In Pintos v. Pacific Creditor’s Association, Inc. --- F.3d ----, 2009 WL 1151800 (9th Cir. 2009), the Court of Appeals for the Ninth Circuit addressed whether a creditor of towing debt had a permissible purpose under FCRA to pull a credit report on the debtor. The Court of Appeals held that the creditor did not, explaining: To qualify under §… Read More
The 9th Circuit and a number of California Court of Appeal decisions have split on FCRA pre-emption of California's CCRAA. We wrote about it here. The parties have sought rehearing of Gorman in the 9th Circuit. Some of the briefs are here: MBNA's Brief on Rehearing; CDIA's Amicus Brief on Rehearing, CBA's Amicus Brief on Rehearing; Gorman's Opposition to Rehearing;… Read More
Six federal agencies issued a set of frequently asked questions (FAQs) today to help financial institutions, creditors, users of consumer reports, and issuers of credit cards and debit cards comply with federal regulations on identity theft and discrepancies in changes of address. The “Red Flags and Address Discrepancy Rules,” which implement sections of the Fair and Accurate Credit Transactions Act… Read More
Not all Plaintiffs are created equal under the FDCPA. In Bank v. Pentagroup Financial, LLC, 2009 WL 1606420 (E.D.N.Y. 2009), Judge Gleeson held that a non-debtor has no standing to pursue a claim under 15 USC 1692c (debt collector can only communicate with the debtor, his attorney, or designated representative about the debt), but did have standing to pursue a harasment claim under… Read More
In Puttner v. Debt Consultants of America, 2009 WL 1604570 (S.D.Cal. 2009), Judge Hayes applied a liberal pleading standing to the FDCPA under FRCP 8. The Plaintiff argued that “foundational facts need not be pled with particularity in order to state a claim under the FDCPA or the RFDCPA” and that “the Complaint alleges sufficient facts to support claims for… Read More
In Hyde v. Midland Credit Management, Inc., --- F.3d ----, 2009 WL 1587902 (9th Cir. 2009), the Court of Appeals for the Ninth Circuit held that the FDCPA (15 U.S.C. § 1692k(a)(3)) does not allow an award of reverse attorneys’ fees against the debtor’s attorney, only the debtor. In Hyde, the defendants prevailed on the merits against the debtor’s FDCPA… Read More
In Sullivan v. CTI Collection Services, 2009 WL 1587588 (M.D.Fla. 2009), Judge Moody held that threadbare recitals of the FDCPA fail to meet the pleading standard of FRCPs 8 and 12(b)(6). Judge Moody explained: While the Supreme Court has not explicitly overruled Conley, it has explicitly rejected the language relied on by Plaintiff in Bell Atlantic Corporation v.… Read More
In Pulliam v. American Express Travel Related Services Co., Inc., 2009 WL 1586012 (N.D.Ill. 2009), Judge Kennelly addressed whether a pro per Plaintiff stated a claim upon which relief could be granted under FCRA arising from the defendant’s purported access of Plaintiff’s credit report without a permissible purpose. The issue before the District Court was whether FCRA permits a creditor… Read More
In Kearns v. Ford Motor Company, --- F.3d ----, 2009 WL 1578535 (9th Cir. 2009), the Court of Appeals for the Ninth Circuit applied the heighted pleading standing of FRCP 9(b) for CLRA and UCL claims, rather than the looser state law pleading standard for causes of action arising under such statutes, even if the case arose from one removed… Read More
In Doppes v. Bentley Motors, Inc. --- Cal.Rptr.3d ----, 2009 WL 1578400 (2009), the Court of Appeal for the Fourth District held that the Song-Beverly Act did not preclude an award of pre-judgment interest. The Court of Appeal explained: Civil Code section 3287 is the statutory basis for pre-judgment interest. Subdivision (a) of section 3287 states, in part: “Every… Read More
In Dotson v. Portfolio Recovery Associates, LLC, 2009 WL 1559813 (E.D.Pa. 2009), Judge Shapiro denied class certification in an FDCPA matter arising out of a form dunning letter which purported to violate the FDCPA. Judge Shapiro acknowledged that dunning letters under the FDCPA are analyzed under an objective standard from the perspective of the least sophisticated debtor, but nevertheless held… Read More
In Kuschner v. Nationwide Credit, Inc. 2009 WL 1531574 (E.D.Cal. 2009), Judge Karlton ruled on whether a debt collector could assert a counter-claim against an FDCPA plaintiff due to the Plaintiff’s surreptitious recording of telephone calls between the Plaintiff and the debt collector. The Court had ruled that the debt collector should be allowed leave to file the counter-claim, and… Read More
In Hambrick v. Wells Fargo Bank, N.A., 2009 WL 1532676 (N.D.Miss. 2009), Judge Pepper required a Plaintiff to plead each element of the definition of “debt collector”, denying the Plaintiff the right to conduct discovery in order to be able to plead one of the elements. The issue involved whether, when Wells Fargo took assignment of the debt, the debt… Read More
In Caballero v. Ocwen Loan Servicing, Inc., 2009 WL 1528128 (N.D.Cal. 2009), Judge Whyte quickly disposed of a Plaintiff’s argument that a loan servicer involved in the foreclosure of the Plaintiff’s home was subject to the FDCPA. Judge Whyte explained, in granting the loan servicer's Rule 12(b)(6) motion: Defendant seeks dismissal of the Fair Debt Collection Practices Act claim… Read More
We previously reported here on the California Supreme Court's landmark B&P 17200 decision, Tobacco II. A petition for rehearing was filed on June 2, 2009, a copy of which can be found here. The answer will be due next week, with a ruling by the Supreme Court shortly thereafter. Read More
On May 27, 2009, the Consumer Financial Services Law Report published our article entitled, "Does the Litigation Privilege Protect against Suits Filed under California's Rosenthal FDCPA?" at 13 Con. Fin. Serv. L. Rep. 3 (May 27, 2009). The publisher allowed us to reproduce it here. Source: Consumer Financial Services Law Report. Copyright 2009 by LRP Publications, P.O. Box 24668, West Palm Beach, FL… Read More
Arising from a workshop put on by the FTC, the FTC would recommend a number of changes to the FDCPA, including: 1. Increasing statutory damages 2. Requiring Debt Collectors to advise consumers of rights the consumers may have vis-a-vis the Debt Collector 3. Having Congress authorize FTC Rulemaking The FTC's Report can be found here. The FTC announced a… Read More
With the FTC supporting federal legislation to regulate automobile finance, and the government's involvment in private automobile manufacturers, economists for the Obama Administration's Antitrust Division of the Department of Justice are evaluating the effects of state law prohibitions on direct automobile sales to consumers by manufacturers. Economic Effects of State Bans on Direct Manufacturer Sales (5/09) Read More
Although we assume that their FDCPA classes are quite good, we report that a district court magistrate in Tennessee refused an in pro per Plaintiff's request for an order requiring defense counsel to attend FDCPA classes at a local law school. The case arose in Livinston-Cross v. Bank of America, 2009 WL 1471126 (M.D.Tenn. 2009), where Judge Campbell relied on the… Read More
In Thompson v. General Motors Acceptance Corporation, __ F.3d. __ 2009 WL 1457718 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit fell in line with the Courts of Appeals for the Sixth, Eighth, Ninth, and Tenth Circuits in holding that a creditor, who lawfully seizes a vehicle pre-petition, must immediately return the vehicle to the debtor. The… Read More
