Consumer Finance

In Iskanian v. CLS Transportation Los Angeles, Inc., here, the Court of Appeal for the Second District found that Concepcion overruled the Gentry test for determining the validity of a class action waiver in an arbitration clause, and required waiver of such class action rights. The Gentry court laid out a four-factor test for determining whether a class waiver should… Read More

In Quigley v. Verizon Wireless, 2012 WL 1945784 (N.D.Cal. 2012), Judge Chen allowed an FDCPA plaintiff leave to amend to allege a violation of 15 U.S.C. § 1692c where the debtor claimed that he could allege that the debt collector knew where he was before the debt collector started to call third parties. Section 1692c covers communications in con-nection with… Read More

In Torres v. ProCollect, Inc., 2012 WL 1969280 (D.Colo. 2012), Judge Babcock found wanting a voicemail message left for a debtor under the FDCPA because it did not identify the debt collection agency. Thus, the only way for an identity disclosure to be meaningful to a consumer is if it discloses the name of the debt collection company. Moreover, “because… Read More

In Subhani v. JPMorgan Chase Bank, Nat. Ass'n, 2012 WL 1980416 (N.D.Cal. 2012), Judge Alsup found FCRA pre-emption of the UCL and Song-Beverly Act, except where such claims arose from Civil Code § 1785.25(a) under Gorman.  Judge Alsup explained: In the wake of Gorman, at least two courts in this district have held that claims brought under California's UCL predicated… Read More

In Knutson v. Sirius XM Radio Inc., 2012 WL 1965337 (S.D.Cal. 2012), Judge Battaglia ordered a TCPA claim to arbitration, notwithstanding the consumer’s argument that arbitration would not afford him the ability to vindicate his TCPA rights as he would like. Judge Battaglia rejected the claim and ordered the matter to arbitration. Plaintiff asserts that if he is ordered to… Read More

In Gager v. Dell Financial Services, LLC 2012 WL 1942079 (M.D.Pa. 2012), Judge Mariani found irrelevant the whole debate over whether the TCPA requires revocation of consent to be called on a cellular telephone to be in writing or not.  Judge Mariani instead found that nothing in the TCPA allows consent, once given, to be revoked by the consumer.  Instead,… Read More

SCOTUS granted cert in the Marx v. General Revenue Corporation case that we reported on previously. SCOTUS' review will address whether a prevailing defendant in an FDCPA matter can recover its costs under FRCP 54(d) or must prove, in order to recover such costs, whether the Action was filed in bad faith by the Plaintiff, as required by 15 USC 1692k(a)(3)  … Read More

In Wilson v. Discover Bank, 2012 WL 1899539 (W.D.Wash. 2012), Judge Leighton exercised permissive supplemental jurisdiction over a counter-claim for the underlying $4,000 debt in a case filed under the TCPA.  Judge Leighton found that exercising jurisdiction over the debt collection claim did not impede enforcement of the consumer’s rights under the TCPA. Where supplemental jurisdiction exists, a district court… Read More

In Valle v. National Recovery Service, here, Judge Merryday held that 82 calls during a 252 day span did not constitute harassment as a matter of law, granting summary judgment for the debt collector under the FDCPA. Attempting to show a triable issue of fact, Valle cites only the phone calls from National. Occurring during a 252-day span, the eighty-two… Read More

In HSBC Bank Nevada, N.A. v. Aguilar, --- Cal.Rptr.3d ----, 2012 WL 1813379 (Cal.Super.A.D. 2012), the Appellate Division of the Superior Court required the superior court clerk to enter default judgments in debt collection cases.  Once a default has been entered on proper service of process, no further prove-up is necessary and the court clerk’s requirement as a condition of… Read More

Yesterday, the FTC prevailed against the National Automobile Dealers' Association's challenge to the FTC's Risk Based Pricing Rules under FACTA.  The FTC's Motion to Dismiss was granted and the NADA's Summary Judgment Motion was denied.  (National Auto. Dealers Ass'n v. F.T.C., --- F.Supp.2d ----, 2012 WL 1854088 (D.D.C. 2012) Judge Huvelle summarized the case as follows: The National Automobile Dealers… Read More

In Zemeckis v. Global Credit & Collection Corp. --- F.3d ----, 2012 WL 1650479 (7th Cir. 2012), the Court of Appeals for the Seventh Circuit addressed what constitutes puffery or material misrepresentations in a collection letter under the FDCPA.  To summarize, the Court of Appeals held that  (1) suggestions in dunning letter, for debtor to “take action now” and call “today,”… Read More

In McEndree v. Rash Curtis & Associates, 2012 WL 1640465 (E.D.Cal. 2012), Judge England found that liability cascaded down through the Rosenthal Act and FDCPA when a debt collector communicated about the debt with a girlfriend whom the debt collector mistakenly believed was the debtor's spouse.  Judge England found liability for impermissibly violating the prohibition against discussing more than location information… Read More

In Smith v. Capital One Financial Corp.  2012 WL 1669347 (N.D.Cal. 2012), Judge Hamilton held that an FDCPA claim and common law invasion of privacy claim would not lie against a credit card company collecting its own obligations. However, a company that extends a consumer credit line (e.g., a credit card company) is in the business of extending credit, not the… Read More

In O'Brien v. American Exp. Co., 2012 WL 1609957 (S.D.Cal. 2012), Judge Skomal granted Plaintiffs' discovery requests to oppose a petition to compel arbitration filed by the Defendant in a TCPA class action.  The issue was framed as follows: Plaintiff also seeks to take discovery to support an unconscionability defense to the arbitration agreement. American Express argues that after the Supreme… Read More

In Osorio v. State Farm Bank, F.S.B.--- F.Supp.2d ----, 2012 WL 1671780 (S.D.Fla. 2012), Judge Middlebrooks found that the debtor's consent to be called on her cell phone transferred to her co-habitating significant other, so as to eliminate liability under the TCPA. Applying the regulations promulgated by the FCC, Betancourt unequivocally provided her express consent that State Farm could call 8626… Read More

The Federal Trade Commission has issued an advisory affirming consumers' rights under the FTC's Holder Rule which protects the rights of consumers who make a purchase using credit obtained through the merchant.  The Rule, formally known as the "Trade Regulation Rule Concerning Preservation of Consumers' Claims and Defenses," protects consumers when merchants sell a consumer's credit contracts to other lenders. Specifically, it… Read More

Previously, we reported on the Soppett v. Enhanced Recovery Appeal before the Court of Appeals for the Seventh Circuit.  The Court issued its decision today. In Soppett v. Enhanced Recover Company, LLC, here, the Court of Appeals for the Seventh Circuit held that ‘consent’ under the TCPA to call cellular telephones by autodialer means consent from the person subscribing to… Read More

In Buslepp v. Improv Miami, Inc., 2012 WL 1560408 (S.D.Fla. 2012), Judge Cohn held that a TCPA text message class action stated a claim and that Plaintiff need not plead that he was actually charged for the text message. The fact that Plaintiff does not identify the specific telephone number called or the identities of the putative class members is… Read More

In Consumer Data Industry Ass'n v. King, --- F.3d ----, 2012 WL 1573563 (10th Cir. 2012), the Court of Appeals for the Tenth Circuit held that the consumer reporting agency trade group – the Consumer Data Industry Association – had standing to challenge New Mexico’s identity theft/credit reporting laws as preempted by FCRA. The CDIA’s challenge to New Mexico’s law… Read More