In Pintos v. Pacific Creditors Ass'n, 2011 WL 3880411 (N.D.Cal. 2011), Judge Wilken addressed Plaintiff’s summary judgment on her claim alleging a negligent violation of FCRA. The procedural history is as follows: In its original motion for summary judgment, PCA asserted that, by obtaining Plaintiff's credit report to collect on the deficiency, it did so in connection with the… Read More
In Monahan v. NRA Group L.L.C., 2011 WL 3901877 (D.Conn. 2011), Judge Hall found that a debt collector’s statements that collections would continue were not oppressive to the debtor: Section 1692d is meant to protect debtors from oppressive and outrageous conduct, but not from every negative consequence of debt collection. See Bieber v. Assoc. Collection Servs., Inc., 631 F… Read More
In Charvat v. NMP, LLC, --- F.3d ----, 2011 WL 3805618 (6th Cir. 2011), the Court of Appeals held that a TCPA plaintiff can not recover multiple damages on a per call basis for the same harm under the TCPA, but can recover multiple damages on a per call basis when the subsections sued on target different harms. Charvat… Read More
In Lyon v. Chase Bank USA, N.A., --- F.3d ----, 2011 WL 3805641 (9th Cir. 2011), the Court of Appeals addressed the penalties available under the Fair Credit Billing Act. The Court of Appeals explained the factual and procedural history as follows: This case originated with a misunderstanding regarding a $645 charge on the credit-card bill of Appellant Barbee… Read More
In Baker v. Antwerpen Motorcars Ltd., 2011 WL 3740852 (D.Md. 2011), the plaintiff sued an automobile dealer for various state and federal claims based on the failure to disclose that cars sold to them had been used as short-term rentals. Judge Quarles denied an automobile dealer’s petition to arbitrate where the Arbitration Agreement was not contained in the RISC, but… Read More
In Gertz v. Toyota Motor Corp., 2011 WL 3681647 (C.D.Cal. 2011), Judge Guttierrez granted an automobile manufacturer’s motion to dismiss an express warranty claim on the basis that what Plaintiff’s really were alleging was a product defect, which was mutually exclusive from the warranty claim. The claim arose from allegations that Prius’ fuel tanks contract in cold weather such that… Read More
In Cannon v. Spokane Merchants Ass'n, 2011 WL 3754697 (E.D.Wash. 2011), Judge Suko found an absence of federal jurisdiction under the Rooker-Feldman doctrine to hear Plaintiff’s FDCPA claim based on the manner in which the debt collector had obtained the underlying state court judgment on the debt. The Ninth Circuit has since held that Rooker–Feldman does still apply to… Read More
In Gauci v. Citi Mortg., 2011 WL 3652589 (C.D. Cal. 2011), Judge Wright held that FCRA does not allow for injunctive relief: TransUnion argues that Plaintiff's third claim should be dismissed because equitable relief is not a remedy available to private parties under the FCRA. (Mot. at 4–5.) The Court agrees with TransUnion. District courts in the Ninth Circuit… Read More
In Branco v. Credit Collection Services Inc., 2011 WL 3684503 (E.D.Cal. 2011), Judge Damrell ruled on a number FDPCA/Rosenthal Act claims. The highlights related to the number of calls relevant to a harassment claim and to the standard applicable to proof of ‘actual damages’ under the Rosenthal Act. As to the harassment claim, Judge Damrell held that: In the… Read More
See Frydman v. Portfolio Recovery Associates (N.D. Ill. 2011) 2011 WL 2560221. Read More
In Griffith v. Consumer Portfolio Serv., Inc., 2011 WL 3609012 (N.D.Ill. 2011), Judge Grady denied an automobile finance company’s motion for summary judgment on the sole issue of whether it’s dialing system was an ADAD within the meaning of the TCPA. The finance company’s system was described as follows: The named plaintiffs in this case, Roslyn Griffith and Jerret… Read More
In Griffiths v. Sentry Credit, here, Judge Aitken found no intent to harass under FDCPA for 2 answered calls and 12 unanswered calls to the debtor. Read More
As part of the Federal Trade Commission’s systematic review of all FTC rules and guides, the agency is seeking public comment on its Rules and guidance regarding product warranties under the Magnuson-Moss Warranty Act. The agency is seeking comment on the FTC’s Interpretations of the Magnuson-Moss Warranty Act, the FTC’s Guides for the Advertising of Warranties and Guarantees, and three… Read More
In Moriarity v. Henriques, 2011 WL 3568435 (E.D.Cal. 2011), Judge Thurston found that an in pro per debtor could state a claim against a law firm under the Rosenthal Act, but not against its individual attorneys, explaining: Notably, the RFDCPA excludes attorneys from the definition of “debt collectors” while the FDCPA does not. Compare Cal. Civ.Code § 1788.2(c) ( “the term ...… Read More
In Carr v. Asset Acceptance, LLC, 2011 WL 3568338 (E.D.Cal. 2011), Judge O'Neill protected a debt collector from a UCL/Malicious Prosecution lawsuit deriving from rather uncomplicated facts. AA was a debt buyer who retained a law firm, FFG, to collect on a charged off account. FFG sued. When the debtor propounded discovery asking for the factual basis of the debt, FFG… Read More
In Mims v. Global Credit and Collection Corp., --- F.Supp.2d ----, 2011 WL 3586056 (S.D.Fla. 2011), Judge Altonaga held that a debt collector could not avail itself of the Arbitration clause in a credit card agreement between the debtor and the original creditor. This case arises from Global's attempt to collect a debt allegedly owed by Plaintiff under a… Read More
The OCC issued proposed disclosure regulations for national banks, here, regarding debt cancellation agreement. The proposed regulation requires national banks to disclose information about a Debt Cancellation Contract (DCC) or Debt Suspension Agreement (DSA). The short form disclosure usually is made orally and is issued at the time the bank firsts solicits the purchase of a contract. The long form disclosure… Read More
In Cruz v. Cingular Wireless, here, the Court of Appeals for the Eleventh Circuit followed Concepcion in affirming a petition to arbitrate notwithstanding the existence of the class action waiver in the arbitration agreement. Cruz involved the following facts. The Plaintiff class had signed a cell phone contract, which contained an arbitration clause with a class action waiver. Plaintiff filed a… Read More
In New v. CitiFinancial Auto Credit, Inc., 2011 WL 3503128 (M.D.Ala. 2011), Judge Watkins found that a consumer’s delivery of a vehicle to a dealer on consignment extinguished the consumer’s ownership interest in the vehicle, depriving the consumer of any rights to the vehicle – or against the consumer’s finance company – when the consignment dealer failed to pay off… Read More
In Aguayo v. U.S. Bank, --- F.3d ----, 2011 WL 3250465 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit held that the National Bank Act did not pre-empt the Rees-Levering Automobile Sales Finance Act as to disclosures required in Notice of Intent to Dispose ("NOI") letters. The Court of Appeals explained: Despite all the foregoing, U.S. Bank insists… Read More
