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
In Stevenson v. American Honda Finance Corp., 2012 WL 6672848 (D.N.J. 2012), Judge Pisano found no liability for an automobile finance company's acceptance of a RISC that contained a miscalculated "Credit Inquiry Fee". In May 2011, Plaintiff entered into a retail installment sales contract (the “RISC”) with non-party Honda Universe for the financed purchase of a 2009 Honda Civic. The RISC, which… Read More
In Mann v. Wells Fargo Bank, 2012 WL 3727369 (N.D.Cal. 2012), Judge Ryu found defamations completely preempted by FCRA. The facts, arising out of a mortgage loan, were as follows: In July 2005, Plaintiffs obtained first and second home mortgages in the amounts of $484,000 and $121,000, respectively, on their home and real property located in El Dorado Hills. (Compl.¶ 11.) Wells… Read More
In Johansen v. Vivant, Inc., 2012 WL 6590551 (N.D.Ill. 2012), Judge Aspen found that Iqbal/Twombly require a TCPA plaintiff to plead at least something more under the TCPA than that an ATDS was used. The cases fall within three general categories. The first set of cases hold that reciting the statutory definition of an ATDS in the complaint suffices and that the validity… Read More
In Hockenhull v. Law Office Howard Lee Schiff, P.C. 2012 WL 6525504 (D.R.I. 2012), Judge Smith rejected a debt collector's contention that he could ignore a Notice of Representation simply because the attorney is issued the NoR was not admitted to practice in Rhode Island. Judge Smith explained: In response to Count I, that Defendants violated 15 U.S.C. § 1692c(a)(2) by… Read More
In Harris v. Liberty Community Management, Inc. --- F.3d ----, 2012 WL 6604518 (11th Cir 2012), the Court of Appeals for the Eleventh Circuit found that a homeowners' association's management company was exempt from the FDCPA, so long as its collection of association dues was not central to its fiduciary obligations to the HOA. The Fair Debt Collection Practices Act (… Read More
In Longman v. Wachovia Bank, N.A. --- F.3d ----, 2012 WL 6604538 (2d Cir. 2012), the Court of Appeals for the Second Circuit followed Nelson to find no private right of action under 15 USC 1681s-2(a). Although we have not previously addressed whether the Fair Credit Reporting Act provides a private cause of action for violations of § 1681s–2(a), the statute plainly restricts… Read More
In Giovanni v. Bank of America, Nat. Ass'n 2012 WL 6599681 (N.D.Cal. 2012), Judge Beeler found that a FCRA Plaintiff failed to plead an inaccuracy in its reporting of a consumer's account that went through bankruptcy. The facts were as follows: Plaintiff, Katheryn Giovanni currently resides in Chatham County, Georgia, but lived in California during the relevant times in the complaint.… Read More
In Cerrato v. Solomon & Solomon --- F.Supp.2d ----, 2012 WL 6621339 (D.Conn. 2012), Judge Hall found that a debt collector violated a consumer's cease-and-desist by making 8 attempts to call the customer after the cease-and-desist, even though the customer never answered any of those calls. The Court analogized to Foti's holding that voicemail messages were 'communications' under the FDCPA, and found,… Read More
In Mortimer v. Bank of America, N.A. 2012 WL 6218004 (N.D.Cal. 2012), Judge Spero addressed the interplay between bankrupt debt and credit reporting, finding that Plaintiff stated no FCRA or CCRAA claim. The facts were as follows: Plaintiff Mark Mortimer (“Plaintiff”) brings this action against Defendant Bank of America, N.A., (“Defendant”) FN1 seeking redress for Defendant's alleged inaccurate reporting of his… Read More
In Sacco v. Bank of America, N.A., 2012 WL 6566681 (W.D.N.C. 2012), Judge Voorhees conducted a lengthy examination of NBA/OCC/Dodd-Frank Pre-emption and whether those laws pre-empted the state fair debt collection laws. Judge Voorhees concluded that there was no pre-emption. The facts were as follows: Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that De-fendant Bank of America,… Read More
In Mkhitaryan v. U.S. Bancorp, 2012 WL 6204840 (D.Nev. 2012), Judge Mahan refused to grant a Plaintiff’s summary judgment motion based on the claim that a repossession agent violated the FDCPA and ‘breached the peace’ during the course of a repossession. As to the FDCPA, Judge Mahan found it inapplicable. The purpose of the FDCPA includes, among other things,… Read More
In Stone v. Advance America, 278 F.R.D. 562 (S.D.Cal. 2012), Judge Battaglia refused to certify a class of payday loan customers who claimed that the defendant violated the California Deferred Deposit Transaction Law (“CDDTL”) Cal. Fin.Code § 23005 in its dealing with Spanish-speaking customers. Judge Battaglia found that whether the customers primarily spoke Spanish in their respective transactions lead to… Read More
In Vinson v. Credit Control Services, Inc.--- F.Supp.2d ----, 2012 WL 6137916 (D.Mass. 2012), Judge Tauro held that a debt collector did not violate the FDCPA’s time/place/manner restrictions by calling within the proper time zone even though the customer’s municipality applied a different time zone. Vinson claims that Credit Control Services violated the statute by calling her after 9:00 p.m.,… Read More
In Manukyan v. Cach, LLC, 2012 WL 6199938 (C.D.Cal. 2012), Judge Klausner granted defendant’s Motion(s) to Dismiss as well as finding that Plaintiff could state facts sufficient to obtain leave to amend. The Court noted that this action is among many similar fair-debt collection and credit-report lawsuits filed by Plaintiff's law firm, Kaass Law, in the Central District. On September… Read More
The California Department of Corporations proposed new Finance Lender Law regulations. Attached are copies of the CDC Notice of Rulemaking Action re CFLL Regulation, CDC Statement of Reason re CFLL Regulation, and CDC Text of Proposed CFLL Regulations. Licensees have an opportunity to provide comments which are due no later than 5 PM, January 28, 2013. A request for a hearing may also be made in writing… Read More
In U.S. v. Warner, 2012 WL 6087193 (N.D.Cal. 2012), Judge Beeler ordered the Government to produce FDCPA compliance information with regard to its efforts to collect on student loans from an in-pro-per attorney. So, are his discovery requests relevant to them? Yes. As noted above, Mr. Warner essentially seeks all communications between him and the Department (and its agents) and… Read More
In Fleischmann v. Care Credit, 2012 WL 6082893 (C.D.Cal. 2012), Judge Pregerson found parts of California’s Song-Beverly Credit Card Act pre-empted by FCRA. Plaintiff financed her refractive surgery, and ended up with a dispute over whether she’d paid it in full or not. She alleged a host of claims, one of which was under the Song-Beverly Credit Card Act. Judge… Read More
In Teltech Systems, Inc. v. Bryant, --- F.3d ----, 2012 WL 6097949 (5th Cir. 2012), the Court of Appeals for the 5th Circuit held that the Truth-in-Caller ID Act pre-empted state-law ‘anti-spoofing’ legislation. “Spoofing” is misrepresenting the originating telephone caller's identification (caller ID) to the call recipient. The practice has both improper and legitimate applications. In early 2010, Mississippi enacted… Read More
In Morse v. USAA Federal Sav. Bank, 2012 WL 6020090 (D.Nev. 2012), Judge Dawson addressed a common credit reporting issue arising out of a dispute between former spouses over a credit card account. The Plaintiff, the ex-wife, was an authorized user of a USAA Federal Savings Bank credit card initially issued to her former husband. Morse was divorced on March… Read More
