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
In In re Atwood, Slip Copy, 2011 WL 1331974 (Bkrtcy.D.N.M. 2011), Judge Jacobvitz followed Seventh Circuit authority, instead of the Ninth Circuit's decision in Walls, to hold that the Bankruptcy Code did not provide the exclusive remedy for a debt collector’s post-petition conduct violating the automatic stay. Defendants assert that Plaintiff's exclusive remedy for the Defendants' alleged post-petition collection… Read More
On Tuesday, the Federal Trade Commission will host the first in a series of roundtables around the country to gather information on consumers’ experiences when buying, financing, or leasing motor vehicles. The first roundtable will focus on consumer protection issues related to sales and financing of consumer vehicles – cars, SUVs, and light trucks. The event will be held on… Read More
In Landsman & Funk PC v. Skinder-Strauss Associates, --- F.3d ----, 2011 WL 1226371 (3d Cir. 2011), the Court of Appeals for the Third Circuit in a 2-1 split decision joined with other circuits and district courts to find that the TCPA’s exclusive grant of federal question jurisdiction in the state courts did not deprive the federal courts of jurisdiction… Read More
In Versteeg v. Bennett, Deloney & Noyes, P.C., -- F.R.D. – 2011 WL 159805 (D. Wyo. 2011), the Court denied class certification due to an absence of predominance of questions of fact and law common to classmembers, explaining: For Plaintiff's TCPA claims, the Court does not find that “questions of law or fact common to class members predominate over… Read More
In Combs v. NCO Financial Systems, Inc., 2011 WL 1288686 (E.D.Pa. 2011), Judge Yohn affirmed the rule that a creditor, otherwise exempt from the FDCPA, can not be brought under its auspices through the doctrine of vicarious liability, explaining: In response to Capital One's motion, plaintiff does not explicitly contest or concede that Capital One is not a “debt… Read More
In Marchand v. Chase Bank USA, N.A., 2011 WL 1296711 (C.D.Cal. 2011), Judge Pregerson found that a debt collection counter-claim in federal court was permissive to the underlying Rosenthal Act claim, and declined to exercise supplemental jurisdiction to hear it. (See, e.g. Sparrow v. Mazda American Credit, 385 F.Supp.2d 1063, 1068 (“breach of contract counterclaims for the underlying debt are… Read More
In Taylor v. Pinnacle Credit Services, LLC, 2011 WL 1303430 (N.D.Cal. 2011), Judge Spero applied Iqbal/Twombly to find that (1) determination of whether a form letter violates the FDCPA/Rosenthal Act can be decided as a matter of law, and (2) the debt collector’s letter, which stated that defendant was represented by an attorney from New Jersey who was not licensed… Read More
In Picardi v. Eighth Judicial Dist. Court of State, ex rel. County of Clark, --- P.3d ----, 2011 WL 1205284 (Nev. 2011), the Nevada Supreme Court struck down an arbitration clause in an automobile retail installment sales contract on the basis that the class action arbitration clause violated Nevada state public policy. The Supreme Court set the stage for the… Read More
The Federal Reserve Board recently adopted two rules, Reg. Z Rule, and Reg. M Rule, that would expand the coverage of consumer protection regulations to credit transactions and leases of higher dollar amounts. The final rules amend Regulation Z (Truth in Lending) and Regulation M (Consumer Leasing) to implement a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act.… Read More
In Lucero v. Bureau Of Collection Recovery, Inc., --- F.3d ----, 2011 WL 1184168 (10th Cir. 2011), the Court of Appeals for the Tenth Circuit held that an FDCPA defendant may not deprive a class plaintiff of a justiciable controversy by serving a Rule 68 Offer of Judgment before class certification. The facts and procedural history were as follows: … Read More
In Vick v. NCO Financial Systems, Inc., 2011 WL 1157692 (E.D.Tex. 2011), Judge Ward found that a non-debtor third party had no standing to pursue a claim under the FDCPA, explaining: NCO filed numerous objections to the report (Dkt. No. 96). The court overrules NCO's objections, except as to the issue of whether Mr. Vick has third-party standing to… Read More
In Mauk v. Pioneer Ford Mercury, --- S.E.2d ----, 2011 WL 1107031 (Ga.App. 2011), the Court of Appeal held that a customer who purchased a lemon vehicle Sheila Mauk bought a new Mustang in May 2007, and within three weeks brought it back to the dealership, Pioneer Ford Mercury, with complaints about the transmission. Over the next nine… Read More
In Bentley v. Bank of America, N.A., --- F.Supp.2d ----, 2011 WL 1097452 (S.D.Fla. 2011), Judge Dimitrouleas held that a Plaintiff might be able to state a claims under the TCPA where calls were placed to the Plaintiff’s cell phone, as opposed to the Plaintiff’s land-line. Judge Dimitrouleas found that the ‘established business relationship’ exception to the TCPA prohibition against… Read More
In Montalvo v. Asset Acceptance, here, the District Court held that an FDCPA plaintiff lacked standing to assert the claim. Since the Plaintiff failed to list the claim in Plaintiff's bankruptcy schedules, the doctrine of judicial estoppel operated to prevent the Plaintiff from asserting the claim post-discharge. Read More
In Russo v. BMW of North America, LLC, et al., Defendants-Appellants, --- N.Y.S.2d ----, 2011 WL 1120087 (N.Y.A.D. 1 Dept. 2011), the New York Appellate Division rejected the “no car, no claim” rule in lemon law cases, explaining: Defendants also failed to demonstrate that by returning the vehicle as required by the lease agreement, plaintiff spoliated evidence. The Court of… Read More
In Yelin v. Swartz, 2011 WL 1103450 (E.D.Pa. 2011), Judge Buckwalter found that efforts to collect on a renter’s damage to a rental car constituted a ‘debt’ under the FDCPA, explaining: In this case, Defendants argue that Plaintiff has failed to state an FDCPA claim because the money he owes does not qualify as a “debt” under the statute.… Read More
In Powell v. West Asset Management, Inc., --- F.Supp.2d ----, 2011 WL 1126040 (N.D.Ill. 2011), Judge Darrah found that the TCPA imposes no duty to mitigate on behalf of consumers receiving unsolicited telephone calls. Judge Darrah set forth the facts as follows: The following facts are drawn from Plaintiff's Complaint and are accepted as true for purposes of the… Read More
In Gutierrez v. Barclays Group, 2011 WL 579238 (S.D.Cal. 2011), Judge Sabraw held that a consumer survived summary judgment on the consumer’s TCPA claim. Judge Sabraw held that any consent given by the consumer to be called on the consumer’s cellular telephone could, and was, revoked. Judge Sabraw also held that the consumer need not prove that he/she was charged… Read More
SB 890 originally had been a short bill designed to require debt collectors , when suing, to produce documentation that evidences that the debt collector is attempting to collect from the right person, for the right amount, on a debt that the debt collector can lawfully recover. Yesterday, On March 24, the Legislature amended the Bill to purportedly create the… Read More
