situations, have held that reports, after discharge, of delinquencies… Read More
[liveblog]Presentation on Indirect Auto Finance, Discretionary Pricing, by Richard Hackett, Installment and Liquidity Lending Markets - Consumer Financial Protection Bureau; John C. Redding, BuckleySandler . Read More
In Natalani v. Import Motors, Inc., 2013 WL 64611 (Cal.App. 1 Dist. 2013), the First District Court of Appeal found in an unpublished decision that the arbitration clause in a standard-form automobile RISC to be procedurally and substantively unconscionable, thus affirming the trial court's denial of the dealer's petition to arbitrate. Appellant contends that Concepcion broadly restricts the application of the… Read More
In Simonyan v. Ally Financial Inc., 2013 WL 45453 (C.D.Cal. 2013), Judge Walter required a Plaintiff -- one of a number of Plaintiffs who've sued multiple creditors in the Central District on bald factual FCRA allegations -- must plead more. In Iqbal, the Supreme Court held that “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements… Read More
In Kleiman v. Equable Ascent, 2013 WL 49754 (C.D.Cal. 2013), Judge Snyder allowed an FDCPA-telephonic harassment claim to proceed as adequately pleaded. Defendant's argument that plaintiff must allege the exact time debt collection phone calls occurred and the names of the individuals who made the calls appears to rest on the mistaken assumption that the heightened pleading standards of Federal Rule… Read More
In Robles v. Ally Bank, 2013 WL 28773 (S.D.Cal. 2013), Judge Battaglia found, in an FDCPA harassment case, that a cross-complaint for the debt was permissive and that there was supplemental jurisdiction to hear it. Judge Battaglia, however, declined to exercise that jurisdiction. Although the Ninth Circuit has not specifically addressed “whether a counterclaim for the underlying debt in an FDCPA… Read More
In LaRocque ex rel. Spang v. TRS Recovery Services, Inc. 2013 WL 30055 (D.Me. 2013), Judge Hornby declined to expand a state-wide class action into a federal one to protect the FDCPA defendant against multiple $500,000 penalties under the Act. The defendants' central premise is that the Maine-limited scope of Class One “circumvent[s] the statutory cap on damages set forth in the… Read More
In Saunders v. NCO Financial Systems, Inc., here, Judge Cogan held that when Plaintiff gave his cellular telephone number to incur the debt (for PACER services of all things), Plaintiff consented to be called on his cellular telephone under the TCPA and that such consent could not be revoked. Read More
In Mudgett v. Navy Federal Credit Union, 2012 WL 870758 (E.D.Wis. 2012), Judge Edelman held that manually placing a call from a telephone connected to an ATDS did not trigger the TCPA. Mudgett's second argument is based on language of the TCPA that defines “automatic telephone dialing system” as equipment that has the capacity to autodial. See 47 U.S.C. §… Read More
In Pfeifer v. Countrywide Home Loans et al., --- Cal.Rptr.3d ----, 2012 WL 6216039 (2012), the Court of Appeal for the First District found a trustee’s action in a non-judicial foreclosure to be exempt from the FDCPA, rejected arguments apparently advocated by the CFPB in other cases. Allen Pfeifer (Allen) and Florence A. Pfeifer (Florence), a son and his mother… Read More
In Gutierrez v. Wells Fargo Bank, NA --- F.3d ----, 2012 WL 6684748 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit rejected a post-trial petition to enforce arbitration, and found partial pre-emption of the UCL to the extent it conflicted with the business of banking in how a bank applies and computes overdraft fees. The Court of Appeals… Read More
On December 28, the Court of Appeals for the Ninth Circuit in Meyer v. Portfolio Recovery Services, 2012 WL 6720599 (9th Cir. 2012) denied rehearing of its previous opinion, but amended its opinion in the manner industry requested in its Amicus brief. (weblog post regarding decision: http://www.calautofinance.com/?p=3193); industry support for re-hearing: http://www.calautofinance.com/?p=3393)) Specifically, industry asked the Court of Appeals to… Read More
In Balthazor v. Central Credit Services, Inc., 2012 WL 6725872 (S.D.Fla. 2012), Judge Cohn denied certification of a TCPA class action, finding the issue of consent to be too individualized. The Court finds the reasoning of Hicks and Gene & Gene, LLC persuasive. Resolution of each putative class member's TCPA claim would necessarily involve an individual assessment of whether each… Read More
In Robinson v. Point One Toyota, Evanston --- N.E.2d ----, 2012 IL App (1st) 111889, 2012 WL 6725904 (Ill.App. 1 Dist. 2012), the Illinois Court of Appeal found that an automobile lease complied with Regulation M: [The Plaintiffs] maintain that, as a matter of law, their lease agreements violated the disclosure requirements of the CLR and Regulation M in that default… Read More
In Norton v. Ford of Santa Monica et al., 2012 WL 6721400 (Cal.App. 2 Dist. 2012), the Court of Appeal for the Second District, found in an unpublished decision that an automobile RISC's arbitration was procedurally and substantively unconscionable. As to procedural unconscionability, the Court of Appeal found: The vehicle purchase contract contains elements of surprise. Placement of the arbitration agreement… Read More
In Decohen v. Capital One, N.A. --- F.3d ----, 2012 WL 6685767 (4th Cir. 2012), the Fourth Circuit Court of Appeals found no NBA/OCC pre-emption of Maryland's debt cancellation agreement laws as related to an automobile RISC where the National Bank was an assignee as opposed to the original lender. But, the Court of Appeals went farther, too, find no… Read More
