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
In Webb v. Premiere Credit of North America, LLC, 2012 WL 5199754 (D.Kan. 2012), Judge Robinson granted summary judgment to a debt collector who called a debtor 150 times in 7 months, but was never able to reach the customer during that time. The facts were as follows: The following facts are either uncontroverted, stipulated to, or viewed in the… Read More
On January 2, 2013 the Consumer Financial Protection Bureau (CFPB) starts its supervision of large debt collection firms that account for 63 percent of the market. The CFPB announced Final Rule on Wednesday. The CFPB will regulate 175 debt collection firms that each bring in more than $10 million in annual receipts. See the live-blog entries from the CFPB's roundtable as to what… Read More
Governor Brown signed AB 1534, requiring BHPH car dealers to affix FMV stickers to used vehicles offered for sale. The chaptered legislation is here and the Assembly Analysis is here. Read More
In Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, --- F.3d ----, 2012 WL 5188812 (6th Cir. 2012), the Court of Appeals for the Sixth Circuit held that condominium association fees qualify as a “debt” subject to the FDCPA. Because the statute's definition of a “debt” focuses on the transaction creating the obligation to pay, the obligation to pay is… Read More
In Becker v. Wells Fargo Bank, Nat. Ass'n, 2012 WL 5187792 (E.D.Cal. 2012), Judge Shubb found that a plaintiff’s failure to schedule his claim (wrongful foreclosure) against the Bank in his previous Chapter 13 bankruptcy case estopped him from pursuing the claim in the District Court. Plaintiff filed a voluntary Chapter 13 petition on July 8, 2011. (RJN Ex. 9.)… Read More
In Carson v. Bank of America, N.A., 2012 WL 5041359 (E.D.Cal. 2012), Judge Englund found that FCRA pre-empted Plaintiff’s tort claims for false light and invasion of privacy. Plaintiffs' seventh claim is for false light invasion of privacy. Plaintiffs allege, specifically, that Defendant “reported Plaintiffs late on their mortgage payments, when they were not in fact late, and initiating foreclosure… Read More
[liveblog] Here at the CFPB Hearing in Seattle, Washington. [liveblog] The CFPB is holding a Field Hearing on debt collection and the CFPB's new enforcement positions. (http://www.consumerfinance.gov/blog/save-the-date-seattle-washington/) I am attending the Field Hearing, and am Live-Blogging from the event. Read More
In Bais Yaakov of Spring Valley v. Peterson's Nelnet, LLC, 2012 WL 4903269 (D.N.J.), defendant in a TCPA class action moved to dismiss, arguing that New York Civil Practice Law § 901(b) prevents the maintenance of Plaintiff's TCPA claim as a class action. Defendant argued that the language of § 227(b) (3)—“A person or entity may, if otherwise permitted by… Read More
In Scott v. Merchants Ass'n Collection Div., Inc., 2012 WL 4896175 (S.D.Fla. 2012), Judge O’Sullivan found that the Plaintiff’s pleading burden in a TCPA cell phone case did require the Plaintiff to plead an absence of consent because consent is an affirmative defense borne by the Defendant. As explained by this Court: “to establish a TCPA violation, Plaintiff must demonstrate… Read More
In Martin v. Cellco Partnership, 2012 WL 5048854 (N.D.Ill. 2012), Judge Guzman found that an in pro per Plaintiff's TCPA claim against his cell phone carrier survived an FRCP 12b6 Motion arising out of autodialed debt collection calls placed by his creditor to his cell phone. Verizon claims the TCPA claims against it must fail because it cannot be held liable for… Read More
In Ramirez v. Trans Union, LLC, --- F.Supp.2d ----, 2012 WL 4954120 (N.D.Cal. 2012), Judge Corely allowed a CCRAA claim to proceed against a CRA simultaneously with a FCRA claim, and found that FCRA’s prohibition against injunctive relief did not apply to CCRAA claims. The District Court found no impediment to simultaneously maintaining CCRAA and FCRA claims. The only California… Read More
In Gutierrez v. State Farm Mut. Ins. Co., 2012 WL 4902888 (N.D.Cal. 2012), Judge Davila found that an automobile finance company was not a ‘debt collector” within the meaning of the FDCPA. The facts were as follows: Plaintiffs are husband and wife. See FAC, Docket Item No. 38, at ¶ 2. At some point prior to July, 31,… Read More
In White v. Wells Fargo Bank, NA, 2012 WL 4958516 (N.D.Ohio 2012), Judge Polster found no OCC pre-emption of Ohio’s post-repossession notice requirement: The only courts to have addressed these OCC regulations and state-law notice requirements relating to repossession have reached the same conclusion. See Aguayo v. U.S. Bank, 653 F.3d 912 (9th Cir.2011), cert. denied, U.S. Bank Nat. Ass'n… Read More
In Limtiaco v. Auction Cars.com, LLC, 2012 WL 4911726 (D.Nev. 2012), Judge Du found that a car dealer’s failure to sell a vehicle at market price constituted a hidden finance charge under TILA, even though the RISC did not finance any part of the purchase. On July 24, 2010, Limtiaco entered into a Motor Vehicle Purchase Order and Federal Disclosure… Read More
In La Gar Marketing, Inc. v. W. Finance & Lease, Inc., 2012 WL 4898785 (Ohio App. 9 Dist. 2012), the Ohio Court of Appeal found in favor of a commercial lender as against a bona-fide consumer purchaser of a vehicle under Ohio law. The Court of Appeal relied on precedent finding dealer’s floor plan lender’s security interest superior to a… Read More
In Chesbro v. Best Buy Stores, L.P., --- F.3d ----, 2012 WL 4902839 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit found that ‘robo-dialed’ informational calls can be telemarketing calls under the TCPA. The facts were as follows: Michael Chesbro, on behalf of himself and a class of similarly situated plaintiffs, argues that a series of automated… Read More
In Fregoso v. Wells Fargo Dealer Services, Inc., 2012 WL 4903291 (C.D.Cal. 2012), Judge Otero allowed a FCRA identity theft case to go to the jury against a third party debt collector. As to the identity theft claim under FCRA, Judge Otero found that no FTC Affidavit of Theft was required: PCC argues that if Plaintiff is a victim of… Read More
In Melendez v. CACH, LLC, 2012 WL 4902687 (N.D.Cal. 2012), Judge Wilken found the “continuing violation” theory for FDCPA statute of limitations purposes inapplicable outside on-going telephone call cases. The Attorney Defendants, Laskin Law Offices, CACH and SquareTwo contend that the FDCPA claim is barred by the one-year statute of limitations pursuant to 15 U.S.C. § 1692k(d). Under Ninth Circuit… Read More
In Sherf v. Rusnak/Westlake et al., 2012 WL 4882547 (Cal.App. 2 Dist. 2012), the Court of Appeal in an unpublished decision, followed a similar analysis to the Caron decision, finding the class action waiver and arbitration clause in an automobile RISC enforceable, but remanding to the trial court for a determination of unconscionability. Sherf had signed a typical RISC for the… Read More
