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
In Hamberg v. JP Morgan Chase Bank, 2010 WL 2523947 (S.D.Cal. 2010), Judge Huff refused to strike the Plaintiff’s claim for damages under the Rosenthal Act which sought a “per violation” penalty rather than a “per suit”. Judge Huff explained: Plaintiffs' SAC seeks statutory damages of $1,000 per violation of the Rosenthal Act. (SAC, prayer for relief.) The Rosenthal… Read More
In Lange v. CIR Law Offices, 2010 WL 2524089 (S.D.Cal. 2010) Judge Bencivengo found that a law firm engaged in debt collection whose post-judgment garnishment had erroneously garnished exempt social security funds did not violate the FDCPA. Judge Bencivengo explained: In the absence of any evidence that CIR had any knowledge of the nature of Lange's account prior to… Read More
In Day v. American Home Servicing, Inc. 2010 WL 2231988 (E.D.Cal. 2010), Judge Burrell held that a consumer stated a Rosenthal Act claim under the Iqbal/Twombly pleading standard for communicating with a represented party notwithstanding the fact that notice was not given in writing. Judge Burrell explained: Since the Rosenthal Act incorporates violations of the federal Fair Debt Collection… Read More
In Shuler v. Ingram & Associates, 2010 WL 1833626 (N.D.Ala. 2010), Judge Kallon addressed what constitutes harassment, both in substance and frequency. As to substance, Judge Kallon listed to audiotapes and found that testiness and advising a consumer of the consequences of their (in)action did not violate the FDCPA. Section 1692d(2) forbids debt collectors from “engaging in any conduct… Read More
In Sengenberger v. Credit Control Services, Inc. 2010 WL 1791270 (N.D.Ill. 2010), Judge Zagel found unlawful certain pre-recorded calls made to a consumers cellular telephone. The TCPA prohibits the use of a prerecorded voice when making calls to a cell phone. 47 U.S.C. § 227(b)(1). Specifically, the TCPA states that it is unlawful for a person: “(A) to make… Read More
See the Court of Appeals' decision in Rouse v. Law Offices of Rory Clark here. Read More
Not personal property, but worth the read. In In re: Aniel, --- B.R. ----, 2010 WL 1609923 (Bkrtcy.N.D.Cal.), Judge Montali did not vacate a relief from stay order, explaining that the debtor “steadfastly and repeatedly resisted motions for relief from stay, while at the same time steadfastly and repeatedly refus[ed] to make payments pending resolution of their disputes about the… Read More
In Marcotte v. General Electric Capital Services, Inc., 2010 WL 1573680 (S.D.Cal. 2010), Judge Moskowitz held that the Rosenthal Act did not prohibit a credit card company from sending billing statements notwithstanding notice from the debtor’s counsel that the debtor was represented. Judge Moskowitz summarized: In summary, the Court concludes that billing statements are exempted under § 1788.17… Read More
In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, --- S.Ct. ----, 2010 WL 1558977 (2010), Justice Sotomayor ruled that the bona fide error defense in §1692k(c) does not apply to a violation resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA. The Fair Debt Collection Practices Act (FDCPA), 15 U. S. C. §1692… Read More
In Purdue v. Kenny, -- S.Ct. -- (2010), Justice Alito authored an opinion holding that there is a strong presumption that the lodestar method of calculating attorneys' fees in fee shifting statutes (in this case, 42 USC 1988) sufficiently compensates the attorney, and that a multiplier, while allowed, is permissible only in rare cases. While Purdue involved a civil rights… Read More
In Holster v. Gatco, Inc., --- S.Ct. ----, 2010 WL 1525998 (2010), the United States Supreme Court granted certiorari as to whether a TCPA matter could proceed in federal court notwithstanding New York’s prohibition against TCPA class action. Judge Scalia concurred in the grant of certiorari, explaining: The petition for a writ of certiorari is granted. The judgment is… Read More
In Elliott v. Credit Control Services, Inc., 2010 WL 1495402 (S.D.Cal. 2010) Judge Sabraw applied the more stringent pleading standard of Iqbal and Twombly to find that a debt collector’s use of the term “Warning Notice” with its debt validation letter neither overshadowed the debtor’s validation rights nor constituted an unfair debt collection practice. In two recent opinions, the… Read More
In Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., --- S.Ct. ----, 2010 WL 1222272 (2010), Justice Scalia addressed the case where a medical provider brought putative class action against automobile insurer, alleging breach of contract, bad faith breach of contract, and violation of New York law in failing to pay statutory interest penalties on overdue payments of insurance… Read More
In McCarther-Morgan v. Asset Acceptance, LLC, 2010 WL 1417868 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit affirmed Bankruptcy supremacy over the FDCPA and Rosenthal Act, explaining: Betty Jean McCarther-Morgan appeals the dismissal of her adversary action against Asset Acceptance, LLC. McCarther-Morgan alleges violation of the Fair Debt Collection Practices Act (“FDCPA”) and the California Rosenthal… Read More
In Membrila v. Receivables Performance Management, LLC 2010 WL 1407274 (S.D.Cal.), Judge Gonzalez found that a consumer properly pleaded a claim against a debt collector for the manner of recording the collection calls, explaining: California Penal Code § 632, on the other hand, does apply to recording by a participant to a conversation. Section 632 provides a civil remedy… Read More
In Poulin v. Balise Auto Sales, Inc. 2010 WL 1370862 (D.Conn.), Judge Haight dismissed a TILA claim against a car dealer and it’s finance company assignee because it failed to state a claim. The allegations were that Balise and ACE have acted in concert in selling motor vehicles pursuant to retail installment contracts at inflated cash prices to consumers… Read More
The FTC issued its annual report on the FDCPA, accompanied by the following press release: At a time when many consumers are facing debt problems, the Federal Trade Commission has issued its annual report detailing the steps the agency has taken to protect consumers from unfair, deceptive, and abusive debt collection practices and educate the public on the subject. The 32nd… Read More
On March 22, 2010, the FCC issued it's notice of proposed rulemaking, a copy of which is here. This competes with the FTC's efforts to regulate the TCPA, too. The FCC's version includes regulations which, if effectuated, would prohibit a person from initiating any telephone call using an automatic telephone dialing system or an artificial or prerecorded voice to a consumer’s… Read More
In Winberry v. United Collection Bureau, Inc., 2010 WL 996144 (M.D.Ala. 2010), Judge Albritton addressed the debt collector's summary judgment motion on a number of claims made by the Plaintiffs, among them that the the defendant's 33 calls in 1 month did not constitute harassment under the FDCPA. Judge Albritton rejected the debt collector's claim, explaining that Viewing this testimony… Read More
