Consumer Finance

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

In Long v. International Recovery Systems, Inc., 2012 WL 3597748 (W.D.Mo. 2012), Judge Maughmer held that an out-of-state debt collector placing debt collection calls to an in-state resident subjected itself of jurisdiction in that state.  Carl Leon Long sued International Recovery Systems, Inc. (“IRS, Inc.”), alleging that IRS, Inc. violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et… Read More

In In re Barlaam, 2012 WL 3288725 (Bkrtcy.C.D.Cal. 2012), Judge Mund found triable issues of fact regarding a creditor’s position that the bankruptcy debtor’s obligations were non-dischargeable on a $305,000 Rolls-Royce and $100,000 BMW.  The debtor had claimed income in his credit application(s) of $720,000 and $530,000, but, in the bankruptcy proceedings, claimed that he had virtually no income during… Read More

In Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL 3292838 (N.D.Ill. 2012), Judge Lefkow found that a TCPA Plaintiff stated Article III standing under the ‘damages’ pleaded. Defendants argue that “injury in fact” should be equated with “actual damages,” and that plaintiffs' failure to allege actual damages indicates that they lack standing. Leading Edge asserts that plaintiffs must allege… Read More

In Harley-Davidson Credit Corp. v. Turudic, 2012 WL 3314919 (D.Or. 2012), Harley-Davidson financed an airplane (Ed. no, not a typo).  After it repossessed the airplane, it sued on the balance.  The debtor claimed that the HDCC owed it a fiduciary duty to maximize recovery, to assist him the sale of the aircraft, and to otherwise protect his financial interest.  Judge… Read More

In Roberts v. NRA Group, LLC, 2012 WL 3334488 (M.D.Pa. 2012), Judge Caputo distinguished between delinquent debts and debts in “default” for purposes of triggering the FDCPA.  Judge Caputo granted summary judgment to a debt collector on the basis that a delinquent hospital debt assigned to it was not “in default” at the time of the assignment. Here, Defendant's motion… Read More

The CFPB's and FTC's amicus brief urges the Supreme Court to overturn the Marx decision of the U.S. Court of Appeals for the Tenth Circuit, where Ms. Marx sued General Revenue Corporation under the FDCPA.  Marx lost.  The 10th Circuit ruled that Marx was responsible for paying more than $4,500 to cover the debt collector’s litigation costs, even though she… Read More

In Truly Nolen of America v. Superior Court (2012) 2012 DAR 11207, the Court of Appeal agreed that various appellate courts in California, after Concepcion, found that Concepcion is not compatible with the California Supreme Court's  Gentry decision.  However, the Court of Appeal declined to disregard Gentry until the California Supreme Court tells the lower courts to do so, since Concepcion did… Read More

In Obremski v. Springleaf Financial Services, Inc., 2012 WL 3264521 (M.D.Fla. 2012), Judge Hernandez-Covington ordered a consumer’s TCPA claim to arbitration, finding that the TCPA claim along with the other allegations fell within the scope of the arbitration clause. Here, the Court finds that Obremski's claims “arise from” or “relate to” the Agreement, as they are all based upon allegations… Read More

In Torres v. National Enterprise Systems, Inc., 2012 WL 3245520 (N.D.Ill. 2012), Judge Der-Yeghiayan found a TCPA penalty-only lawsuit still conferred Article III ‘case-or-controversy’ jurisdiction over the case. NES argues that this court lacks subject matter jurisdiction over the TCPA claim based upon NES's contention that Torres lacks standing to bring a TCPA claim. Article III of the federal Constitution… Read More

In Ear v. Empire Collection Authorities, Inc., 2012 WL 3249514 (N.D.Cal. 2012), Judge Conti addressed the post-Iqbal/Twombly standard required for pleading affirmative defenses under the Rosenthal Act/FDCPA. It is true that there is a split within this circuit, but judges in this district have, uniformly so far as the undersigned can tell, adopted the plausibility standard. E.g., Barnes v. AT… Read More

In Mora v. Harley-Davidson Credit Corp.,2012 WL 3245518 (E.D.Cal. 2012), Judge Ishii adopted the Magistrate’s ruling certifying an NOI class against HDCC, rejecting the argument that an arbitration clause contained in some but not all of the RISCs could defeat class certification.  Magistrate McAuliffe's full opinion which Judge Ishii reviewed can be found at Mora v. Harley-Davidson Credit Corp., 2012… Read More

In Fisk v. ARS Nat. Services, Inc., 2012 WL 3236569 (N.D.N.Y. 2012), Judge McAvoy rejected the ‘continuing violation’ theory for FDCPA statute of limitations purposes, refusing to strike the affirmative defense from defendant’s answer. Plaintiff moves to strike Defendants' statute of limitations defense on the ground that the applicable statute of limitations is one year, 15 U.S.C. § 1692k(d), the… Read More

In Hanks v. Talbott Classic National Bank, here, Judge Illston found that a Plaintiff stated a claim against a creditor when a charge-off notation reported to the CRAs pre-Petition was re-inserted post-Discharge.  In so doing, Judge Illston implied that the pre-Petition charge-off reporting complied with FCRA, but found that the re-insertion post-Petition did not and that the Plaintiff was not deprived… Read More

In Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D.Cal. 2012), Judge Huff found that a single, confirmatory text message did not violate the TCPA, nor had Plaintiff pleaded the use of an ATDS.  Plaintiff filed a class action based on the following facts: Plaintiff alleges that on or about February 14, 2012, he responded to an invitation to complete… Read More

In Roots v. American Marine Liquidators, Inc., 2012 WL 3136462 (D.S.C. 2012), Judge Anderson entered a default judgment against a marine financer for debt collection tactics employed in the collection of a debt secured by a boat. American Marine Liquidators, Inc. was found to be in default in this action on May 31, 2012 [Doc. 9];    American Marine Liquidators, Inc.,… Read More

In Drew v. Equifax Information Services, LLC --- F.3d ----, 2012 WL 3186110 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a furnisher could have violated its statutory duty under FCRA to block all reporting following its investigation of the consumer's identity theft claim.  A consumer had reported to a credit bureau that his identity had… Read More

In Lox v. CDA, Ltd., --- F.3d ----, 2012 WL 3124781 (7th Cir. 2012), the Court of Appeals for the Seventh Circuit found that extrinsic evidence was not required to demonstrate material falsity of a collection letter that stated that a consumer “may” have to pay attorneys’ fees, when there was neither a statutory nor contractual basis for recovery of… Read More

In Smith v. Capital One Financial Corp., 2012 WL 3138024 (N.D.Cal. 2012), Judge Hamilton found that an in pro per Plaintiff properly pleaded that a debt collector called her too early in the morning: Midland first argues that the FAC does not state a claim under the FDCPA. With regard to the allegation regarding the 7:00 a.m. EST call, Midland… Read More

In Cousineau v. Unifund CCR Partners, 2012 WL 3135687 (D.Colo. 2012), Judge Arguello held that a Plaintiff still must demonstrate factual inaccuracy of a credit report regardless of how well a furnisher re-investigates a consumer dispute. Plaintiff contends that Defendant's investigations were unreasonable because Defendant failed to discover documents from Chase showing that Plaintiff asked to be removed from the… Read More