FCRA's pre-emptive reach is broad, preempting even California's Confidentiality of Medical Information Act. The Court of Appeal in Brown v. Mortensen 2010 WL 324749 (2010) explained: As previously noted, we have found no cases addressing the interplay of the CMIA and the FCRA. However, multiple federal district courts have addressed the scope of FCRA preemption under section 1681t(b)(1)(F). For example, in Pirouzian… Read More
In D.L. Edmonson Selective Service Inc. v. LCW Automotive Corp. 2010 WL 309018 (C.D.Cal. 2010), the Court found the Song-Beverly Act not applicable to a vehicle delivered out-of-state, explaining: As a threshold issue, LCW contends that the Song-Beverly Act does not apply to this case because the limousine was delivered to and accepted by plaintiff in Texas, not California.FN29 “[F]or… Read More
The U.S. District Court for the Eastern District of California entered default judgments against two debt collectors in separate cases, reaching the same conclusion on different facts as to sums recoverable on default for emotional distress under the FDCPA. In Molina v. Creditors Specialty Services, Inc. 2010 WL 235042 (E.D. Cal. 2010), the District Court entered a default judgment against… Read More
In Gastineau v. Wright, --- F.3d ----, 2010 WL 154794 (7th Cir. 2010), the Court of Appeals for the Seventh Circuit approved of a reduction of a plaintiff’s counsel’s attorneys’ fees because of counsel’s experience prosecuting FDCPA matters, explaining: Duff argues that the district court abused its discretion by lowering his hourly rate from $250 to $150 based on… Read More
On January 20, 2010, the FCC Announced its proposed rule on the TCPA. See the Press Release here and the Proposed Rule here. Key provisions proposed by the FCC include: 1. Requiring sellers and telemarketers to obtain telephone subscribers’ express written consent (including electronic methods of consent) to receive prerecorded telemarketing calls, even when there exists an established business relationship between… Read More
In Donohue v. Quick Collect, Inc. 2010 WL 103653 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit held that a complaint in a collection lawsuit is a debt collection "communication" to the debtor which, if false, may violate the FDCPA. The complaint alleged pre-assignment interest at 18%, which was not an illegal charge in violation Washington state's usury law because… Read More
In Ellis v. Solomon and Solomon, P.C., --- F.3d ----, 2010 WL 104570 (2d Cir. 2010), the Court of Appeals for the Second Circuit held that “service of process during the validation period must, at a minimum, be preceded or accompanied by notice to the consumer clarifying that the lawsuit does not in any way alter the information contained in… Read More
We noted that the U.S. Supreme Court has taken up the issue of the scope of the bona fide error defense to an FDCPA claim in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 2009 WL 803127 (2009). Oral argument was heard yesterday in the Jerman matter, and a transcript of the proceedings can be found here. Read More
On December 31, 2009, the Attorney General's Office issued issued Opinion 08-804, addressing the question whether, "the single document requirement for automobile sales contracts satisfied if the document consists of multiple pages that are attached to each other and integrated by means such as inclusive sequential page numbering (e.g., “1 of 4,” “2 of 4,” etc.)?". The Attorney General opined… Read More
In Vallies v. SkyBank, -- F.3d --, 2009 WL 5154473 (3d Cir. 2010), the Court of Appeals for the Third Circuit held that a showing of detrimental reliance is required to recover actual damages for a TILA disclosure violation in a vehicle retail installment sales contract. Vallies involved, in a putative class action, whether a plaintiff must prove detrimental reliance in order… Read More
Dear 'blog Users, Our state and federal appellate courts in California just haven't been that busy on issues facing us recently. Perhaps that's a good thing. It's not that we haven't been checking; we just haven't seen good, blog-worthy cases to fill your email box with. We did not want to get to the end of the Holiday Season without giving thanks… Read More
In Nichols v. GC Services, LP, 2009 WL 3488365 (D. Ariz. 2009), the United States District Court for Arizona addressed purported threats regarding what the debt collector may or may not do: In determining whether a threat has been made, “the conditional nature of a statement, such as the use of the words ‘may’ or ‘possible,’ does not negate… Read More
Here's the short ruling: red-flag-rule-15-amended-order. The FTC today issued an amended Red Flag Rule here. The FTC also delayed its enforcement of the Rule until June 1, 2010: FTC Extends Enforcement Deadline for Identity Theft Red Flags Rule. At the request of Members of Congress, the Federal Trade Commission is delaying enforcement of the "Red Flags" Rule until June… Read More
A copy of the report can be found here. Read More
Today, the Financial Services Committee approved legislation that will establish a new, independent federal agency solely devoted to protecting Americans from unfair and abusive financial products and services. The Committee's press release states as follows: As called for by President Obama, the Consumer Financial Protection Agency (CFPA) represents one of the most significant efforts by Congress to bring about long… Read More
The Court of Appeals for the Ninth Circuit re-issued its Gorman decision, following re-hearing petitions filed by industry, with mere commentary in footnotes. With these amendments, the panel unanimously has voted to deny Appellant’s petition for rehearing en banc and Appellee’s petition for panel rehearing and petition for rehearing en banc. The full court has been advised of the petitions… Read More
In Edwards v. Niagara Credit Solutions, Inc. 2009 WL 3273300 (11th Cir. 2009) the Court of Appeals for the 11th Circuit decided the validity of a debt collector's concerns that complying with the mini-Miranda requirement of the FDCPA risked violating the FDCPA's prohibition against third party disclosure. Or, as the Court of Appeals described it, whether the debt collector "had… Read More
In VanDyke v. Northern Leasing System, Inc., 2009 WL 3320464 (E.D. Cal. 2009), Judge Hollows held that a transaction for software to be used primarily in a small business was not subject to the FDCPA, explaining: The amended complaint also concedes that plaintiff contracted with defendant to lease “virtual terminal software.” ( Id.) Although plaintiff does not specifically allege… Read More
In Tietsworth v. Sears, Roebuck and Co., 2009 WL 3320486 (N.D.Cal. 2009), Judge Fogel explained, As a threshold matter, the parties disagree with respect to whether Plaintiffs' UCL and CLRA claims are subject to the heightened pleading requirements of Rule 9(b). This issue was addressed by the Ninth Circuit in Kearns v. Ford Motor Co., 567 F.3d 1120 (9th… Read More
In Fariba v. Dealer Services Corp., 2009 WL 3191538 (2009), the California Court of Appeal for the Fourth District held that a floorplan lender's security interest was subordinate to an automobile wholesaler's ownership interest because, under consignment law, the floorplan lender knew that the defunct dealer dealt in consignment sales. The facts were as follows: Plaintiff Behyar Fariba is an automobile… Read More
