Consumer Finance

In In re Culpepper, --- B.R. ----, 2012 WL 5395935 (Bkrtcy.D.Or. 2012), Judge Dunn denied a Bank’s MSJ as to an alleged discharge violation arising out of efforts to collect discharged debts surrounding a promissory note related to a deed of trust on Ms. Culpepper's residence property.  You know how it might turn out when Judge Dunn began his opinion… Read More

In Agne v. Papa John's Intern., Inc., --- F.R.D. ----, 2012 WL 5473719 (W.D.Wash. 2012), Judge Coughenour certified a TCPA class action against PapaJohn’s pizza for advertising text messages send to thousands of consumers. Plaintiff alleges that Defendants violated state and federal law when they sent her and thousands of others unsolicited text messages advertising Papa John's pizza products.  Papa… Read More

In Pyle v. First Nat. Collection Bureau, 2012 WL 5464357 (E.D.Cal. 2012), Judge Oberto dismissed a FCRA claim asserting that a debt collector did not have a permissible purpose to pull a credit report for purposes of debt collection. Plaintiff asserts that a consumer report cannot be obtained for the purposes of collecting a debt on a credit card account,… Read More

In Noel v. Bank of America,  2012 WL 5464608 (N.D.Cal. 2012), Judge Conti dismissed a consumer’s FDCPA and FCRA claims against a Bank.  The facts were as follows: Plaintiff alleges that she paid off any debt she may once have owed to BOA. Compl. ¶ 13. She alleges that, in 2009, she sought assistance from counsel to address BOA's allegedly… Read More

In Dobbin v. Wells Fargo Auto Finance, Inc., 2011 WL 2446566 (N.D.Ill. 2011), Judge Kennelly held that the availability, but not use, of an autodialer was fatal to Plaintiff's TCPA claim. Plaintiffs concede, however, that Wells Fargo's agents' desk phones can also be used independently of its predictive dialing technology—that is, while a call center agent is not logged into the universal… Read More

In Guajardo v. GC Services, LP, 2012 WL 5419505 (5th Cir. 2012), the Court of Appeals for the Fifth Circuit reversed a $120,000 FDCPA jury verdict, and issued a remittur in the amount of $4,500.  Plaintiff had testified that she was not claiming compensation for time off of work, out-of-pocket expenses, or mental anguish. The district court denied GC's motion. … Read More

In Dunning v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 5463294 (S.D.Fla. 2012), Judge Demitrouleas denied summary judgment in an FDCPA call-volume case, not because of the volume of the calls but because of a factual question regarding whether they were received and, if so, their content. The Court finds the parties' dispute about the accuracy of Plaintiff's… Read More

In Ford Motor Credit Co. LLC v. Harris, --- S.W.3d ----, 2012 WL 5464340 (Mo.App. S.D. 2012), the Missouri Court of Appeal affirmed a trial court’s finding that the sale of a vehicle at auto auction was commercially reasonable. The Court had some troubling language regarding the auto finance company’s ability to offer custodian-of-records testimony as to documents that it… Read More

Communications Innovators filed a Petition for Declaratory Ruling before the FCC, who set the deadline for commentary as November 15, 2012, and the replies due November 30, 2012.   The FCC’s inquiry suggests breadth that might not only include purported ‘dual purpose’ calls, but also what an ATDS is.  A copy of the Petition is here and the FCC's Request for Comment is here. Read More

In A Fast Sign Co., Inc. v. American Home Services, Inc., --- S.E.2d ----, 2012 WL 5381254 (Ga. 2012), the Georgia Supreme Court found that the TCPA liability derives from the number of attempts (fax) not the number of received faxes.  At the conclusion of a bench trial, the trial court had found that AHS violated the TCPA because it… Read More

