Consumer Finance

In Sterling v. Mercantile Adjustment Bureau, LLC, 2011 WL 4915813 (W.D.N.Y. 2011), Judge Arcara held that a TCPA plaintiff who refused to plead the cellular telephone number at issue in the Complaint still stated a claim, and survived a Rule 9 Motion for More Definite Statement.  Judge Arcara stated the factual background as follows:    This case concerns allegations that… Read More

It's not an auto finance case, as it involves the CLRA and enforcement of an arbitration clause post-Concepcion, and both issues arise in automobile and personal property finance, I'm reporting on it for my readers.    In Khan v. Orkin Exterminating Co., Inc., 2011 WL 4853365 (N.D.Cal. 2011), Judge Armstrong held that Concepcion preempted required enforcement of an arbitration clause… Read More

Contrasting with Judge Nguyen's recent decision in Greenberg v. Hunt and Henriques, 2011 WL 4639833 (C.D.Cal. 2011), Judge Thurston in Moriarity v. Henriques, 2011 WL 4769270 (E.D.Cal. 2011) allowed an in pro per plaintiff to proceed against a debt collection law firm under the FDCPA and Rosenthal Act for filing and proceeding to default judgment in a state court collection… Read More

In Dudley v. Powell Law Office, P.C., 2011 WL 4544632 (W.D.Wash. 2011), Judge Leighton expanded on the Arteaga holding that one-call-per-day is not too much, saying that the FDCPA “does not even prevent a collector from calling multiple times in a week, or even in a day.”    Crystal Dudley owes a debt and acknowledges that the debt is owed.… Read More

In Greenberg v. Hunt and Henriques, 2011 WL 4639833 (C.D.Cal. 2011) Judge Nguyen found a consumer collaterally estopped from pursuing an FDCPA case in federal court based on the improper filing and prosecution to judgment of a state court collection action.  The district court found that the plaintiff was collaterally estopped to challenge the state court action, and that the… Read More

In Corby v. American Exp. Co., 2011 WL 4625719 (C.D.Cal. 2011), Judge Wright found that, under Nelson, a consumer can only recover under FCRA for a section 1681s-2(b) claim – meaning, the consumer must first dispute the claim with the credit reporting agency.  Judge Wright as a corollary therefore held that a consumer can not recover for wrongful or inaccurate… Read More

In Vester v. Asset Acceptance, L.L.C., 2011 WL 4591948 (D.Colo. 2011), Judge Krieger was asked to reconsider an FDCPA ruling adverse to the consumer on the basis that the 9th Circuit’s decision in McCullough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir.2011) and its holding regarding the evidentiary value of generic credit card agreements to prove-up a… Read More

On October 7, the Governor signed AB 238, which amends ASFA on the remedies available for failing to itemize license and registration fees in violation of ASFA.  The so-called 'lumping' cases had become a cottage industry for some members of the plaintiff's bar.  ASFA regulates motor vehicle conditional sale contracts, and, among other things, requires a person selling or leasing a motor… Read More

In Shapiro v. Professional Collection Consultants, 2011 WL 4500114 (C.D.Cal. 2011), Judge Wright discussed the pleading standards necessary to state a claim against a debt collector’s principal/owner liable for the actions of the business:   With respect to Hopp, the parties dispute as to whether Hopp can be held liable pursuant to the FDCPA as PCC's owner. District courts have… Read More

In Quinones v. Chase Bank USA, N.A., 2011 WL 4498985 (S.D.Cal. 2011), Judge Battaglia addressed a rather complicated factual pattern relating to whether a debt collector improperly collected a debt from the father or the son.  In addressing the debt collector’s motion for summary judgment, Judge Battaglia overruled Plaintiff’s objections to the debt collector’s custodian of records declaration:    Plaintiffs… Read More

In Seeley v. Nevada Ass'n Services, Inc., 2011 WL 4470840 (D.Nev. 2011), Judge Navarro held that the threat of a homeowners association lien being placed before the expiration of the 30-day validation expired overshadowed the consumer’s rights, constituting an FDCPA violation.  Judge Navarro explained:    Nevertheless, here, both the form and the substance of the letter overshadowed the required notice.… Read More

A copy of the new legislation can be found here.   ACA International, the association of credit and collection professionals, issued the following press release regarding the legislation: ACA International, the association of credit and collection professionals, proudly supports today’s introduction of the Mobile Informational Call Act of 2011, and the leadership of its authors, Congressmen Lee Terry (R-NE), Edolphus Towns… Read More

In Meyer v. T-Mobile USA Inc., 2011 WL 4434810 (N.D.Cal. 2011), Judge Breyer followed Concepcion and enforced an arbitration provision in T-Mobile’s contract.  As to Concepcion, Judge Meyer enforced the arbitration clause and class-action waiver, explaining:   Plaintiff's argument is flawed both factually and legally. First, the arbitration agreement is not governed only by California law. See Baca Decl. (dkt.17)… Read More

In Gonzales v. Arrow Financial Services, LLC, --- F.3d ----, 2011 WL 4430844 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit found that a debt collector’s dunning letters violated the FDCPA, and that recovery could be awarded under both the Rosenthal Act and the FDCPA.    In 2002, Arrow purchased a portfolio of debts owed to health… Read More

In re White, 2011 WL 4368390 (Bkrtcy. D. Dist. Col. 2011), Judge Teel held that an automobile dealer could not obtain dismissal of a customer’s bankruptcy because the customer was concealing the vehicle from the dealer to avoid repossession.  Nor, Judge Teel held, could the dealer obtain a turn-over order from the bankruptcy court.  Judge Teel explained:    Wilson Powell… Read More

In Zimmerman v. Portfolio Recovery Associates, LLC. --- F.R.D. ----, 2011 WL 4349355 (S.D.N.Y. 2011), Judge Gardephe found a debt collector’s ‘Pre-suit ackage” to violate the FDCPA because it simulated documents authorized by a Court, and certified a class action. The “Pre-Suit Package” was described as follows:   Enclosed please find a copy of the lawsuit our local counsel in… Read More

In Grant v. Capital Management Services, L.P., 2011 WL 3874877 (9th Cir. 2011), the Court of Appeals held that the District Court erred in the quantum of proof it required the Defendant to demonstrate in removing a TCPA case under CAFA.    Because neither the size of the proposed class nor the total amount in controversy was apparent from the… Read More

In Boggio v. USAA Federal Sav. Bank, 2011 WL 3876525 (S.D.Ohio 2011), Judge Weber found a credit union’s re-investigation reasonable under FCRA where the Plaintiff claimed that the vehicle purchase contract on which he was a co-buyer was procured without his consent, explaining:   “[D]istrict courts that have considered the issue have consistently recognized that the creditor's investigation must be… Read More

In Marshall v. Bonded Adjustment Co., 2011 WL 3882284 (E.D.Wash. 2011), Judge Peterson granted a protective order against discovery targeted towards an FDCPA defendant’s net worth in an FDCPA class action – until a class was actually certified.   Bonded argues that the court should issue a protective order preventing discovery of Bonded's net worth information unless and until a… Read More

In Joyce v. Ford Motor Co., --- Cal.Rptr.3d ----, 2011 WL 3891871 (2011), the California Court of Appeal found that a truck purchased for commercial purposes (notwithstanding identification on the RISC to the contrary) was protected by the express warranty provisions of the Song-Beverly Act because the vehicle weighed less than 10,000 pounds – even though the vehicle was ‘rated’… Read More