In Hinderliter v. Diverisified Consultants, Inc., 2012 WL 3888148 (N.D.N.Y. 2012), Judge Mordue granted summary judgment for a debt collector on a telephonic harassment claim because the efforts to call were efforts to reach the Plaintiff, not to harass. Plaintiffs also complain that during the August 23, 2010 call, Losco stated that failure to resolve the debt would affect Dean… Read More
In Brennan v. National Action Financial Services, Inc., 2012 WL 3888218 (E.D.Mich. 2012), Judge Cleland granted leave to amend to allow individual officers of the debt collection agency to be named to the lawsuit as defendants under the TCPA. It is unsettled as to whether officers can be held personally liable under section 217 of the TCPA. The few courts… Read More
In Easterling v. Collecto, Inc., --- F.3d ----, 2012 WL 3734389 (2d Cir. 2012), the Court of Appeals for the Second Circuit held that a student loan debt collector’s representation that the debtor’s loans were not eligible for discharge in bankruptcy was false, triggering FDCPA liability. Instead, the operative inquiry in this case is whether the hypothetical least sophisticated consumer… Read More
In Price Auto Sales, Inc. v. Sanders, 2012 WL 3734388 (Tex.App.-Dallas 2012), the Texas Court of Appeal held that it need not decide whether the completion of a repossession was an affirmative defense to a claim that the secured party repossessed a vehicle in breach of the peace because the Court of Appeal was not convinced that the repossession was… Read More
In Owen v. Jim Allee Imports, Inc., --- S.W.3d ----, 2012 WL 3755750 (Tex.App.-Dallas 2012), the Texas Court of Appeal held (again) that it was so well-settled and proper for a car dealer to roll trade-in negative equity into the purchase price of the RISC that a Plaintiff’s counsel should be sanctioned for arguing otherwise. In Bledsoe, this Court considered… Read More
In Beard v. Sentry Credit, Inc., 2012 WL 3778880 (E.D.Cal. 2012), Judge Mueller partially granted summary judgment on Plaintiff’s FDCPA harassment claim. Judge Mueller found that the call volume and pattern did not support a claim of harassment. Plaintiff later estimated that Sentry called her at least seven times per day, every day over the course of months (Id. at… Read More
In Tourgeman v. Collins Financial Services, Inc., 2012 WL 3731807 (S.D.Cal. 2012), Judge Bencivengo rejected a Plaintiff’s FDCPA claim grounded on a Creditor’s collection firm’s misidentification of the creditor and account number in collection correspondence and, ultimately, in a collection lawsuit. Judge Bencivengo addressed the liability of the creditor/debt collector for this mistake. Judge Bencivengo found the misidentification not material… Read More
In Snead v. Aurora Loan Services, LLC, 2012 WL 3756887 (E.D.Cal. 2012), Judge Drozd applied judicial estoppel to prevent a consumer litigant from bringing a consumer protection claim (wrongful foreclosure) that the consumer did not list in her bankruptcy schedules. “Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of… Read More
In Davis v. HSBC Bank Nevada, N.A., --- F.3d ----, 2012 WL 3804370 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a credit card company’s on-line TILA disclosures identifying that an annual fee would be required provided a safe-harbor against a false advertising claim based on a claim that a retailer’s advertisements failed to disclose… Read More
In Snyder v. Daniel N. Gordon, P.C., 2012 WL 3643673 (W.D.Wash. 2012), Judge Jones found that a single non-itemized statement of the debt in the debt collector's initial communication was deceptive because it did not itemize the obligation. As far as the court is aware, the Ninth Circuit has not directly addressed the issue of whether a debt collector must provide the… Read More
In Harrier v. Verizon Wireless Personal Communications LP, 2012 WL 3655355 (M.D.Fla. 2012), Judge Moody addressed a petition to arbitrate a TCPA claim. Plaintiff sued Verizon for emailing her to collect a debt after she received a bankruptcy discharge on Verizon's debt. Verizon moved to compel arbitration. Judge Moody denied the petition, holding: Harrier alleges that despite the bankruptcy discharge, Verizon called… Read More
In Angel v. American Recovery Services Inc., 2012 WL 3594371 (W.D.Wash.), Judge Coughenour followed the 9th Circuit’s rule in Guerrero that the FDCPA does not apply to communications with debtor’s counsel. ARSI contends that any relief for Plaintiff on the facts alleged is foreclosed by the Ninth Circuit's decision in Guerrero v. RJM Acquisitions, 499 F.3d 926 (9th Cir.2007). In… Read More
In Jacques v. Solomon & Solomon P.C., --- F.Supp.2d ----, 2012 WL 3581172 (D.Del. 2012), Judge Andrews addressed a debt collector’s obligation to validate a debt both before and after a debtor’s dispute of the dispute. As to the first three allegations, each of which relate to the validity of the debt and whether Northland had the authority to attempt… Read More
In Zinni v. ER Solutions, Inc., --- F.3d ----, 2012 WL 3641911 (11th Cir. 2012), the Court of Appeals for the Eleventh Circuit ducked the issue of whether a Rule 68 offer in an FDCPA case divested the federal court of Article III case or controversy jurisdiction by finding that the defendant’s offer did not completely dispose of the Plaintiff’s… Read More
In Hoover v. Monarch Recovery Management, Inc., 2012 WL 3638680 (E.D.Pa. 2012), Judge Gardner allowed a telephonic harassment case to proceed, but dismissed an TCPA “unintended recipient” case based on Meadows as to land-line calls, deferring to the FCC on the subject. On the harassment case, Judge Gardner found that Plaintiff stated a claim for calls, on average, ten times per… Read More
In Aleman v. Ellington Auto Sales & Financing, LLC, 2012 WL 3611212 (D.Conn. 2012), Judge Underhill found that a downpayment on a car evidence by a note was not a deferred down-payment under TILA, but rather was permitted under Reg. Z’s allowance of a creditor to disclose the terms of the Note separately from the disclosures pertaining to the RISC. … Read More
In Thomas v. Taco Bell Corp., --- F.Supp.2d ----, 2012 WL 3047351 (C.D.Cal. 2012), Judge Carney found that the TCPA imposes vicarious liability, but found that none existed under the facts of the case. Section 227(b)(1)(A)(iii) of the TCPA provides as follows: It shall be unlawful for any person within the United States, or any person outside the United States… Read More
In Meyer v. Santander Consumer USA, 2012 WL 3528117 (E.D.Cal. 2012), Judge Hollows held that an automobile finance company was a ‘creditor’ and not a ‘debt collector’ under the FDCPA. Judge Hollows found no difference that the finance company had purchased the portfolio of the Plaintiff’s original creditor. Here, Santander has produced substantial evidence that it was plaintiff's creditor as… Read More
In Goodridge v. KDF Automotive Group, Inc., 2012 WL 3635279 (Cal.App. 4 Dist. 2012), the Court of Appeal in an unpublished decision adopted the Sanchez analysis lock-stock-and-barrel, declining to order an automobile case to arbitration due to the ‘unconscionable’ arbitration clause in the RISC. Unconscionability. Applying a sliding scale for procedural and substantive unconscionability, we conclude the Contract's arbitration clause… Read More
In O'Brien v. American Exp. Co., 2012 WL 3628667 (S.D.Cal. 2012), Judge Moscowitz addressed arbitrability of a TCPA class-action claim. Plaintiff Karin O'Brien brought the putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, alleging that Defendant American Express contacted her and others similarly situated by telephone without express prior consent and in violation of… Read More
