AB 125 was designed to "rectify a drafting error in AB 2782 (Insurance Committee), Chapter 400, Statutes of 2010, an omnibus bill sponsored by the California Department of Insurance. In the effort to recognize in statute, and formalize the differences between true insurance products, and waiver provisions in loans, leases and sales contracts, what has long been marketed as GAP products, the drafters inadvertently eliminated… Read More
In Carman v. the CBE Group, Ltd., here, Judge Robinson found an absence of harassing intent under the FDCPA notwithstanding 149 phone call attempts in a two month period, 0-4 call attempts per day to the plaintiff's home phone number and 0-3 call attempts per day to the plaintiff's place of employment. Judge Robinson explained: In this case, the Court finds there… Read More
In Cox v. Kia Motors Am., Inc., 2011 WL 924020 (Ohio App. 2011), the Ohio Court of Appeals followed Ninth Circuit precedent to hold that the Magnuson-Moss Warranty Act applies to limited, as well as full, warranties. Whether the MMWA applies to limited warranties is an issue of first impression in Ohio. But many other state and federal courts… Read More
In Vance v. Bureau of Collection Recovery LLC, 2011 WL 881550 (N.D.Ill. 2011), Judge Dow found that Plaintiff had pleaded enough facts to proceed on a TCPA claim arising out of debt collection calls to his cellular telephone. The facts recited in the opinion were scarce, but, basically, it appears that the Plaintiff alleged that she received multiple automated debt… Read More
Today, the FTC submitted its Annual Report to Congress, here. Data in the report show that in 2010, as in other recent years, the FTC received more complaints about debt collection than any other single industry. Specifically, the agency received 140,036 debt collection complaints in 2010, up from 119,609 complaints in 2009. The top three categories of complaints about third-party collectors… Read More
In American Exp. Bank, FSB v. Dalbis, 2011 WL 873512 (N.Y.City Civ.Ct. 2011), Judge Straniere rejected an application for default sought by a Bank against its customer on the basis that there might be a statute of limitations problem and the Bank had not properly proved up the instrument evidencing the debt. Having apparently just appeared at a high school production… Read More
In Stuart v. AR Resources, Inc., 2011 WL 904167 (E.D.Pa. 2011), Judge Buckwalter allowed a Plaintiff's TCPA-FDCPA claim to proceed, explaining: Plaintiff next asserts that Defendants have violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by calling her cellular telephone with automated recordings. (Compl.¶¶ 15, 36.) Under the TCPA, it is unlawful: (A) to make any call… Read More
In O'Rourke v. Palisades Acquisition, LLC, here, the Court of Appeals for the Seventh Circuit held that since the FDCPA protected only consumers (and not third parties), a state court pleading that arguably would have deceived the state court judge in a collection action was not actionable under the FDCPA. In O'Rourke, the debt collector sought but failed to collect… Read More
In Edeh v. Midland Credit Management, Inc., here, the Court of Appeals for the Eighth Circuit issued a short opinion affirming the district court's summary judgement motion, holding that a furnisher of information need investigate only what is contained in the CRA’s dispute notice as to the nature of the dispute. We previously had reported on the district Court's opinion in October… Read More
In Weldon v. Asset Acceptance, LLC, 2011 WL 902018 (S.D.Ind. 2011), Judge Magnus-Stinson addressed the intersection between the Rooker-Feldman doctrine and res judicata with regard to a debt collector filing suit on a time-barred debt in state court. Judge Magnus-Stinson held that the Rooker-Feldman doctrine did not deprive the district court of jurisdiction nor did res judicata provide the debt… Read More
In Coleman v. Credit Management LP, 2011 WL 913210 (N.D.Tex. 2011), Judge Lynn held that a separate counter-claim for bad faith is not the proper way for an FDCPA defendant to challenge a Plaintiff’s FDCPA claim on bad faith grounds. Judge Lynn granted Plaintiff's Motion to Dismiss, holding held that a Defendant has the right to allege bad faith in post-judgment proceedings,… Read More
In Johnson v. Cabinsky, here, Judge Rykamp held that merely filing a collection action that loses does make an FDCPA claim. Citing past precedent, Judge Rykamp explained: Granting Defendant's Motion for Summary Judgment is consistent with this Court's decisions in Gonzalez v. Erskine, No. 08-20893-CIV-SEITZ, 2008 WL 6822207 (S.D. Fla. Aug. 7, 2008) and Sierra v. Rubin & Debski,… Read More
On Wednesday, March 16, 2011, Special Advisor to the Secretary of the Treasury for the Consumer Financial Protection Bureau, Elizabeth Warren, will testify before the House Financial Servies Committee on the subject of "Oversight of the Consumer Financial Protection Bureau". This follows on the heals of Ms. Warren's letter exchange with the Committee regarding the CFPB, here. The hearing… Read More
Walker v. First National Collections Bureau is pending before the Fifth District Court of Appeals in Texas, which addresses whether TCPA should apply to debt collection calls, although there are a number of nuances that deal with Texas law. Oral argument has been scheduled for May 17 of this year. The appellant’s reply brief can be found here. Read More
Courts have addressed the issue of whether misrepresentation or 'spoofing' of Caller IDs in collection calls can violate the FDCPA, and we have reported on such cases previously. Yesterday, the FCC issued a Notice of Proposed Rulemaking, with a comment deadline of April 18, 2011, regarding its implementation of regulatory and enforcement rules for the Truth in Caller ID Act… Read More
In In re American Express Merchants' Litigation, --- F.3d ----, 2011 WL 781698 (2d Cir. 2011) ,the Court of Appeals for the Second Circuit invalidated a class action waiver in a merchant credit card agreement on remand following the Supreme Court’s decision in Stolt-Nielsen. The Court of Appeals framed the issue as its considering “the enforcement of a mandatory arbitration… Read More
Following on the heals of a publicized judicial ruling prohibiting a debt collector from using Facebook or other social media to locate a debtor (http://www.miamiherald.com/2011/03/09/2106171/judge-debt-agency-cant-contact.html#ixzz1G8yc50zM), the FTC announced that it would "hold a public workshop on April 28, 2011, to address consumer protection issues that have arisen as debt collectors avail themselves of advances in technology. The workshop will explore… Read More
Starting next month, the Federal Trade Commission will host a series of roundtables around the country to gather information on consumers’ experiences when buying or leasing motor vehicles. The roundtables will explore consumer protection issues related to the sale, financing, and leasing of the consumer vehicles consumers most often use – cars, SUVs, and light trucks. The first roundtable will… Read More
In McCullough v. Johnson, et. al., here, the Court of Appeals for the Ninth Circuit affirmed a large jury verdict against a debt collection law firm arising from the Firm's prosecution of a debt collection lawsuit. The facts, briefly stated, are as follows: A debt collection law firm in Montana was retained by a creditor to collect a credit card… Read More
In C & J Vantage Leasing Co. v. Wolfe --- N.W.2d ----, 2011 WL 744633 (2011), the Iowa Supreme Court addressed whether a commercial personal property lease was a disguised security agreement. In finding that a triable issue of act existed as to whether the lease was a true lease, the Court explained: First, we must decide whether the lease… Read More
