Consumer Finance

In Toney v. Kinsch, 2012 WL 567729 (N.D.Ill. 2012), Judge Chang found no ECOA violation on behalf of an automobile finance company arising from a dealership’s alleged malfeasance when the finance company re-assigned the RISC back to the dealer.   In September 2008, Ethel Toney contracted to buy a 2006 Dodge Charger from a car dealership, and Defendant Capital One… Read More

In Rose v. Asset Acceptance, 2012 WL 603263 (2012), the California First District Court of Appeal affirmed in an unpublished decision a denial of class certification of a claim filed under the Rosenthal Act.  The facts arose from a debt collector’s suit against a debtor arising from her telephone bill purportedly beyond the statute of limitations.  The trial court rejected… Read More

In this case filed originally by Lara Shapiro and taken over by Sergei Lemberg, Judge Mendez denied class cert. in this matter, and the Court of Appeals just heard oral argument on the appeal of the denial of class cert.  The issue addresses not only of whether the mailing of dunning letters as alleged violated the FDCPA, but also whether the… Read More

In Braham v. Automated Accounts, Inc., 2012 WL 554036 (E.D.Wash. 2012), Judge Shea found that a discussion of wage garnishment did not involve threat of an action that cannot legally be taken or that is not intended to be taken in violation of the FDCPA.  Judge Shea included a good discussion of ‘discussion of garnishment’ or ‘discussion of legal process’… Read More

In Meyer v. Portfolio Recovery Associates, LLC, (9th Cir. No. 1156600), the District Court had certified an F.R.C.P. Rule 23(b)(2) injunctive class under the TCPA. (Docket, Appellant's Brief, Appellant's Reply Brief)  The debt collector appealed, and the matter is fully briefed before the Court of Appeals for the Ninth Circuit.  Last week, the federal MDL transferred a number of cases… Read More

In El-Aheidab v. Citibank (South Dakota), N.A., 2012 WL 506473 (N.D.Cal. 2012), Judge Chen carved out an exception from FCRA pre-emption of the UCL that we had fought so hard to win in the Howard v. Blue Ridge Bank case.   Judge Chen found no impediment to maintaining a UCL claim with an embedded CCRAA claim because Gorman had held that… Read More

In Gutierrez v. State Farm Mut. Ins. Co.,  2012 WL 398828 (N.D.Cal. 2012), Judge Davila addressed the rights of a non-contracting spouse to sue under an automobile RISC and under the Rosenthal Act.      Plaintiffs are husband and wife.  Husband purchased a limited edition 2007 Pontiac Solstice (the “vehicle”), financed by defendant finance company.  Husband contracted with Defendant State… Read More

Today, the CFPB issued its Proposed Rule Defining Larger Participants in Certain Consumer Financial Product and Service Markets.  The CFPB explained the background of the Proposed Rule and CFPB's authority for issuing it: The Consumer Financial Protection Act of 2010 (Act)1 established the Bureau of Consumer Financial Protection (Bureau) on July 21, 2010. One of the Bureau’s key responsibilities under… Read More

In Gamby v. Equifax Information Services LLC, 2012 WL 447491 (6th Cir. 2012), the Court of Appeals for the Sixth Circuit found that a debt collector's loss of a lawsuit seeking to collect on the debt ipso facto created FDCPA liability based on the debt collector's previous statements that the the debtor's owed the debt.  Taken together, the plain language of… Read More

The FCC today issued its Final Telemarketing Sales Rule today.  As to debt collection calls, the FCC noted the distinction between land-lines and cellular telephones, as well as affirming that debt collectors can obtain either oral or written consent to call consumers on their cellular telephones using an autodialer: Moreover, while we revise our consent rules to require prior written consent… Read More

In Hagy v. Demers & Adams, LLC,  2012 WL 359577 (S.D.Ohio 2012), Judge Kemp enforced an arbitration clause and referred FDCPA matters arising out of collection on a promissory note to arbitration.      The arbitration agreement here covers “[a]ll disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract....” Each… Read More

In Grant v. Unifund CCR Partners, --- F.Supp.2d ----, 2012 WL 379911 (C.D.Cal. 2012), Judge Snyder granted summary judgment based on the Rooker-Feldman doctrine.  A copy of the decision is here.   The Rooker–Feldman doctrine applies to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court… Read More

In Makreas v. Moore Law Group, A.P.C., 2012 WL 359710 (N.D.Cal. 2012), Judge Chesney found that the Plaintiff stated certain claims against a debt collection attorney, but not against the creditor whose debt the attorney was collecting.  In the context of evaluating a previous Rule 68 offer, the District Court confirmed that the Rosenthal Act and FDCPA penalties are “per… Read More

In Seeley v. Nevada Ass'n Services, Inc., 2012 WL 295250 (D.Nev. 2012), Judge Navarro found that a 30-day validation letter contained ‘overshadowing’ language in potential violation of the FDPCA.  The offending language, contrasted against the 30-day validation period, was as follows:   If you want to resolve this matter before a Notice of Delinquent Assessment Lien is recorded and sent… Read More

In Cavero v. Franklin Collection Service, Inc. , 2012 WL 279448 (S.D.Fla. 2012), Judge Altonaga granted summary judgment to a debt collector on a TCPA claim arising out of calls to a cellular telephone by means of an autodialer.    To demonstrate a violation of the TCPA, Cavero must show Franklin called his cell phone, without his “prior express consent,” using… Read More

In Aho v. AmeriCredit Financial Services, Inc., 2012 WL 273780 (S.D.Cal. 2012), Judge Sabraw granted summary judgment to the Plaintiffs on their claims regarding post-repossession letters under Juarez.  As to the claim under the ASFA, Judge Sabraw held:   Accordingly, that the information may be available to the consumer does not relieve Defendant of its obligation to include that information… Read More

In Ali v. Capital One, 2012 WL 260023 (E.D.Cal. 2012), Judge O’Neill explained the unsettled area of FCRA pre-emption of common law defamation claims:    Plaintiff's defamation claim is based on the allegation that defendant furnished inaccurate information to consumer reporting agencies knowing that the information was false. Because her claim is based on the furnishment of information to a… Read More

In Medina v. Performance Automotive Group, Inc.,  2012 WL 219308 (E.D.Cal. 2012), Judge Karlton remanded to state court a class action alleging that a car dealer illegally ‘backdated’ retail installment contracts.  The defendant finance company had removed the matter to federal court, and then moved to compel arbitration (and the class action waiver) under Concepcion.   Judge Karlton found that neither… Read More

In Santos v. LVNV Funding, LLC, 2012 WL 216398 (N.D.Cal. 2012), Judge Davila found that an FDCPA claim arising out of a debt collector’s failure to honor a settlement agreement in an underlying debt collection action was not protected by the Rooker-Feldman doctrine or the litigation privilege.  The facts were as follows.  Santos became delinquent on a consumer credit card… Read More

The FCC announced its intention to address TCPA regulations at its open meeting scheduled for February 15, 2012. The Commission will consider a Report and Order that protects consumers from unwanted autodialed or prerecorded calls (“robocalls”) by adopting rules that ensure consumers have given prior express consent before receiving robocalls, can easily opt out of further robocalls, and will experience “abandoned” telemarketing calls only… Read More