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
In Bourff v. Rubin Lublin, LLC, 2012 WL 851626 (11th Cir. 2012), the Court of Appeals for the Eleventh Circuit held that a collection lawyer collecting on defaulted mortgage debt better dig deep to understand all the permutations and securitizations of the mortgage industry in order to properly identify the “creditor” under the FDCPA. Merely identifying the party who had… Read More
In Smith v. Americredit Financial Services, Inc., 2012 WL 834784 (S.D.Cal. 2012), Judge Sabraw post-Concepcion followed Sanchez in denying enforcement of an arbitration clause in an NOI class action. With respect to the first clause, the Sanchez court found it was one-sided in favor of the seller because the buyer, not the dealer, is more likely to recover an award… Read More
In Salazar v. MFP, Inc., --- F.Supp.2d ----, 2012 WL 762494 (M.D.Fla. 2012), Judge Hernandez-Covington held that a debt collector violated the FDCPA by honoring a cease-and-desist letter on one account but continuing to pursue another account. Plaintiff asserts that Defendant violated this provision by sending her a collection letter on August 31, 2010, after she had sent her cease… Read More
In Lopez v. Professional Collection Consultants, 2012 WL 777497 (C.D.Cal. 2012), Judge Gutierrez found that the Plaintiff stated a claim for harassment under the Rosenthal Act and FDCPA. Plaintiff alleges that Defendant began placing collection calls to Plaintiff in January 2010 for a debt that Defendant claimed was owed to AT & T. SAC ¶ 11. FN1 Defendant informed Plaintiff… Read More
In Cox v. Community Loans of America, Inc., 2012 WL 773496 (M.D.Ga. 2012), the District Court held that automobile title pawn transactions were “loans” subject to the Military Lending Act, which itself prohibits arbitration enforcement. Accordingly, the petition to enforce arbitration in a class action alleging that the loan transactions were void at inception was denied because the MLA prohibits… Read More
In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More
In Rodriguez v. Cavalry Portfolio Services, LLC, 2012 WL 726474 (S.D.Cal. 2012), Judge Burns held that a debt collector, under the circumstances, has a ‘permissible purpose’ under FCRA to request a credit report from a consumer reporting agency: Rodriguez alleges that Cavalry pulled his credit report for an improper purpose. He is wrong. A debt collector may access a consumer's… Read More
In Cruz v. International Collection Corp., --- F.3d ----, 2012 WL 742337 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit found that a debt collector violated the FDCPA by seeking costs and interest that were not allowed under state law. The Court of Appeals explained: Under Nevada law, a debt collector may not collect any interest or fees unless… Read More
In Brewer v. Missouri Title Loans, --- S.W.3d ----, 2012 WL 716878 (Mo. 2012), the Missouri Supreme Court found that Concepcion permitted unconscionability analysis as to an automobile title lender's effort to enforce a class action waiver in an arbitration clause. The Missouri Supreme Court held, in part, that the lender's clause's reservation of self-help remedies -- often the title lender's chief… Read More
In Kilgore v. KeyBank, Nat. Ass'n, --- F.3d ----, 2012 WL 718344 (9th Cir. 2012), the Court of Appeals found that California’s state law Broughton-Cruz exception to arbitration enforcement did not survive Concepcion. The facts were as follows: Plaintiffs are former students of a private helicopter vocational school located in Oakland, California, and operated by Silver State Helicopters, LLC (“SSH”).… Read More
In National Auto. Dealers Ass'n v. F.T.C., --- F.3d ----, 2012 WL 695526 (C.A.D.C. 2012), the NADA’s challenge to the FTC’s “risk-based pricing rules” hit a procedural snag in the D.C. Circuit Court, which found that the matter must first be initiated in the District Court. The Circuit Court described the challenge as follows: In 2003, Congress passed the Fair… Read More
In In re Sanders, 2012 WL 692549 (Bkrtcy.W.D.Tex. 2012), Judge Clark found that an automobile finance company who, following the debtor’s rescission of a reaffirmation agreement, repossessed a vehicle post-discharge based on the ispo facto clause did not violate the automatic stay or discharge injunction. The facts were as follows: On August 10, 2011, the captioned Debtors filed a motion… Read More
In Dunn v. Advanced Credit Recovery Inc., 2012 WL 676350 (S.D.N.Y. 2012), Judge Kott confirmed that the FDCPA penalty is “per lawsuit”, not “per violation”. Judge Kott explained, “Dunn seeks a total of $5,000, asserting entitlement to the maximum statutory damage award of $1,000 for five separate violations. However, the case law limits recovery to $1,000 per action, not per… Read More
In Pimental v. Google Inc., 2012 WL 691784 (N.D.Cal. 2012), Judge Rogers found that Google’s text messages to cellular telephones regarding its “disco” service pleaded facts sufficient to state a claim under the TCPA. Google’s service was described as follows: Text messaging allows cellular telephone subscribers to send and receive short messages, usually limited to 160 or so characters… Read More
In Nevada v. Bank of America Corp., --- F.3d ----, 2012 WL 688552 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a federal statute (the FDCPA) embedded in Nevada’s state law UDAP statutory claim did not raise a ‘substantial federal question’ sufficient to confer federal jurisdiction. Here, the Complaint raises exclusively state law claims.… Read More
In Grant–Hall v. Cavalry Portfolio Services, LLC, 2012 WL 619651 (N.D.Ill. 2012), Judge Feinerman held that a debt collection agency was vicariously liable for the conduct of their attorneys, and that the filing of a defective lawsuit can violate the FDCPA where the filing falsely implies that the debt collector has legal recourse against the debt. The filing of a legally defective… Read More
In Frees v. Pioneer Credit Recovery, Inc., 2012 WL 600785 (S.D.Ohio 2012), Judge Rice found no telephonic harassment for 77 efforts in 8 months. Frees' Amended Verified Complaint alleges that Pioneer “violated 15 U.S.C. 1692d by causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass,” calling… Read More
In Adkins v. Weltman, Weinberg & Reis Co., L.P.A., 2012 WL 604249 (S.D.Ohio 2012), the District Court decided not to follow the FTC interpretation of the FDCPA, and found that garnishment of wages was an ‘action’ subject to the FDCPA venue provisions. Section 1692i of title 15 of the United States Code provides in pertinent part: (a) Venue--… Read More
In Siwulec v. J.M. Adjustment Services, LLC, 2012 WL 666649 (3d Cir. 2012), the Court of Appeals for the Third Circuit found that a Bank’s “door knock” service was subject to the FDCPA, and was not a mere delivery service of letters for the Bank. The allegations were as follows: On about May 10, 2010, Siwulec, a resident of… Read More
