In Rodriguez v. Discovery Bank, 2012 WL 1520073 (S.D.Cal. 2012), Judge Moskowitz explained what validation is required by a debt collector in response to a consumer dispute. Plaintiff misunderstands Defendants' duty with respect to verification of the debt. The Ninth Circuit has made it clear that “verification of a debt involves nothing more than the debt collector confirming in… Read More
In Gauci v. Citi Mortg., 2012 WL 1535654 (C.D.Cal. 2012), Judge Otis Wright held that FCRA’s accuracy requirement is not designed to adjudicate a dispute between a furnisher, CRA, and a consumer. Plaintiff argues that “CMI had no right to have deemed Plaintiff a delinquent payer when CMI made the mistake of charging Plaintiff an incorrect amount of taxes.” (Opp'n… Read More
Our apologies for some recent spam, delays in getting posts up, and posts appearing on the weblog without text. Microsoft's update of Internet Explorer reeked havoc on our weblog, and we've worked most of the kinks out with an upgrade of the website's software. We appreciate your indulgence, and posts will begin again. Our next step will involve a facelift… Read More
In Beard v. Santander Consumer USA, Inc., 2012 WL 1292576 (E.D.Cal. 2012), Judge McAuliffe enforced an arbitration clause against a servicemember who filed a class action against an automobile finance company arising from its predecessor’s repossession of the servicemember’s vehicle. In the underlying action, Beard brings a putative class action against Defendants alleging violations of the Servicemembers Civil Relief Act,… Read More
The Legislation is quite simple, purporting to amend Civil Code section 1589.5 as follows: (a) Any term in a contract of adhesion purporting to waive the right to join or consolidate claims, or to bring a claim as a representative member of a class or in a private attorney general capacity shall be deemed to lack the necessary consent to… Read More
We recently argued, in opposing an attorneys' fee motion, that a survey of attorneys fee rates across the country – and in California –was unreliable as supporting evidence of a reasonable attorneys' fee rate. We argued Plaintiffs’ counsel states that they “maintain an updated survey of free rates charged by other California consumer protection attorneys.” No they don’t. They just… Read More
In Linko v. American Educ. Services, 2012 WL 1439052 (M.D.Pa. 2012), Judge Jones found auto-dialed calls to residential landlines for purpose of debt collection exempt from the TCPA. Judge Jones explained: Plaintiffs contend that the Defendants violated the TCPA by contacting Plaintiffs on their residential telephone using prerecorded automated telephone messages without first obtaining prior express consent to do… Read More
In Bridge v. Ocwen Federal Bank, FSB, --- F.3d ----, 2012 WL 1470146 (6th Cir. 2012), the Court of Appeals for the Sixth Circuit held that a creditor who acquires a debt portfolio, part of which is in default, is a debt collector under the FDCPA for that portion of the portfolio that was in default at the time of… Read More
In Tourgeman v. Collins Financial Services, Inc., 2012 WL 1327824 (S.D.Cal. 2012), Judge Bencivengo held that a Plaintiff lacked standing in a class action to pursue a UCL claim based on a violation of the FDCPA/Rosenthal Act. Upon consideration of the briefing before the Court, and argument of counsel, the Court finds that Plaintiff has not met his burden… Read More
In Johnson v. PMAB, LLC, 2012 WL 1379843 (W.D.N.C. 2012), Judge Conrad held that only consumers, and not third parties, have standing to pursue a cease-and-desist violation under the FDCPA. The Fourth Circuit addressed more general standing to sue under the FDCPA in Rawlinson v. Law Office of William M. Rudow, LLC, No. 10–2148, 2012 WL 19666 (4th Cir.… Read More
In Shupe v. JPMorgan Chase Bank of Arizona, 2012 WL 1344786 (D.Ariz. 2012), Judge Collins held that plaintiffs stated a claim under the TCPA.Judge Collins found that the consumers revoked the “Established Business Relationship” under the TCPA which otherwise permitted auto-dialed calls to their residential telephone number. The FCC has unequivocally stated that calls made solely for the purpose… Read More
In Shap v. Capital One Financial Corp., 2012 WL 1080127 (E.D.Pa. 2012), Judge Rufe followed Saunders and Gorman to hold that a furnisher who fails, on re-investigation, to mark an account as ‘disputed’ can violate FCRA. In Gorman v. Wolpoff & Abramson, LLP, the Ninth Circuit found the reasoning in Saunders persuasive, holding that a furnisher's failure to report that… Read More
In Koller v. West Bay Acquisitions, LLC, 2012 WL 1189481 (N.D.Cal. 2012), Judge Breyer held that vague references to ‘further action’ in the collection context could be interpreted by the least sophisticated consumer as threats to make false credit reporting.Yes, that’s what he held. Section 1692e(5) prohibits “threat[s] to take any action that cannot legally be taken or that… Read More
In Williams v. Emergency Groups' Office, 2012 WL 1032700 (2012), the Court of Appeal affirmed, in an unpublished decision, the trial court’s denial of class certification under the Rosenthal Act for alleged infirmities in the collection of medical bills.The Court of Appeal found, in part, that the Plaintiffs’ class definition was too broad because it necessarily would have included… Read More
In Medrazo v. Honda of North Hollywood, 2012 WL 1021692 (2012), the California Court of Appeal reversed a trial court’s finding that a Plaintiff had no UCL standing against a motorcycle dealer because the motorcycle did not have a ‘hanger-tag’ on the handlebars – loosely, the motorcycle equivalent of a “Monrone sticker” -- under Vehicle Code section 11712.5 and 24014.… Read More
In Perez v. Gordon & Wong Law Group, P.C., 2012 WL 1029425 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to a debt collector’s affirmative defenses, and addressed what affirmative defenses are available to an FDCPA/Rosenthal Act claim. Next, the parties dispute the scope of defenses available to Defendants under the FDCPA. Plaintiff argues that all of Defendants' affirmative defenses, except for… Read More
In Hernandez v. Guglielmo, 2012 WL 993676 (D.Nev. 2012), Judge George followed Camacho: Neither the Ninth Circuit, nor apparently any other circuit, has directly addressed the issue of whether a debt collector violates § 1692g if the debt collector does not specifically inform the consumer that the consumer's written notification or request pursuant to subsection (a)(4) or (a)(5) initiates the… Read More
In Scott v. Kelkris Associates, Inc., 2012 WL 996578 (E.D.Cal. 2012), Judge Shubb found that improper service of a state-court debt collection suit did not give rise to a seldom-pleaded Rosenthal Act violation. The Rosenthal Act provides that “[n]o debt collector shall collect or attempt to collect a consumer debt by means of judicial proceedings when the debt collector… Read More
SANCHEZ v. VALENCIA HOLDING COMPANY Case: S199119, Supreme Court of California Date (YYYY-MM-DD): 2012-03-21 Event Description: Petition for review granted Notes: Cantil-Sakauye, C.J., Kennard, Baxter, Chin, Corrigan, and Liu, JJ. Read More
In Soppet v. Enhanced Recovery, Co. 2011 WL 3704681 (N.D. Ill. 2011), Judge Kennelly held a debt collector liable under the TCPA where the original owner of the cellular telephone consented to be called on their cell phone. When the cell number was transferred to another owner, however, the new owner began to receive calls, and sued under the TCPA. … Read More
