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
In Perry v. Drivehere.com, Inc., 2011 WL 3204818 (E.D.Pa. 2011), Judge Joyner found that a plaintiff stated a claim in an auto finance transaction under the Credit Repair Organizations Act due to advertisements and a close connection to a CRO. According to the allegations of the Amended Complaint, Plaintiff, Brittani Perry, entered into a Lease agreement with Peoples Commerce, Inc. to lease… Read More
In Clements v. HSBC Auto Finance, Inc., 2011 WL 2976558 (S.D.W.Va. 2011), Judge Berger rendered an award based largely on statutory penalties under the West Virginia state-law version of the FDCPA. Upon the following facts, the Court awarded $5,000 in compensatory damages. On August 12, 2006, Defendant loaned Plaintiffs, Mr. and Mrs. Clements, $16,252.92, to be paid over seventy-two… Read More
In SimmsParris v. Countrywide Financial Corp., --- F.3d ----, 2011 WL 3196079 (3d Cir. 2011), the Court of Appeals for the Third Circuit affirmed FCRA’s statutory framework that a consumer must first dispute a report with the CRA in order to maintain a cause of action under 15 U.S.C. § 1681s–2(b). In the present case, SimmsParris did not comply… Read More
In Aho v. AmeriCredit Financial Services, Inc., 2011 WL 3047630 (S.D.Cal. 2011), Judge Sabraw found that Juarez v. Arcadia Financial, Ltd., 152 Cal.App.4th 889, 912, 61 Cal.Rptr.3d 382 (2007), and its holding regarding post-repossession NOIs applied to letters mailed to classmembers before Juarez was issued. Defendant argues Juarez should apply prospectively only, and therefore any member of the class… Read More
In Mission Viejo Emergency Medical Associates v. Beta Healthcare Group___ Cal.App.4th ___ (2011), the Court of Appeal reversed an order denying a motion to compel arbitration in a non-class-action case. As to Concepcion,, the Court of Appeal stated: We invited the parties to provide their comments on the recent United States Supreme Court case, AT&T Mobility LLC v. Concepcion (2011)… Read More
In Unangst v. Evans Law Associates, P.C., --- F.Supp.2d ----, 2011 WL 2855318 (N.D.N.Y., 2011), Judge Sharpe declined to exercise jurisdiction over the debt collection counter-claim in a pending FDCPA action, explaining: While not directly ruling on the issue, the court notes Unangst's argument and finds persuasive the line of cases which have held that even if supplemental jurisdiction were found, there… Read More
In Poulin v. Balise Auto Sales Inc., 2011 WL 2937210 (2d Cir. 2011), the Court of Appeals for the Second Circuit held that TILA is a disclosure statute, not a fair pricing law. The facts of the case were as follows: Balise operates car dealerships in Connecticut, Massachusetts, and Rhode Island, and advertises itself as a business that caters to the needs… Read More
In Hunt v. Sallie Mae, Inc., 2011 WL 2847428 (E.D.Mich. 2011), Judge Zatkoff held that the HEA pre-empted Michigan’s state law debt collection statutes, explaining: Defendant contends that Plaintiff's state-law claims fail to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) because they are preempted by the HEA. Defendant asserts that the HEA requires it to make diligent efforts to… Read More
In Desai v. ADT Sec. Services, Inc., 2011 WL 2837435 (N.D.Ill. 2011), Judge Buklow held that the TCPA can impose respondeat superior liability. First, ADT argues that it can be held liable only if it “made” or “initiated” the calls in question. As ADT points out, the TCPA provisions invoked by plaintiffs make it unlawful (subject to exceptions not… Read More
The FTC issued a staff report, that compiles and updates the agency’s guidance on the Fair Credit Reporting Act (FCRA), the 1970 law designed to protect the privacy of credit report information and ensure that the information supplied by credit reporting agencies is as accurate as possible. A credit report contains information about a consumer’s personal and credit characteristics, character,… Read More
In First Nat. Collection Bureau, Inc. v. Walker, --- S.W.3d ----, 2011 WL 2716778 (Tex. App. 2011), the Texas Court of Appeal affirmed a $147,000 jury verdict against a debt collector based on willful violations of the TCPA. The facts were as follows: Walker filed this lawsuit on June 30, 2008. In her live pleading, Walker contended FNCB made calls… Read More
In Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., --- A.3d ----, 2011 WL 2793214 (N.J.Super.A.D. 2011), the New Jersey Court of Appeal affirmed denial of a TCPA class action in a junk fax case, after surveying the dozens state and federal decisions on TCPA class certification. The Court of Appeal explained: While no New Jersey case has been… Read More
In Anderson v. AFNI, Inc., 2011 WL 1808779 (E.D. Pa. 2011), the Court held in a landline case, rejecting Leyse, holding that § 227(b)(3) grants standing to any “person or entity,” and therefore any “called party” has standing under the statute, including wrong number calls. Read More
In Smith v. EVB, 2011 WL 2689061 (4th Cir. 2011), the Court of Appeals found a mixed-use commercial/consumer debt to possibly be subject to the FDCPA. The loan transactions were as follows: According to Smith, the purpose of the 2004 loan was the purchase and ownership of Smith's per-sonal residence (“the Wilton House”). Smith con-tends that he created Piedmont for the sole… Read More
In Garrett v. Ragle Dental Laboratory, Inc., 2011 WL 2637227 (N.D.Ill. 2011), Judge Buklo held that since the TCPA arises under federal law, federal law controls whether indemnification arise. In the absence of Congressional action providing an indemnity right, there is no indemnity right for TCPA claims. Ragle points out that no court has specifically held that the TCPA… Read More
In Estrella v. Freedom Financial, 2011 WL 2633643 (N.D.Cal. 2011), Judge Illston granted a petition to arbitrate following 27 months of class action litigation. Even though the Court had granted class certification and notice had been sent to the classmembers, Judge Illston followed Concepcion, and found no waiver of the right to arbitrate. In Concepcion, the Supreme Court said… Read More
The FRB issued a proposed rule under Reg B that car dealers need not comply with certain data collection requirements in Dodd-Frank until the FRB issues final regulations. Dodd-Frank amended ECOA to require creditors to collect and report information concerning credit applications made by women-owned or minority-owned businesses and small businesses. Public comment on the proposed rules must be submitted by… Read More
In Ford Motor Credit Company v. Calandra, --- A.3d ----, 2011 WL 2566076 (N.J.Super.A.D. 2011), the New Jersey Court affirmed summary judgment in favor of a vehicle finance company on a class action claim alleging that the finance company could not treat defaulting lessors different from non-defaulting lessors by charging disposition charges in connection with selling a leased vehicle in… Read More
In Martinez v. CACH, LLC, 2011 WL 2560251 (S.D.Cal. 2011), Judge Sabraw rejected a debt collector’s Rooker-Feldman argument. Further, Judge Sabraw rejected the argument that a Rule 68 offer mooted the class-action proceedings because the net worth requirement of a class-action under the FDCPA was not met due to alter ego allegations. Plaintiff is alleged to have incurred debt… Read More
