Consumer Finance

In In re Hernandez-Panameno, 2012 WL 4867580 (Bkrtcy.N.D.Cal. 2012), Judge Carlson awarded $18,032 in sanctions and damages against a car dealer who repossessed a vehicle in violation of the Bankruptcy Code’s automatic stay.  The case arose out of a spot-delivery situation where the dealer could not find financing for the sale of the vehicle. Debtors purchased a car from Creditor… Read More

In Meyer v. Portfolio Recovery Associates, LLC--- F.3d ----, 2012 WL 4840814 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit affirmed a certification of a TCPA class action.  Portfolio Recovery Associates, LLC (PRA) appealed the September 14, 2011 district court order granting Jesse Meyer's motion for a preliminary injunction and provisional class certification. Meyer's complaint alleged that… Read More

A copy of the Baltazar decision is here. Read More

In Los Angeles Federal Credit Union v. Madatyan (2012) 2012 WL 4830255, the customer purchased a 2000 Bentley, financed by his credit union.   The RISC required the customer to insure the car against collision damage and name the credit union as a loss payee.  The car was damaged.  The customer's repair shop estimated repair costs at $39,000.  The insurer paid… Read More

In King v. Bank of America, N.A., 2012 WL 4685993 (N.D.Cal. 2012), Judge Spero found a bankrupt Plaintiff’s FCRA claims to be outside of Walls v. Wells Fargo.  The facts were as follows: On July 21, 2010, the United States Bankruptcy Court for the Northern District of California granted Plaintiff a discharge of all dischargeable debts pur-suant to 11 U.S.C. §… Read More

In Sands & Associates v. Julnavorian (2012) 2012 DAR 13972, the California Court of Appeal held that A law firm that is the prevailing party in a lawsuit may not recover fees of its "of counsel" lawyer which represented the firm.  Of counsel lawyers are so closely tied to the law firm that the rule barring fee awards to pro se… Read More

Governor Brown signed AB 1447 and 1534, two of the three pending bills regarding buy-here, pay-here (BHPH) dealers.  Under AB 1447, such dealers must provide 30-day, 1,000-mile warranties and can not use electronic tracking devices or disable vehicles with starter interrupt technology unless they meet certain disclosure requirements. AB 1534 requires dealers to prominently and conspicuously post the reasonable market… Read More

In Transworld Leasing Corp. v. Wells Fargo Auto Finance, LLC, 2012 WL 4578591 (Tex.App.-San Antonio 2012), the Texas Court of Appeals granted summary judgment to a Bank on its Dealer Agreement whose assigning dealer in a vehicle lease transaction had leased a vehicle to an identity thief.  The facts were as follows: Transworld and Wells Fargo entered into a Master… Read More

  In Swearingen v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 4354748 (N.D.Ill. 2012), Judge Chang found that a ‘loud buzzing sound’ in the debt collector’s telephone calls was meant to harass the debtor. In addition, Gordon testified that on numerous occasions he requested that Portfolio provide him with a letter or at least an address for him… Read More

In Demarest v. Ocwen Loan Servicing, LLC, 2012 WL 4320115 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held, in a brief unpublished opinion related to a pro per plaintiff, that “The district court did not abuse its discretion by applying judicial estoppel to Demarest's TILA damages claim because she attempted to pursue the claim without having… Read More

In Owners Ins. Co. v. European Auto Works, Inc., --- F.3d ----, 2012 WL 4052406 (8th Cir. 2012), the Court of Appeals for the Eighth Circuit found insurance coverage for a TCPA unsolicited fax case under the insured’s standard form CGL policy. Owners Insurance Company and Auto–Owners Insurance Company brought this declaratory judgment action seeking a ruling that their insurance… Read More

In Harrold v. Experian Information Solutions, Inc., 2012 WL 4097708 (N.D.Cal. 2012), Judge Alsup found that FCRA still pre-empts other parts of the CCRAA that were not addressed by Gorman. The FCRA provides that “[n]o requirement or prohibition may be imposed under the laws of any State ... relating to the responsibilities of persons who furnish information to consumer reporting… Read More

In Ehrich v. Credit Protection Ass'n, L.P., --- F.Supp.2d ----, 2012 WL 4119737 (E.D.N.Y. 2012), Judge Kohrman found that the facts of the FDCPA case and penalty-only plea did not confer Article III standing.  Judge Kohrman did not address Supreme Court’s dismissal of certiorari (as to RESPA) in Edwards v. First American Corp. 610 F.3d 514 (9th Cir. 2010), nor… Read More

In Dicesari v. Asset Acceptance LLC, 2012 WL 4108944 (E.D.Pa. 2012), Judge Joyner found that false statements in a lawsuit complaint were not actionable under 15 USC 1692e(5) that prohibits a threat to take any action that can not legally be taken or that is not intended to be taken.  The lawsuit is not a “threat”, it is an action,… Read More

In Goodrich v. KDF Automotive, here, the Court of Appeal for the Fourth District found an arbitration clause in a standard form RISC unconscionable, for largely the same reasons as the Sanchez case currently pending before the California Supreme Court. Read More

In Ansari v. Electronic Document Processing, Inc., 2012 WL 3945482 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to FDCPA affirmative defenses. This Court previously considered both of Defendants arguments in Perez. With respect to Defendants' first argument, as set forth in Perez, notwithstanding the textual differences between Rule 8(a)(2) and Rule 8(b)(1)(a), “it is well established that ‘[a]ffirmative defenses are governed… Read More

In Jobe v. Alliance Collection Service, 2012 WL 3985182 (N.D.Miss. 2012), Judge Aycock held that a debt collector’s counter-claim to an FDCPA claim to collect on the debt itself was permissive, rather than compulsory, and declined to exercise jurisdiction over it. Although the Fifth Circuit has not directly addressed the question of whether an action to collect on an underlying… Read More

In Santos v. LVNV funding, LLC, 2012 WL 3985527 (N.D.Cal. 2012), Judge Davila found that individual lawyers are exempt from the Rosenthal Act, but law firms are not. The parties point to a split in authority as to whether a law firm can be considered a “debt collector.” Plaintiff asserts that twelve of the fifteen district courts that have considered… Read More

In Nissan Motor Acceptance Corp. v. Sowega Motors Inc., 2012 WL 3987417 (M.D.Ga. 2012), Judge Land entered summary judgment in favor of a floor plan lender against a dealer guarator on the Guaranty in the sum of $1,418,059.73, and against the dealer guarantor on his cross-complaint for breach of oral contract.  On the latter, Judge Land explained: In his Counterclaim,… Read More

  In Leyse v. Clear Channel Broadcasting Inc., --- F.3d ----, 2012 WL 3854783 (6th Cir. 2012), the Court of Appeals gave Chevron deference to the FCC’s ruling permitting the defendant’s advertisements.  In June 2005, a radio station owned by Clear Channel called Leyse's residential telephone number and delivered a prerecorded message advertising defendant’s radio services.  Leyse filed a class-action… Read More