Consumer Finance

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

In Rodriguez v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 211511 (W.D.Wash. 2012), Judge Martinez held that a debt collector’s claim for ‘reverse attorneys’ fees’ arising from the debtor’s bad-faith filing of an FDCPA claim must be brought as an attorney fee motion, not as a separate counter-claim.    A few courts have allowed § 1692(k)(a)(3) counterclaims. See… Read More

This may be the only case I’ve seen on this subject.  Judge Davis addressed the timing of depositing post-dated checks under the FDCPA in Winter v. Messerli & Kramer, P.A. 2012 WL 186569 (D.Minn. 2012).  The facts were as follows.  MK asserts that on June 30, 2010, Plaintiff contacted MK and spoke with defendant Ashley and requested that he be… Read More

To quote the Church Lady: "Well isn't that special".  The Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) have signed an agreement to coordinate efforts to protect consumers and avoid duplication of federal law enforcement and regulatory efforts. “The FTC has always been committed to protecting consumers and legitimate companies from bad actors in the financial marketplace,”… Read More

In Wisdom v. Wells Fargo Bank NA, 2012 WL 170900 (D.Ariz. 2012), Judge Snow held that FCRA does not authorize recover for commercial losses.    The FCRA defines a “consumer” as “an individual,” 15 U.S.C. § 1681a(c), and provides for the recovery of “any actual damages sustained by the consumer.” 15 U.S.C. § 1681 o(a)(1). It does not provide for… Read More

In Howard v. RJF Financial, LLC, 2012 WL 170904 (D.Ariz. 2012), Judge Snow held that the Rooker-Feldman ­doctrine prohibits a federal court from re-considering under the FDCPA a debt collector’s filing of a state court collection action on a debt that otherwise would have been barred by the applicable statute of limitations on such debt.   There is no issue… Read More

In Tarrant v. Northland Group, Inc., 2012 WL 140431 (M.D.Tenn. 2012), Judge Trauger found no telephonic harassment under the FDCPA where the debt collector tried to reach the consumer 39 times, but reached her only twice.      In determining whether Northland's “calls amount to harassment, annoyance, or abuse, the volume of calls must be examined along with the pattern… Read More

In Mitchem v. Illinois Collection Services, Inc., here, the District Court granted Summary Judgment to a debt collector under the TCPA, finding that the debtor consented to receive calls on his cell phone by providing that number to the provider. Read More

In Ridley v. Union Bank, N.A., 2012 WL 160046 (S.D.Cal. 2012), Judge Sabraw rejected the argument that a defendant’s compliance with California’s autodialer law (PUC section 2872) exempted it from compliance with the TCPA.    Defendant argues Plaintiff has no private right of action under the TCPA for the alleged violations, and therefore cannot state a claim. The TCPA provides,… Read More

In Scott v. Kelkris Associates, Inc., 2012 WL 161415 (E.D.Cal. 2012), Judge Shubb granted summary judgment to a debt collector on FDCPA and Rosenthal Act claims where the debtor claimed that the debt collector’s substitution service of process relating to a state-court collection action was invalid.  The Court found no unconscionable practices under the FDCPA, and imposed an intent element… Read More

In Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221 (N.D.Cal. 2012), Judge Conti imposed the higher Iqbal/Twombly pleading standards to a debt collector’s pleading affirmative defenses.    The parties dispute which standard should apply to the instant motion. Plaintiffs urge this Court to apply the heightened “plausibility” pleading standard that some district courts have derived from the Supreme… Read More

In Bautista v. Hunt & Henriques, 2012 WL 160252 (N.D.Cal. 2012), Judge Spero found a telephonic harassment claim too remote from litigation to trigger protection under California’s anti-SLAPP statute, explaining:   In Briggs, supra, the California court of appeal explained that “just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are… Read More

In an unpublished decision involving a purportedly defective yacht, the California Court of Appeal held in Andersen v. Pacific Asian Enterprises, Inc., 2012 WL 130473 (Cal.App. 4 Dist. 2012) that the Song-Beverly Act does not afford loss-of-use damages in the absence of actual expenses expended to cover.  The facts were as follows.  In April 2003, Andersen entered into a contract… Read More

In Chavious v. CBE Group, Inc., 2012 WL 113509 (E.D.N.Y. 2011), Judge Seybert granted summary judgment in a call-volume/FDCPA harassment case, finding that the call volume was not excessive in light of Plaintiff’s failure to answer the telephone or to tell the collector to stop calling.      Plaintiff has not established a triable issue of fact in this case.… Read More

The Supreme Court issued the Mims v. Arrow Financial Services decision today.  According to the syllabus, the Supreme Court held: The TCPA’s permissive grant of jurisdiction to state courts does not deprive the U. S. district courts of federal-question jurisdiction over private TCPA suits. Pp. 7–18.  (a) Because federal law creates the right of action and provides the rules of… Read More

Hostility exists with regard to the use of secondary evidence to collect debts.  Remember McCullough, where the Court of Appeals for the Ninth Circuit rejected the claim that secondary evidence of forms containing an attorneys' fees clause was insufficient to justify a claim for attorneys' fees?  Recently, the Missouri Supreme Court held that a debt assignee's secondary testimony was insufficient… Read More

In Silbaugh v. Viking Magazine Services, 2012 WL 76889 (N.D.Ohio 2012), the District Court certified a class under the TCPA related to text-messages sent to cellular telephones.  The facts were as follows.  Plaintiff Andao Silbaugh sued Viking Magazine Services under the TCPA, which prohibits the making of a phone call to a cellular telephone using an automatic telephone dialing system… Read More

In Mazza v. American Honda Motor Co., Inc., --- F.3d ----, 2012 WL 89176 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit reversed certification of a nationwide class against Honda, holding that the consumer protection laws of each state were different, were important, and should be applied to each of their own residents’ claims.     Honda… Read More

In Dunkinson v. Citigroup Inc., 2012 WL 32573 (D.N.J. 2012), Judge Sheridan addressed within the context of FCRA, the FCBA, and the FDCPA a situation often foisted upon finance companies:  a divorced husband and wife’s divorce degree allocates financial responsibility to one divorced party, and the non-obligor spouse seeks to bind the finance company to that decree.  Judge Sheridan properly… Read More

In Repossession Specialists, Theodore Van Santen and Americredit, Plaintiffs–Appellants, v. Geico Insurance Company, Defendant–Respondent. Annetta Jackson, Plaintiff, V. Repossession Specialists Inc., Theodore Van Santen And Americredit, Defendants. --- A.3d ----, 2012 Wl 86798 (N.J.Super.A.D. 2012), the New Jersey Court of Appeal held, in a matter of first impression, that an automobile finance company was not entitled to coverage under its… Read More