In Booth v. Mee, Mee & Hoge, P.L.L.C., 2010 WL 988473 (W.D.Okla. 2010), Judge DiGiusti applied a narrow reading of the Ninth Circuit’s holding in Slenk, and determined a debt’s ‘consumer purpose’ at the time of debt origination rather than a later consumer use of the collateral. Judge DiGiusti explained: Courts construing the FDCPA have generally held, however, that… Read More
In Anderson v. Frederick Ford Mercury, Inc., --- F.Supp.2d ----, 2010 WL 960423 (D.Del. 2010), Judge Robinson denied a Plaintiff Rucker damages for alleged ‘back-dating’ in a spot delivery situation, and granted summary judgment to the defendant automobile dealer. Judge Robinson explained: The TILA was enacted in order “to assure a meaningful disclosure of credit terms so that the… Read More
In Kazemi v. Payless Shoesource Inc., 2010 WL 963225 (N.D.Cal. 2010), Judge Patel held that under Twombly and Iqbal, Plaintiff stated a claim under the TCPA by alleging that he received unsolicited text messages on his cellular telephone in SMS format, and that defendant’s equipment had the capacity to store or produce telephone numbers to be called, using a random… Read More
In support of their efforts to consolidate consumer protection enforcement in one agency, consumer advocates prepared a nifty little chart for Congress setting out the hodge-podge of administrative agency enforcement of consumer protection. Read More
In Gryzbowski v. I.C. System, Inc. --- F.Supp.2d ----, 2010 WL 774386 (M.D.Pa. 2010), Judge Vanaski held that cell phone messages are subject to Foti, explaining: Although there is no Third Circuit case law dealing with the appropriateness of identification of a debt-collector in a voicemail or answering machine message, numerous district courts have been faced with the issue and… Read More
See the decision of Milavetz, Gallop & Milavetz v. United States here. Read More
In Osei v. Countrywide Home Loans, Inc. 2010 WL 727831 (E.D. Cal. 2010), Judge Karlton discussed the pleading standards for a Rosenthal Act claim. However, Judge Karlton did not discuss the heightened pleading standard for FDCPA claims as some other district courts have under Bell Atl. Corp. v. Twonbly, 550 U.S. 544, 555 (2007) and Ascroft v. Iqbal 129 S.Ct. 1937, 1949 (2009). … Read More
In Davis v. Ford Credit, 2009 WL 3859327 (2009), the California Court of Appeal in Los Angeles held that Ford Credit’s practice of applying a payment to past-due installments first, rather than to the current monthly installment, did not violate the Rees-Levering Automobile Sales Finance Act’s ban on late-fee pyramiding. (Civ. Code, § 2982(k).) The facts of the case were as… Read More
In a decision deemed unpublishable, the Fourth District Court of Appeal in Mid-Century Ins. Co. v. Vinci Investment Company, Inc., 2010 WL 673267 (2010) that a claim brought by a credit union against a car dealer with whom it did business asserting wrongdoing in the assignment of retail installment sales contracts for automobiles might be covered by the dealer's insurance policy. … Read More
In In re: Howard --- F.3d ----, 2010 WL 680974 (C.A.7 (Ill.)), Judge Posner adopted the creditor’s argument on the ‘hanging paragraph’ of BAPCPA, and affirmed the district court’s ruling. Judge Posner explained: This direct appeal from the bankruptcy court, pursuant to 28 U.S.C. § 158(d)(2)(A), requires us to consider an issue that is new in this court.… Read More
In In re: Taylor, --- F.3d ----, 2010 WL 669248 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit addressed a “recurring question in many bankruptcies: What should be the remedy when a court holds that a security interest [in an automobile] is avoidable as a preferential transfer?” The Court of Appeals framed the question and its ultimate… Read More
In Lukather v. General Motors, L.L.C. 2010 WL 377035 (2010), a vehicle manufacturer appealed following a bench trial and court award of damages, a civil penalty, prejudgment interest, and attorney fees and costs under the Song-Beverly Consumer Warranty Act (Act), Civil Code sections 1790 et seq., known as California's “lemon law.” The Court of Appeal rejected the manufacturer’s contentions that… Read More
In Korzeniowski v. NCO Financial Systems, Inc. 2010 WL 466162 (D.Conn.2010), Judge Eginton held that a bare bones Complaint merely setting forth the FDCPA's legal requirements failed under Bell Atl. Corp. v. Twonbly, 550 U.S. 544, 555 (2007) and Ascroft v. Iqbal 129 S.Ct. 1937, 1949 (2009), explaining: [P]laintiff's complaint lacks any factual allegations entitled to deference under Iqbal by the Court. As the Supreme… Read More
In Chaing v. Verizon New England, Inc. – F.3d --, 2010 WL 431873 (1st Cir. 2010), the Court of Appeals for the First Circuit affirmed summary judgment in favor of Verizon based on its reinvestigation under FCRA, explaining: This leaves the question of the extent of a furnisher's investigation obligation under § 1681s-2(b). The statute does not define… Read More
In Vitullo v. Mancini, 2010 WL 438248 (E.D.Va. 2010) Judge Elliott addressed the question of whether the FDCPA allows for injunctive and declaratory relief that has the effect of cancelling or extinguishing a debt as a remedy for violations of the Act. Judge Elliott held that the FDCPA does not afford such relief and granted the defendant’s motion to dismiss. … Read More
In Wang v. Asset Acceptance, L.L.C., 2010 WL 40984 (N.D.Cal. 2010), Judge Conti rejected Plaintiff's assertion that the duty to report accurate information information under Civil Code 1785.25(a) also includes the obligation to note an account as disputed, since such obligation is required by section 1785.25(c). Judge Conti explained Here, in his second cause of action, Wang alleges that despite being… Read More
In United States v. Dish Networks, LLC., 2010 WL 376774 (C.D.Ill. 2010), the California Attorney General associated with Attorneys General from other states to sue Dish Networks for directly and through its authorized dealers (Dealers) and third parties, violating the Federal Trade Commission's (FTC) Telemarketing Sales Rule (TSR), the Federal Trade Commission Act (FTC Act), the Telephone Consumer Protection Act… Read More
In Leahey v. Franklin Collection, Inc., the District Court for the Northern District of Alabama found that an answering message heard by a third party still violated the FDCPA and Hosseinzadeh v. M.R.S. Assoc., Inc. 387 F.Supp.2d 1104 (C.D.Cal. 2005) notwithstanding a 3-second pause and instructions for third parties not to listen to the message. A copy of the decision… Read More
In Bryant v. Gordon & Wong Law Group, P.C., --- F.Supp.2d ----, 2010 WL 339086 (E.D.Cal. 2010), Judge England barred Plaintiff's FDCPA claim under the Rooker-Feldman Doctrine, explaining: The Rooker-Feldman Doctrine established the principle that federal district courts lack jurisdiction over suits that are, in substance, appeals from state court judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);… Read More
In Quale v. Unifund CCR Partners, --- F.Supp.2d ----, 2010 WL 338044 (S.D.Ala. 2010), Judge Granade addressed whether a debtor stated a claim under the FDCPA for the debt collector undertaking collection activities without validating the debt. The debtor pleaded that he requested validation, but the debt collector did not provide same. Although the debt collector undertook no further 'collection… Read More
