Consumer Finance

In Mortimer v. JP Morgan Chase Bank, Nat. Ass'n, 2012 WL 3155563 (N.D.Cal. 2012), Judge Wilken addressed the impact of a now commonly-pleaded claim that a creditor continued to report late payments that were not made during a bankruptcy.  Judge Wilkens found that Plaintiffs failed to plead an inaccuracy – meaning that they actually made the payments during the bankruptcy… Read More

In Caron v. Mercedes–Benz Financial Services USA LLC --- Cal.Rptr.3d ----, 2012 WL 2579662 (Cal.App. 4 Dist. 2012), the Fourth District Court of Appeal found that the dealer and finance company adequately authenticated the sales contract in moving to compel arbitration.   Defendants attached both pages to their motion, and the first page matched the one plaintiff had attached her complaint,… Read More

In Cisneros v. American General Financial Services, Inc. 2012 WL 3025913 (N.D.Cal. 2012), Judge Breyer found an arbitration clause in a contract educational services sold door-to-door was procedurally and substantively unconscionable. Plaintiff Lucresia Cisneros (“Plaintiff”) contends that Defendants American General Financial Services, Inc., Hispanic Educational, Inc., and Logic's Consulting, Inc., engaged in a door-to-door scheme selling personal computers and software… Read More

The Court of Appeals issued its ruling yesterday.  In Evon v. Law Offices of Mickel, here, the Court of Appeals for the Ninth Circuit found deceptive the practice of sending collection letters to the debtors at their employer's address. Next, even if Mickell assumed that some debtors receive mail at their place of employment, it is not reasonable for Mickell… Read More

In McEndree v. Rash Curtis & Associates, 2012 WL 3028010 (E.D.Cal. 2012), Judge England held that violation of a cease-and-desist exists even if the debtor never answers the telephone call that forms the basis for the cease and desist.  Judge England explained: Rash Curtis advances two arguments in support of its futility argument. First, it argues that because Plaintiff did… Read More

We had hoped the issue would be addressed by the Supreme Court (as to RESPA) in Edwards v. First American Corp. 610 F.3d 514 (9th Cir. 2010), but SCOTUS dismissed cert. as improvidently granted.  So, the district court in Smith v. Microsoft Corp. 2012 WL 2975712 (S.D.Cal. 2012) addressed the issue whether a TCPA Plaintiff who otherwise had suffered no… Read More

In Evans v. Williams & Fudge, Inc., 2012 WL 3025164 (S.D.Cal. 2012), Judge Miller found Rosenthal Act claims subject to arbitration, explaining: Here, the court concludes that the debt collection practices at issue directly arise or relate to the Promissory Note. As the broad language in the arbitration provision provides that any claim or dispute arising or related to the… Read More

In Midland Funding, LLC v. Pipkin, --- P.3d ----, 2012 WL 2849295 (Utah App.), 2012 UT App 185 (2012), the Court of Appeal catalogued the caselaw holding that an FDCPA violation is not a defense to the underlying debt itself or, conversely, that FDCPA compliance is not a pre-condition to collection on the obligation. Pipkin also argues that the Fair… Read More

In McMahon v. LVNV Funding, LLC, 2012 WL 2597933 (N.D.Ill. 2012), the defendant debt collector was sued in a class action alleging that the debt collector was required to disclose that stale debt was barred by the statute of limitations and the debt collector could not sue on it.  Plaintiffs alleged that the FTC had taken the position in an unrelated… Read More

In Freeman v. ABC Legal Services, Inc., 2012 WL 2589965 (N.D.Cal. 2012), Judge Chen held in consolidated proceedings alleging multiple claims of ‘sewer’ or ‘gutter’ service of process by a debt collector that the Plaintiffs lacked Article III standing to bring a UCL claim based on the FDCPA.  The defendant collected no money from the defendants, so restitution was not… Read More

In Grant-Fletcher v. Brachfeld Law Group, PC, 2012 WL 2523094 (D.Md. 2012), Judge Nickerson held that a debt collector telling a consumer, after the 30 day validation period expired, that the consumer could not dispute the debt constitute a false representation.  The facts were as follows.   This action arises from communications made in connection with Defendant's efforts to collect debts… Read More

In Ayvazian v. The Moore Law Group, et al, (Case No. 2:12-CV-01506-ODW) 2012 WL 2411181 (C.D. Cal. 2012) (Order Granting Sanctions Pursuant to FRCP Rule 11) and Minasyan v. Creditors Financial Group, LLC, et al, (Case No. 2:12-CV-01864-ODW) 2012 WL 2328242 (C.D. Cal. 2012) (Order Granting Sanctions Pursuant to FRCP Rule 11), Judge Otis Wright held that neither a lawyer nor… Read More

In Pace v. Portfolio Recovery Services, LLC, 2012 WL 2398024, (W.D.Mo. 2012),  here, Judge Sachs held that a Plaintiff who gave ambiguous testimony on mailing of a Cease and Desist letter under FDCPA was not entitled to the presumption of the mailbox rule wherein delivery is presumed. Whether plaintiff can create a jury issue over adequately having given written notification to… Read More

In a decision that is important to auto finance companies liable under the FTC Holder Rule where the assigning dealer is defunct, the Fifth District Court of Appeal held in Pierce v. Western Sur. Co., --- Cal.Rptr.3d ----, 2012 WL 2362579 (Cal.App. 5 Dist.), that an Automobile Dealer Surety Bond also covered the attorneys’ fees incurred by a consumer Plaintiff’s… Read More

The Court of Appeals for the Ninth Circuit held in an unpublished decision, Grant v. Capital Management Services, L.P., 449 Fed.Appx. 598, 2011 WL 3874877 (9th Cir. 2011), that the Plaintiff need not plead consent as part of its prima facie case; the defendant bears that burden.  The unpublished decision dealt with whether the District Court erred in remanding the… Read More

In Trompeter v. Ally Financial, Inc., 2012 WL 1980894 (N.D.Cal. 2012), Judge Wilken found the LawPrinting RISC Arbitration procedurally substantively unconscionable, denied the petition to arbitrate, and refused the stay the case pending the outcome of the California Supreme Court’s decision in Sanchez.   The Plaintiff,  John Trompeter, had filed a putative class action against Defendant Ally Financial, Inc., alleging that… Read More

In Conrad v. General Motors Acceptance Corporation, here, Judge Godbey denied Plaintiff's Motion for Class Certification in a TCPA cellular telephone case, holding that issues of consent presented individualized inquiries.  Judge Godbey explained: Even if the Court were to have found the putative class sufficiently numerous and that it satisfied the remaining Rule 23(a) requirements, the class would fail under both… Read More

In Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Absence of consent is not a pleading requirement imposed on a TCPA plaintiff. Hilton… Read More

In Riggs v. Prober & Raphael, A Law Corp. --- F.3d ----, 2012 WL 2054640 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a debt collector violates the FDCPA if his letter starting collection efforts states expressly that the debtor must dispute the debt in writing within 30 days or have the debt deemed valid. Camacho… Read More

In Zavodnick v. Gordon & Weisberg, P.C., 2012 WL 2036493 (E.D.Pa. 2012), Judge Diamond whacked an FDCPA Plaintiff’s counsel’s fee application, rejecting as irrelevant and unreliable the boilerplate ‘fee surveys’ often submitted to justify exorbitant rates.  Judge Diamond explained: In support, Kimmel & Silverman has submitted evidence relevant to law practice in other regions. The firm offers affidavits from two… Read More