Consumer Finance

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

In Sixto Ramirez, Plaintiff–Appellant, v. National Cooperative Bank -- N.Y.S.2d ----, 2011 WL 6032399 (N.Y.A.D. 1 Dept. 2011), Judge Catterson found an assignee liable for common law fraud claims arising out of an automobile sale under the FTC and NY Holder Rules: In its decision and order dated August 3, 2010, the motion court granted NCB's motion. While not explicitly… Read More

A copy of the decision is here. Read More

On November 18, 2011, the California Court of Appeal for the Second District ordered re-hearing on the Sanchez matter, apparently denying the Dealer's Petition but granting re-hearing on his own motion.  The docket is set forth below. 11/08/2011 Rehearing petition filed.   by aplt Valencia Holding Co. 11/10/2011 Letter sent to counsel re:   The court requests that each party… Read More

In Mazzaferro v. Stanaland, 2011 WL 5444323 (N.D.Cal. 2011), Judge Illston held that an attorney fee award in an underlying case that was reduced to judgment and abstract was not a ‘consumer debt’ under the FDCPA because the judgment did not arise out of a ‘consensual’ transaction.  Judge Illston explained:   Defendant contends that plaintiffs have failed to state a… Read More

In Rydell v. Servco Auto Windward, 2011 WL 5506088 (D.Hawai'i 2011), Judge Seabright found that a car dealer did not violate FCRA in a spot-delivery situation by making multiple inquiries on a consumer’s credit report or by obtaining a credit report from all-three credit reporting agencies.  Judge Seabright explained:   The scope of Servco's “permissible purpose” extends beyond accessing a… Read More

In Roberts v. El Cajon Motors, Inc., --- Cal.Rptr.3d ----, 2011 WL 5343692 (2011), the California Court of Appeal found that an automobile dealer waived enforcement of an arbitration clause in the Law Printing RISC because it has substantially participated in the litigation as well as attempting outside the litigation to reach individual settlements directly with potential classmembers.  The Court… Read More

In Aho v. Americredit Financial Services, Inc., --- F.R.D. ----, 2011 WL 5401799 (S.D.Cal. 2011), Judge Sabraw certified an NOI class under the UCL and ASFA for allegedly faulty post-repossession letters ("NOIs") pursuant to FRCP 23(b)(2), but refused to do so under the Rosenthal Act.  Judge Sabraw found the ‘damages’ sought under the Rosenthal Act were not incidental to the… Read More

The Subcommittee on Communications and Technology held a hearing on Friday, November 4, 2011, at 9:00 a.m. in 2123 Rayburn House Office Building on “H.R. 3035, The Mobile Informational Call Act of 2011.”  The link below includes a video of the testimony, a Background Memo and an Opening statement from Communications and Technology Subcommittee Chairman Greg Walden. Read More

In Moscona v. California Business Bureau, Inc., 2011 WL 5085522 (S.D.Cal. 2011), Judge Benitez granted summary judgment in favor of a debtor and against a debt collection agency on a number claims arising out of collection and reporting on a debt. Judge Benitez held that the debt collector’s reporting of the Account to the credit reporting agencies before it verified… Read More

In Daniel v. West Asset Management, Inc., 2011 WL 5142980 (E.D.Mich. 2011), Judge Cleland granted summary judgment against a debtor on the debtor’s FDCPA harassment claim:    Defendant argues that Plaintiff has failed to raise a genuine issue for trial because “Plaintiff has offered no indication on the number of calls, the time of calls, the content of any conversations… Read More

In Coleman v. Credit Management, here, Judge Lynn held that section 1692c of the FDCPA – related to communications with consumers at inconvenient times or places – does not apply to non-consumers.   Even though §1692d – related to harassing any person -- does apply to non-consumers, the section is not violated where the debt collector only makes fourteen phone calls in… Read More

The Supreme Court will resolve whether federal courts have jurisdiction to hear cases brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). The circuit courts are split on whether jurisdiction exists for private TCPA claims.  Mims v. Arrow Fin. Servs., LLC, 2010 WL 4840430 (11th Cir. Nov. 30, 2010) cert granted Mims v. Arrow Financial Services, LLC, 131 S.Ct.… Read More

In Moore v. Firstsource Advantage, LLC,  2011 WL 4345703 (W.D.N.Y 2011), Judge Skretny held that triable issues of fact on consent and revocation of same prevented granting of summary judgment arising out of calls containing a prerecorded message made to a consumer’s cellular telephone.  As to the issue of consent, Judge Skretny held that consent can be given at any… Read More

In Frausto v. IC System, Inc., 2011 WL 3704249 (N.D.Ill. 2011), Judge Zagel held that a debt collector was entitled to rely on the ‘consent’ obtained by the original creditor to call a consumer on his cellular telephone under the TCPA. The dispositive issue here is the application of the “prior express consent” defense to the facts of this case.… Read More

In Zehala v. American Exp., 2011 WL 4484297 (S.D.Ohio 2011), Judge Watson distinguished between ADAD calls to land lines versus cellular telephones, finding that Plaintiff failed to state a claim as to the former but had properly pleaded a claim as to the latter.    As to land lines, Judge Watson found no claim because an established business relationship existed:… Read More

The Federal Trade Commission will host its third roundtable on November 17, 2011, in Washington, D.C., to gather information on consumers’ experiences in the leasing of motor vehicles at dealerships. The roundtable also will address what has been learned about auto sales, financing and leasing at all of the roundtables; what consumer and business education initiatives would be useful; and… Read More

In Sanchez v. Valencia Holding Co., LLC, 2011 WL 5027488 (2011), the California Court of Appeal found that Concepcion did not eliminate states' rights to address issues of unconcionability in arbitration clauses and, therefore, found that the arbitration clause in a LawPrinting retail installment sales contract for the purchase of an automobile was procedurally and substantively unconscionable.  Sanchez involved a class… Read More

In Lopez v. Professional Collection Consultants, 2011 WL 4964886 (C.D.Cal. 2011), Judge Gutierrez granted a debt collector's Motion to Dismiss a telephonic harassment case, with leave to amend, holding: There are no facts alleged as to the content of the calls. And the confusing statement that Defendant made “up to three [ ] collection calls five [ ] times per week”… Read More

In Giovanniello v. ALM Media, LLC, --- F.3d ----, 2011 WL 4907382 (2d Cir. 2011), the Court of Appeals for the Second Circuit held that the TCPA borrows state-law statutes of limitations because the TCPA permits causes of action only where otherwise permitted by state law.    In sum, while a TCPA diversity action is somewhat unusual in that the… Read More