In Keshishian v. AFNI Inc., 2012 WL 5378819 (C.D.Cal. 2012), Judge Feess dismissed Plaintiff’s claims as improvidently pleaded.  Plaintiff Marine A. Keshishian alleges that Defendants Afni, Inc., Enhanced Recovery Company, LLC, Equable Ascent Financial, LLC (“Equable”), and Union Adjustment Company, Inc. are engaged in unfair debt collection practices. (Docket No. 3 [Compl.].) Specifically, Plaintiff alleges violations of the Federal Fair… Read More

In Wiebe v. Zakheim & Lavrar, P.A., 2012 WL 5382181 (M.D.Fla. 2012), Judge Smith found that a debt collector had adequately pleaded facts supporting a ‘bona fide error’ affirmative defense. The Defendant's First Affirmative Defense of “bona fide error,” is based upon 15 U.S.C. § 1692k(c) which provides that under the FDCPA, a debt collector is shielded from liability if… Read More

In Gnoinska v. Messerli & Kramer, P.A., 2012 WL 5382180 (D.Minn. 2012), Judge Magnusson held that rudeness did not equate to harassment under the FDCPA. The standard on a Motion to Dismiss is not merely whether the allegations could amount to a claim, but whether the allegations plausibly state a claim. Gnoinska bases her claim on: (1) Doe's unwillingness to… Read More

In a trio of cases, Benedict v. CACH, LLC, 2012 WL 5382255 (S.D. Cal. 2012), Odish v. CACH, LLC, 2012 WL 5382260 (S.D. Cal. 2012), and Jackson v. CACH, LLC, 2012 WL 5382257 (S.D.Cal. 2012), Judge Battaglia held that a frequently-used Plaintiff’s trick stating that “Plaintiff takes no position on the validity of the debt” in support of Plaintiff’s FDCPA… Read More

In McNamara v. Royal Bank of Scotland Group, PLC, 2012 WL 5392181 (S.D.Cal. 2012), Judge Lorenz called out a now-frequently employed tactic by Plaintiff’s counsel, who litigate individual collection torts in state court to be able argue waiver of the arbitration clause in a later-filed class action in federal court.  Judge Lorenz ordered a TCPA class action to arbitration, finding… Read More

Dear readers will recall our previous report on the Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), where Judge Tharpe essentially adopted the Leckler analysis and held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA. (http://www.calautofinance.com/wp-admin/post.php) CCS filed a Motion for Reconsider,… Read More

In Ryabyshchuck v. Citibank (South Dakota) N.A., 2012 WL 5379143 (S.D.Cal. 2012), Judge Gonzalez issued a rare decision applying common sense to the TCPA.   Plaintiff filed a class action against the defendant under the TCPA arising out of confirmatory text messages that were sent to cellular phone numbers voluntarily submitted to Citibank via online credit card applications. Plaintiff had provided… Read More

In McQueen v. American Exp. Centurion Bank, 2012 WL 5301075 (N.D.Cal. 2012), Judge James dismissed a Plaintiff's FDCPA claim on a Rule 12(b)(6) motion because the defendant was a creditor, exempt from the FDCPA. The FDCPA defines “creditor” as “any person who offers or extends credit creating a debt or to whom a debt is owed.” 15 U.S.C. § 1692a(4). The… Read More

In Thompson v. National Credit Adjusters, LLC, 2012 WL 5372577 (D.Minn. 2012), Judge Nelson found a skip tracer’s letter to consumers to obtain telephone information for the skip tracer’s debt collector clients rendered the skip tracer subject to the FDCPA, too.  The facts were as follows. Plaintiff Lamont A. Thompson incurred a consumer debt with Fast Cash Personal Loan. Plaintiff… Read More

In Rigby v. FIA Card Services, N.A., 2012 WL 4123389 (11th Cir. 2012), the Court of Appeals for the 11th Circuit found that an origination dispute regarding the sale of a time share could lead to an FCBA claim against Bank who issued the credit card that paid for the transaction. The Plaintiff had attended a sales presentation for a… Read More