In Tara v. AFNI, Inc., here, Judge Dalzell held that an identity theft victim has standing to sue a debt collector under the TCPA for calling the victim’s land-line (not the victim’s cell phone) with its autodialer, but found that debt collection calls made to land lines are exempt from the TCPA – whether made to debtors or innocent non-debtors. … Read More
In American Home Services, Inc. v. A Fast Sign Co., Inc., --- S.E.2d ----, 2011 WL 1782083 (Ga.App. 2011), the Georgia Court of Appeal held that the measure of damages under the TCPA (in a fax case) is based on receipt, not sent. In reviewing a $459 million verdict, the Court of Appeal explained: Even assuming—without deciding—that the evidence… Read More
In Donohue v. Nielson, --- P.3d ----, 2011 WL 1642914 (Wash.App. 2011), the Washington Court of Appeal found that successive debt collectors do not need to re-validate the debt; once is enough. The Court of Appeal explained: However, more recent cases have specifically disagreed. See Ditty v. CheckRite, Inc., 973 F.Supp. 1320, 1329 (D.Utah 1997) (“Section 1692g does not… Read More
In Grim v. Safe-Guard Products Intern., LLC, 2011 WL 1246675 (Cal. App. 2011), the California Court of Appeal held, in an unpublished decision, that an RV purchaser could not state a class action under the UCL arising out of the sale of a GAP product because of a lack of uniformity. The facts were as follows: Plaintiff and appellant… Read More
In Young v. Asset Acceptance, LLC, 2011 WL 1766058 (N.D.Tex. 2011), Judge Ramirez found a triable issue of fact as to whether an FDCPA claimant was harassed by telephone in connection with the collection of a debt, explaining: To meet his summary judgment burden, Plaintiff must produce some evidence from which the intent to annoy, abuse, or harass may… Read More
We posted notice of the FTC's Conference on Motor Vehicle Sales and Financing. The FTC posted transcripts from the Conference at Sess 1, Sess. 2, Sess. 3, and Sess. 4. Read More
Severson & Werson analyze the impact of Concepcion in an E-Alert here. Read More
AB 125, the final enrolled version can be found here, was enrolled and presented to the Governor, and signed into law. According to the Assembly Analysis, SB 125 does the following: ANALYSIS : Existing law (1) defines guaranteed automobile protections insurance" to be insurance that covers a vehicle purchaser or lessee for the difference between the actual cash value… Read More
The United States Supreme Court issued its 5-4 opinion in AT&T v. Concepcion today, holding that the Federal Arbitration Act pre-empts California's Discover Bank rule. Justice Scalia authored the opinion, joined by justices Roberts, Kennedy, Thomas, and Alito. Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented. A copy of the opinion can be found here, but the syllabus summarizes the Court's holding as… Read More
In Wells v. Craig & Landreth Cars, Inc., 2011 WL 1542121 (W.D.Ky. 2011), Judge Simpson held that an auto finance company accessing a consumer’s credit for the potential extension of credit did not violate the “permissible purpose” requirement of FCRA when the buyer’s purchase transaction turned out to be a cash-sale and the buyer claimed that he did not authorize… Read More
In Freid v. National Action Financial Services, Inc., Slip Copy, 2011 WL 1547257 (D.N.J. 2011), Judge Chesler denied class certification in an FDCPA claim alleging that debtors were conveyed a false sense of urgency in communications from the debt collectors. Judge Chesler found that secondary evidence of ‘scripts’ from the debt collector did not create uniformity, and questioned whether the… Read More
In Sasscer v. Donnelly, 2011 WL 1522320 (M.D.Pa. 2011), Judge Munley explained what ‘validation’ is required in response to a consumer request under the FDCPA: The Third Circuit, then, has found sufficient a verification that informs the debtor of “the amounts of his debts, the services provided to produce those debts,” and “the dates on which the debts were… Read More
In General Motors LLC v. Bowie, --- So.3d ----, 2011 WL 1485306 (Fla.App. 2011) , the Florida Court of Appeal was called to determine whether a consumer, in pre-litigation settlement discussions regarding a lemon-law vehicle, could hold out for her attorneys’ fees against a manufacturer’s offer of full rescission prior to litigation.The Court of Appeal found no, explaining: Florida's “Lemon… Read More
In HVT, Inc. v. Law, --- A.3d ----, 300 Conn. 623, 2011 WL 1413650 (Conn. 2011), the Connecticut Supreme Court found that vehicle renewal registration fees paid directly to the DMV by lessees under car leases qualify as taxable gross receipts. The sole issue in this appeal is whether vehicle registration renewal fees (renewal fees) paid directly to the department… Read More
In Murphy v. Stephens & Michaels Associates, Inc., 2011 WL 1465761 (S.D.Cal. 2011), Judge Lorenz held that, at the pleading stage, whether a defendant was a “debt collector” was an affirmative defense for which Defendant owed the burden, not Plaintiff’s pleading burden. Plaintiff alleges a factual basis for relief she seeks under the FDCPA and the Rosenthal Act. Defendant argues… Read More
In Valero v. Bryant, LaFayette and Associates, LLC, 2011 WL 1438436 (E.D.Cal. 2011), Judge Austin set forth parameters for recovery of emotional distress damages under the FDCPA/Rosenthal Act within the context of a default prove-up hearing. This Court will apply the California IIED standard. See, Bolton v. Pentagroup Financial Services, LLC., 2009 WL 734038 at *10–11. Under California law, to… Read More
In Caudell v. Financial Credit Network, Inc., 2011 WL 1377643 (E.D.Cal. 2011), Judge O’Neill applied Iqbal/Twombly to find that Plaintiff had not adequately pleaded obscene or profane communications in connection with debt collection, nor did Plaintiff’s allegations of daily telephone calls rise to the level of pleading harassment. 15 U.S.C. § 1692d(2) “was meant to deter offensive language which is… Read More
In Bais Yaakov of Spring Valley v. Peterson's Nelnet, LLC, 2011 WL 1458779 (D.N.J. 2011), Judge Thompson allowed a TCPA class action to proceed in the district court under CAFA. Here, Plaintiff's First Amended Complaint alleges diversity jurisdiction under 28 U.S.C. § 1332(d) o n the grounds that “the matter in controversy concerning the TCPA exceeds t he sum… Read More
In De Dios v. International Realty & Investments, --- F.3d ----, 2011 WL 1346956 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit held that a residential property manager was not a “debt collector” within the meaning of the FDCPA because it did not acquire the debt when in default. The facts were as follows: In 2001,… Read More
In Huertas v. Galaxy Asset Management, --- F.3d ----, 2011 WL 1361568 (3d Cir. 2011), the Court of Appeals for the Third Circuit held that a debt collector can collect on out-of-statute debt, but can not threaten litigation because it has no right to do so: Huertas's FDCPA claim against AMP turns on whether a debt collector may attempt… Read More
