Consumer Finance

In Engelen v. Erin Capital Management, 2012 WL 12680 (S.D.Cal. 2012), Judge Benitez found applicable the debt collector’s affirmative defense of ‘bona fide’ error when the debt collector continued to collect on an obligation that already had been satisfied due to garnishment.  The facts were as follows.  On December 5, 2007, Erin, with Eltman acting as legal counsel, brought a… Read More

In Blau v. AT & T Mobility, 2012 WL 10546 (N.D.Cal. 2012), Judge Breyer found no unconscionability impediment to enforcing an arbitration clause with a class-action waiver in a class action case filed arising from consumer telephone contracts.   Plaintiffs filed a class action against Defendants relating to AT & T's alleged aggressive marketing of “their service to users of… Read More

In Hylkema v. Associated Credit Service Inc., 2012 WL 13681 (W.D.Wash. 2012), Judge Theiler rejected Plaintiff’s claims against a debt collector where the Plaintiff orally disputed his debt and asserted that the debt collector owed him certain affirmative obligations once he made such a dispute.  The Plaintiff claimed to have experience in the debt collection industry, yet the Court found… Read More

In Townsend v. National Arbitration Forum, Inc., 2012 WL 12736 (C.D.Cal. 2012), Judge Fairbank found that Plaintiffs failed to state a claim under the CLRA for conspiring to “rig” arbitration procedures by forcing consumers to agree to unfair arbitration clauses that disfavor consumers in connection with bank and credit card accounts.     Plaintiff's CLRA claim alleges that had Plaintiff… Read More

In Bailey v. Santander Consumer USA, 2012 WL 37537 (M.D.N.C. 2012), Judge Auld found that a FCRA Plaintiff’s failure to oppose an MSJ filed by a furnisher was, by itself, insufficient grounds to award ‘reverse’ attorneys’ fees against the Plaintiff under FCRA.  Judge Auld explained:    Santander also contends that it is entitled to relief in the form of attorney's… Read More

In Greenwood v. CompuCredit, Corp., here, Justice Scalia today authored an opinion overruling the Court of Appeals for the Ninth Circuits’ refusal to enforce an arbitration clause related to a claim under the Credit Repair Organizations Act.  The syllabus of the Court explained:    Although respondents’ credit card agreement required their claims tobe resolved by binding arbitration, they filed a… Read More

In what may be the largest auto dealer finance case ever tried to jury verdict, Severson & Werson defended Nissan Motor Acceptance Corp. against $250 million in “lender liability” damage claims by a failed auto dealer group and prevailed with a $40 million judgment against the dealer after 5 weeks of trial. Nissan reports that this is the largest judgment it… Read More

In MacPherson v. JPMorgan Chase Bank, N.A., --- F.3d ----, 2011 WL 6450777 (2d Cir. 2011), the Court of Appeals for the Second Circuit held that FCRA pre-empts common law defamation claims arising from false or inaccurate information furnished to a consumer reporting agency.  Macpherson alleged that Chase willfully and maliciously provided false information about his finances to Equifax, a… Read More

In Marx v. General Revenue Corporation, the Court of Appeals for the Tenth Circuit affirmed a district court's ruling after a bench trial that a fax by a debt collector to a debtor's employer to verify employment for purposes of wage garnishment was not a prohibited third party communication under the FDCPA.  The Court of Appeals explained: The facsimile in… Read More

    In Vogel v. Onyx Acceptance Corp., --- P.3d ----, 2011 WL 6316014 (Wyo. 2011), the Wyoming Supreme Court found in favor of an auto finance company and against Wyoming regulators.  The Regulators had claimed that “Onyx violated the WUCCC by charging customers a fee, that was not disclosed when credit was extended, for making payments by telephone or… Read More

In Smith v. Ford Motor Co., 2011 WL 6322200 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit rejected Plaintiffs’ CLRA and UCL class action based on the claim that an automobile manufacturer failed to disclose the risk that ignition locks in its Focus vehicles from model years 2000 through 2006 would fail after the warranty expired. The… Read More

In Reed v. First Premier Bank, 2011 WL 6153100 (D.S.D. 2011), Judge Schreier found for a furnisher against a consumer's claim that the furnisher failed to report the account as disputed.  Judge Schreier explained: A furnisher cannot be held liable under section 1681s–2(b) simply for failing to report that a debt is disputed. Rather, a furnisher may only be liable if the… Read More

In Glen Ellyn Pharmacy, Inc. v. Meda Pharmaceuticals, Inc., 2011 WL 6156800 (N.D.Ill. 2011), Judge Gotschall rejected a TCPA defendant's claim for contribution/indemnity under the TCPA, explaining: Instead, the TCPA itself strongly suggests that Congress never intended to create such a right. For instance, the TCPA contemplates treble damages, see 47 U.S.C. § 227(b)(3), which indicates that Congress had no intent to include… Read More

In Orue v. Ford Motor Service Co., 2011 WL 6176190 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit held that a service contract complied with Song-Beverly because it conferred benefits additional to the Manufacturer’s warranty:    The district court correctly concluded that the service contract sold by Ford did not violate the Song–Beverly Consumer Warranty Act, Cal… Read More

In Fry v. Berks Credit and Collections, Inc., here, the Magistrate found no FDCPA telephonic harassment for 69 phone calls made to Plaintiffs’ home in two months, where there nineteen days during which Defendant placed three calls to Plaintiffs and five other days during which Defendant placed two calls, five days during which only one call was made and 24… Read More

In Reilly v. Ceridian Corp., --- F.3d ----, 2011 WL 6144191 (3rd Cir. 2011), the Court of Appeals for the Third Circuit held that fear of identity theft is not a compensable loss conferring Article III standing litigants in federal court.  The case arose from the following facts.  Ceridian is a payroll processing firm.  To process its commercial business customers'… Read More

In LeFoll v. Key Hyundai of Manchester LLC, 2011 WL 6153171 (D.Conn. 2011), Judge Egington held that a car dealer’s printing malfunction on a class of consumers’ RISCs violated TILA as to both the dealer and the assignee finance company.  The facts were as follows.  On June 30, 2009 plaintiff purchased a Hyundai Sonata pursuant to a retail installment sales… Read More

In Munekiyo v. Capital One Bank, N.A., 2011 WL 6057830 (C.D.Cal. 2011), Judge Snyder addressed Capital One’s use of a debt collection agency to service defaulted accounts, and potential deception in correspondence from Capital One that resulted in the consumer dealing with the third party debt collector.  Plaintiff filed a class action alleging that Plaintiff maintained a credit card account… Read More

 The National Association of Attorneys General submitted a letter brief opposing the Mobile Informational Call Act (HR 3035) that would make amendments to the TCPA.  NAAG HR 3035 letter Read More

In Vasquez v. State Recovery Systems, Inc., 2011 WL 6012326 (E.D. Cal. 2011), Judge Burrell found Plaintiff’s recitation of the legal requirements of the Rosenthal Act and FDCPA insufficient to state a claim under Iqbal/Twombly.    Plaintiff's FAC essentially comprises the following allegations: “Defendant is a debt collector as that term is defined by 15 U.S.C. 1692a(6) and Cal. Civ.Code… Read More