In Bickelmann v. Assil Sinskey Eye Institute (2008) 2008 WL 5207090, the Second District Court of Appeal declined to certify a 'junk-fax' class under the TCPA because its 'established business relationship' requirement necessitated individualized questions of fact, explaining: Plaintiff contends that the burden is on the drafter or sender of the advertisement, not the putative class member, to show an… Read More
In Pineda v. Saxon Mortgage Services, Inc. (C.D.Cal.2008) 2008 WL 5187813, Judge Selna held that a loan servicer was not subject to the FDCPA: The FDCPA only applies to to a "debt collector", which specifically excludes creditors and mortgage servicers. 15 U.S.C. 1692a(6)(F). Saxon cites persuasive authority to support this argument. In Perry v. Stewart Title, Co. 756 F.2d 1197… Read More
In Galindo v. Financo Financial, Inc. (N.D.Cal. 2008) 2008 WL 5170204, Judge Alsup refused to allow a consumer to pursue rescission based on Civil Code § 1632 when the consumer had refinanced the loan at issue. In her second amended complaint, Galindo alleged that that the "broker defendants failed to provide any disclosures in the Spanish language." and that "said Defendant's… Read More
In Izenberg v. ETS Services, LLC (C.D.Cal. 2008) 2208 WL 5179088, Judge Morrow held that a foreclosure trustee is not subject to the FDCPA because foreclosure on the mortgaged property is not the collection of a 'debt' under the FDCPA. To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a 'debt collector'… Read More
In Hicks v. Client Services, Inc. (S.D.Fla 2008) Case No. 07-61822-CIV-WPD, District Court Judge Dimitrouleas addressed whether a TCPA class can be certified for (i) all Florida citizens (ii) who received any telephone call from Defendant to said person's cellular telephone service made (iii) through the use of any automatic telephone dialing system or an artificial or pre-recorded voice, (iv)… Read More
Here is the draft text of the auto legislation that Congressional Democrats shared with the White House yesterday. Proposed Auto Legislation Update: 121008-revised-text Read More
In Seeger v. AFNI, Inc., -- F.3d -- 2008 WL 512416 (7th Cir. 2008), the Court of Appeals for the Seventh Circuit addressed a debt collector's contention that its reliance on periodic bulletins from the American Creditor Association ("ACA") gave rise to a 'bona fide error' defense to the plaintiff's claim that, under Wisconsin law, the debt collector could not… Read More
On November 21, 2008, Judge Illston heard argument on whether the Hobbs Act deprived her of jurisdiction to rule on the FTC's Order interpreting the TCPA. Judge Illston granted defendant's Motion to Vacate. See her ruling here. Read More
In Coordinated Automobile Lease Tax Cases (L.A.Sup. Coord. No. JCCP 4378), Judge Anthony Mohr presided over litigation involving whether automobile leases and the holders of such contracts properly assessed use taxes on such items as acquisition fees and service contracts. On April 9, 2008, Judge Mohr sustained the demurrers of the various automobile finance companies without leave to amend, holding… Read More
In a decision of probably more personal than professional importance, Judge Pregerson held that Law Enforcement System's Inc.'s collection outstanding toll violations on Hwy 91 was not subject to the FDCPA. (Yazo v. Law Enforcement Systems, Inc. (C.D.Cal.2008) 2008 WL 4852965). Hwy. 91, for those non-southern-Californians, is a toll road which connects the Orange County beach cities to San Bernardino and… Read More
In McKinney v. Cadleway Prop., Inc. (7th Cir. 2008) __ F.3d. __, the Court of Appeals for the Seventh Circuit defined the extent to which an assignee purchasing a debt in default becomes subject to the FDCPA. The Court of Appeals held that "the purchaser of a debt in default is a debt collector for purposes of the FDCPA even… Read More
Update: Motion Continued to November 21, 2008. -Ed. Defendants' Motion to Dismiss based on the Hobbs Act is fully briefed, and scheduled for hearing on October 31, 2008. Plaintiffs' Opposition states: It appears that part of Defendant's motion has merit and Plaintiff agrees that the Orders granting Plaintiff's and denying Defendant's summary judgment motions must be set aside for… Read More
In Yang v. DTS Financial Group (U.S.D.C. No. 07-CV1731JLS (WMc)), Judge Sammartino of the U.S.D.C. for the Southern District of California opined on whether a 'for profit' credit counseling service fell outside the FDCPA. On an FRCP 12(b)(6) motion, Judge Sammartino held that the plaintiffs had pleaded adequate facts to surve the Motion. The plaintiff had pleaded: Before May 1, 2006,… Read More
The Federal Trade Commission said it would delay implementation of what is known as the “Red Flag” rules from Nov. 1 to May 1, 2009. The rule requires that creditors adopt programs to identify and respond to indicators of identity theft.For the FTC's Notification, please see http://www.ftc.gov/opa/2008/10/redflags.shtm Read More
In Great Seneca Financial v. Holtzclaw, (L.A.Super. No. LC075416), Superior Court Judge Lichtman granted Summary Adjudication to Great Seneca Financial against the debtor's FDCPA claim. The debtor argued that Great Seneca had not qualified to do business in California at the time Great Seneca filed a collection action against the debtor. Judge Lichtman rejected that argument as factual basis for… Read More
It's not an automobile case, but is interesting for statements of law applied. In Galindo v. Financo Financial, Inc., 2008 WL 4452344 (N.D.Cal. 2008), Judge William Alsup required strict compliance with the CLRA's pre-filing notice requirement: California courts require “strict” compliance with Section 1782. Outboard Marine Corp. v. Superior Court, 52 Cal.App.3d 30, 40-41, 124 Cal.Rptr. 852 (1975). Plaintiffs filed the… Read More
In Roybal v. Equifax, Judge England issued three separate opinions addressing liability of furnishers and credit reporting agencies. In Roybal v. Equifax, 2008 WL 453447 (E.D.Cal. 2008), Judge England addressed the CRAs for publishing allegedly inaccurate credit information about the plaintiff. First, Judge England allowed a wife to pursue a claim for inaccuracies in the husband's credit report: The… Read More
In Boyle v. Arrow Financial Services, LLP, 2008 WL 4447727 (N.D.Cal. 2008), Judge Hamilton addressed whether a debt collector violates the FDCPA by including the following language in a collection letter: The letter also stated: “As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting… Read More
United States District Court Judge David Carter recently approved a sweeping class action settlement under which the three credit reporting agencies have agreed to scrub historical data regarding bankrupt debtors. White v. Experian, et. al. Case No. SACV 05-1070 DOC (MLGx) (C.D.Cal. 2008) Essentially, the CRAs typically would remove pre-bankruptcy debts from consumers' credit files only if the furnishers updated… Read More
Reminder: FACTA Red Flag Rules become mandatory November 1, 2008. From the FTC's website: The Federal Trade Commission (FTC), the federal bank regulatory agencies, and the National Credit Union Administration (NCUA) have issued regulations (the Red Flags Rules) requiring financial institutions and creditors to develop and implement written identity theft prevention programs, as part of the Fair and Accurate Credit… Read More
