In Alexander v. Blackhawk Recovery and Investigation, L.L.C. --- F.Supp.2d ----, 2010 WL 3257355 (E.D.Mich.), Judge Steeh held that a repossessor might be subject to the FDCPA when the repossessor breaches the peace in connection with a vehicle repossession. Judge Steeh explained: In Montgomery v. Huntington Bank, the Sixth Circuit Court of Appeals found that Silver Shadow, the defendant-repossession… Read More
In Ruiz v. Gap, Inc. Ruiz v. Gap, Inc. 2010 WL 2170993 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit found speculative Plaintiff’s claims of fear of future identity theft based on theft of a laptop computer that contained the Plaintiff’s social security number. The Court of Appeals explained, in an unpublished opinion, that: The district… Read More
In Hariton v. Chase Auto Finance Corp., 2d, 2010 WL 3075609 (C.D.Cal. 2010), Judge Matz granted summary judgment for an automobile finance company who was sued under FCRA and for negligence in their reporting of their customer’s account. Whether damages are or are not an element of a FCRA claim depends on whether the noncompliance was willful or negligent.… Read More
The Federal Trade Commission announced today that it is proposing revisions to the notices that consumer reporting agencies provide to consumers, and to users and furnishers of credit report information under the Fair Credit Reporting Act (FCRA). The FCRA requires the FTC to publish model notices for several forms that must be provided by consumer reporting agencies. The proposed changes… Read More
The report can be found here. The FTC summarized its conclusions as follows: Based on the record from the roundtables (including the associated public comments) and its experience in debt collection matters, the Commission’s principal findings, conclusions, and recommendations with respect to debt collection litigation are: n States should consider adopting measures to make it more likely that consumers… Read More
In Perlas v. GMAC Mort., L.C.C. – Cal.Rptr.3d –, 2010 WL 3155946 (2010), the California Court of Appeal held that a finance company owed no duty to the borrower to determne the borrower’s ability to repay. Though Perlas involved a home mortgage loan, the same principle may apply to auto finance as well. The Court of Appeal explained: Neither… Read More
In Hutton v. C.B. Accts. Inc., 2010 WL 3021904 (C.D.Ill. 2010), Judge McCuskey held that a debt collector’s message on an answering machine constituted collection activity under the FDCPA even though no collection activities were mentioned, following the 7th Circuit’s recent decision in Gburek v. Litton Loan Servicing LP, ---F.3d ----, 2010 WL 2899110, at *4 (7th Cir. 2010) and… Read More
In Janti v. Encore Capital Group, Inc. 2010 WL 3058260 (S.D.Cal. 2010), Judge Sammartino held that the Plaintiff stated a class action claim against a debt collector for allegedly collecting out-of-statute debt. Judge Sammartino held that the Plaintiff had properly pleaded claims under the FDCPA and UCL, but not the FCRA, explaining that the least sophisticated consumer could have believed… Read More
In an unpublished decision, Kinder v. Allied Interstate, Inc., 2010 WL 2993958 (Cal.App. 4 Dist.) Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115), the California Court of Appeal found that Mr. Kinder's TCPA claims arising out of calls placed to his cellular telephone failed. We previously had discussed Mr. Kinder's litigation in small claims court here: http://www.calautofinance.com/?p=679. The Court of… Read More
In Khozayev v. America's Wholesale Lender, 2010 WL 3036001 (E.D.Cal. 2010), Judge Drozd held that section 1632 did not afford rescission to contracts negotiated in the Russian language, explaining: Next, plaintiffs allege that they are primarily Russian speakers with limited understanding of English and that no loan documents provided to them were translated into Russian in violation of California Civil Code… Read More
In Koby v. ARS National Service, Inc, 2010 WL 1438763 (S.D. Cal. March 29, 2010), Judge Houston addressed the applicability of Foti to leaving voicemail messages on a debtor’s answering machine. Courts have held that not disclosing the above prescribed facts in a message left for the debtor can be a violation of § 1692e(11) [i.e. the mini-Miranda]. See Costa… Read More
In Clayworth v. Pfizer, Inc., ___ Cal.4th ____ (2010), the California Supreme Court held that, to have standing to seek an injunction, the plaintiff need not have suffered a restitutionary loss: The Court of Appeal held Pharmacies were barred from seeking injunctive relief because, it concluded, they had suffered no monetary loss. To the extent this holding rests on the… Read More
In Green Tree Servicing, LLC v. Brough, --- N.E.2d ----, 2010 WL 2894888 (Ind.App. 2010), the Indiana Court of Appeal required arbitration of a FCRA claim because of the arbitration clause in the consumer contract and notwithstanding the consumer’s discharge of the debt in bankruptcy. The Court of Appeal held: We begin by determining whether the parties agreed in… Read More
In Villegas v. U.S. Bankcorp, 2010 WL 2867424 (N.D.Cal. 2010), Judge Seeborg found that the Plaintiff stated a claim against the defendant automobile lender for violation of Civil Code section 1632, California's foreign language translation requirement for consumer contracts. Judge Seeborg described Plaintiff's complaint as follows: Plaintiff Gloria Villegas bought a car. She was referred by the dealer to U.S. Bank… Read More
The Court of Appeals for the Ninth Circuit disagreed with eight other circuit courts on whether a creditor has a purchase money security interest in the negative equity of a debtor's trade-in vehicle in In re: Penrod 2010 Wl 2794409 (9th Cir. 2010) AmeriCredit has placed great emphasis on the decisions of the other circuit courts of appeal. In total,… Read More
In Nelson v. Pearson Ford Co., --- Cal.Rptr.3d ----, 2010 WL 2779307 (2010), the California Court of Appeal dealt with the issue of re-written contracts, the “single-document rule”, and remedies available under the Rees-Levering Automobile Sales Finance Act. In Nelson, the Dealer sold car to buyer on Day 1. The original contract was signed that day and the customer drove… Read More
In Durham v. Continental Cent. Credit, 2010 WL 2776088 (S.D.Cal. 2010), Judge Moskowitz disallowed injunctive relief under the FDCPA, explaining: However, declaratory and injunctive relief are not available to private litigants suing under the FDCPA. The courts that have specifically addressed the issue of whether such relief is available to private plaintiffs in FDCPA actions uniformly hold that the… Read More
In Weakley v. Redline Recovery Services, LLC, --- F.Supp.2d ----, 2010 WL 2787656 (S.D.Cal. 2010), Judge Benitez allowed claims to proceed past the pleadings stage under the FDCPA and Rosenthal Act against a debt collection agency’s individual employees, explaining: First, it is necessary for the Court to determine whether the term “debt collector” applies to the individual Defendants as… Read More
In Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756 (W.D.N.Y.,2010), Judge Schroeder found no violation of the TCPA or FDCPA for automated calls placed to a debtor. Judge Schroeder explained: On December 20, 1991, Congress enacted the Telephone Consumer Protection Act (TCPA), as codified in section 227 of the Communications Act of 1934, as amended, in an effort to address… Read More
In Strom v. National Enterprise Systems, Inc., 2010 WL 1533383 (W.D.N.Y.,2010), Judge Foschio held that a debt collector’s assertion of the bona fide error defense allowed discovery into other complaints so as to allow Plaintiff to attempt to prove that the debt collector’s conduct was not unintentional and the result of a bona fide error. Judge Foschio framed the issue… Read More
