The Court of Appeals for the Tenth Circuit adopted the creditor's interpretation of the "hanging paragraph" of section 1325(a) of BAPCPA in In re: Padgett (BAP No. KS-08-069) (10th Cir. 2009) Read More
The California Attorney General assigned an opinion request number to a request on the following subject: 08-804: Will the "single document" requirements of Civil Code Sections 2981.9 and 2985.8 regarding conditional sale contracts and motor vehicle lease contracts support multi-page documents if the pages are attached to each other and properly integrated by a appropriate means such as inclusive sequential… Read More
In Marlin v. Chase Cardmember Services, Inc. 2009 WL 2043014 (E.D.Cal. 2009), Judge Ishii held that a credit card company collecting its own obligation was not subject to the FDCPA. Moreover, Judge Ishii denied leave to amend notwithstanding the Plaintiff’s suspicion that the creditor employed an outside agency to collect in its name. The Court does not believe that… Read More
SB 95 7.1.09 Amendments and SB 95 7.14.09 Bill Analysis and SB 95 Analysis 7.16.09 Read More
On Wednesday, the House Financial Services Committee heard testimony from industry on the Administration's financial reform proposals. The testimony can found be found here, highlighted by prepared statements from AFSA, MBA. and ABA. Today, the House FSC is hearing testimony from Consumer Advocates, whose prepared statements can be found here. Read More
In Chastain v. N.S.S. Acquisition Corp., 2009 WL 1971621 (S.D.Fla. 2009), Judge Hurley addressed whether an auto dealer violated TILA by engaging in a “spot delivery” and then repossessed the vehicle when third party financing did not materialize. Judge Hurley found no TILA violation, explaining: However, there is nothing in TILA or Regulation Z which prohibits financing contingencies in… Read More
In Basinger-Lopez v. Tracy Paul & Associates, 2009 WL 1948832 (N.D.Cal. 2009). Judge Armstrong refused to award emotional distress damages in an FDCPA case. Defendant failed to appear in the action, and Plaintiff sought to recover $10,000 in actual damages arising from emotional distress suffered due to the alleged collection activities of the defendant, which included threats of legal action,… Read More
On June 30, the Obama administration delivered legislation to the Hill in support of creating a Consumer Financial Protection Agency. The text of the legislation can be found here, and the FTC's prepared statement to the House Financial Services Committee can be found here. The House Financial Services Committee Press Release can be found here. The Senate Committee on Banking,… Read More
On July 1, and effective July 1, 2010, July 1, 2009 Inter-agency FACTA Rule 974 Fed. Reg. 31484 (2009) was issued defining the obligations imposed on furnishers of credit reporting information. The history behind the July 1, 2009 Inter-Agency Rule is as follows. FACTA and Implementing Regulations On December 4, 2003, Congress passed the Fair and Accurate Transactions Act, which amended the… Read More
In Hartung v. J.D. Byrider, Inc., 2009 WL 1876690 (E.D.Cal. 2009), Magistrate Judge Austin addressed the standard required for proof of emotional distress damages under the FDCPA, and found that a Plaintiff must meet the elements of a state court IIED claim. Judge Austin addressed the following fact pattern pursuant to Plaintiff’s effort to prove-up a default judgment. Anderson… Read More
On June 23, 2009, the FTC issued an informal staff opinion purporting to resolve a conflict between the FDCPA and the FCRA, explaining: The potential conflict arises when a consumer orders a debt collector in writing to cease communication, but at some future time submits a direct dispute about information the debt collector has provided to a CRA. The Rule… Read More
In Komarova v. National Credit Acceptance, Inc. 2009 WL 1803263 (2009), the California Court of Appeal held that the litigation privilege does not provide a defense to a Rosenthal Act claim, and applied the “continuing violation” doctrine to allow recovery for violations of the Act that occurred beyond the statute of limitations. As to the litigation privilege, the Court… Read More
In Hartman v. Great Seneca Financial Corp., -- F.3d -- 2009 WL 1852930 (6th Cir. 2009), the Court of Appeals for the Sixth Circuit refused to apply the Noerr-Pennington doctrine defense to the FDCPA, explaining: Great Seneca and Javitch argue that they are immune from suit based on statements made during judicial proceedings and that permitting such suits as brought… Read More
SB 95 passed the Senate. Yesterday, the Assembly Committee on the Judiciary issued a Bill Analysis, which outlined the legislation and identified that a deal apparently had been reached between sponsors and opponents: As proposed to be amended, the bill reflects consensus reached between supporters and the new car dealers association, which had previously been opposed to the bill. The proposed amendments… Read More
In O’Donovan v. CashCall, Inc., 2009 WL 1833990 (N.D.Cal. 2009), Judge James addressed whether plaintiffs stated a class action claim against CashCall under the CLRA. Judge James held that Plaintiffs’ claim under the UCL failed to state a claim upon which relief could be granted, explaining: Defendant notes that the California Court of Appeal has held that the extension… Read More
In Castellanos v. JP Morgan Chase & Co. 2009 WL 1833981 (S.D.Cal. 2009), Judge Huff held that the Plaintiff had sufficiently alleged facts to state a claim under the Rosenthal Act, but denied Plaintiff's claims under the Fair Credit Billing Act, and torts of invasion of privacy and "tort in se". As to the FCBA claim, Judge Huff explained The Court concludes that Plaintiff… Read More
In Riley v. Giguiere, 2009 WL 1748721 (E.D.Cal. 2009), Judge Karlton addressed whether an attorney involved in an unlawful detainer action was a ‘debt collector’ under the FDCPA. Judge Karlton held that the attorney was ‘regularly’ engaged in debt collection, explaining: Briefly, a debt collector includes anyone who “regularly collects or attempts to collect, directly or indirectly, debts owed… Read More
On Friday, the Court of Appeals for the Ninth Circuit issued its opinion in Satterfield v. Simon & Schuster, Inc. -- F.3d --, 2009 WL 1708081 (9th Cir. 2009). Satterfield addressed three issues. First, was the defendant's dialer an automatic telephone dialing system under the TCPA. The Court of Appeals held that there as a triable issue of fact, and… Read More
In Mexia v. Rinker Boat Co., Inc.2009 WL 1651442 (2009), the Fourth District Court of Appeal held that the Song-Beverly Act adds to the UCC's implied warranty of merchantability by giving the warranty a duration equal to any express warranty on the goods, but at least 60 days and no more than a year after purchase. (Civ. Code § 1791.1(c)) … Read More
In Smith v. NCO Financial Systems, Inc. 2009 WL 1675078 (E.D.Pa. 2009), Judge Rufe addressed whether a debtor stated claim under the FDCPA arising out of a debt collector’s use of a “Privacy Notice”, which stated: Information We Collect: We collect non-public personal information about you from the following sources: From you on applications or other forms, over the… Read More
