In Zablocki v. Merchs. Credit Guide Co., No. 19-2045, 2020 U.S. App. LEXIS 23737 (7th Cir. July 28, 2020), the Court of Appeals dismissed an FDCPA claim premised on a debt collectors failure to aggregate debts into a single account when reporting to the CRAs. Viewing Merchants's separate reporting of debts from the perspective of an unsophisticated but reasonable… Read More
In Caplan v. Budget Van Lines, No. 2:20-CV-130 JCM (VCF), 2020 U.S. Dist. LEXIS 136865 (D. Nev. July 31, 2020), Judge Mayan denied a ringless technology defendant’s motion to dismiss a TCPA claim The second issue is whether RVMs constitute calls under the TCPA. RVM technology allows a message to be placed in a recipient's voicemail without the recipient's… Read More
In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043, 2020 U.S. App. LEXIS 23935 (6th Cir. July 29, 2020), the Court of Appeals for the Sixth Circuit followed Mark’s interpretation of the TCPA as to what constitutes an auto dialer. Here, again, we agree with the Second and Ninth Circuits [*15] that the structure and context of the autodialer ban support… Read More
In Molinari v. Fin. Asset Mgmt. Sys., No. 18 C 1526, 2020 U.S. Dist. LEXIS 134045 (N.D. Ill. July 29, 2020), Judge Ellis denied class certification in a TCPA/FDCPA class action Under Rule 23(a)(2), a party seeking class certification must show commonality by identifying "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "The key… Read More
In Ruiz v. Hunt & Henriques, No. D075286, 2020 Cal. App. Unpub. LEXIS 4847 (July 29, 2020), in the context of an anti-SLAPP motion brought by the debt collection law firm, the Court of Appeal found that a debtor need not dispute the debt to challenge the amount of the debt stated. Hunt alternatively argues that Ruiz cannot recover under… Read More
In Cooper v. Atl. Credit & Fin., No. 19-12177, 2020 U.S. App. LEXIS 23719 (11th Cir. July 28, 2020), the Court of Appeals for the 11th Circuit found no Article III standing for an overshadowing claim under the FDCPA. Here, Cooper's alleged injuries are just as inchoate, if not more so. She does not allege that, without the purportedly confusing… Read More
In Ward v. Npas, Inc., No. 3:19-cv-00484, 2020 U.S. Dist. LEXIS 132461 (M.D. Tenn. July 27, 2020), Judge Trauger ruled in favor of a medical debt servicer, who relied on the FDCPA’s exemption for debts not in default at the time of the assignment in order to prevent application of the FDCPA. The District Court adopted the Second Circuit’s approach… Read More
In Holland v. Chase Bank United States, 2020 U.S. Dist. LEXIS 133642 (S.D.N.Y. July 28, 2020), Judge Engelmayer dismissed an FCRA claim against a Furnisher for absence of an “inaccuracy”, holding that Plaintiff’s claim that the debt was extinguished by the statute of limitations did not render the reporting of the debt inaccurate. Here, Holland asserts that Chase's furnishing of… Read More
In Kylie S. v. Pearson Plc, No. 19 C 5936, 2020 U.S. Dist. LEXIS 133299 (N.D. Ill. July 28, 2020), Judge Lee dismissed a data breach class action for absence of Article III standing. The facts were as follows: Sometime in late 2018, hackers penetrated AIMSweb's defenses and gained access to the data stored on the platform. Am. Compl. ¶… Read More
In Chuluunbat v. Cavalry Portfolio Servs., LLC, No. 20 C 164, 2020 U.S. Dist. LEXIS 128931 (N.D. Ill. July 22, 2020), Judge Kocoras granted a furnisher’s motion to dismiss an FCRA claim. Given these letters, Cavalry argues that it was required to do nothing further than what it had already done to comply with its obligations under Section 1681s-2(b). Chuluunbat… Read More
In Webster v. Receivables Performance Mgmt., No. 1:18-cv-03940-TWP-DML, 2020 U.S. Dist. LEXIS 128233 (S.D. Ind. July 21, 2020), Judge Walton Pratt found that a debt collector violated the FDCPA by failing to report an account as ‘disputed’ despite the fact that the consumer did not dispute the debt within the 30-day validation period and despite the consumer’s faxing a dispute… Read More
In Blahous v. Sarrell Reg'l Dental Ctr. for Pub. Health, Inc., No. 2:19-cv-798-RAH-SMD, 2020 U.S. Dist. LEXIS 125394 (M.D. Ala. July 16, 2020), Judge Huffaker dismissed a data breach case due to absence of compensable loss. The facts were as follows: For many, the phrase "data breach" provokes dread and invokes disquiet. Suddenly, a person's once private information roams untrammeled,… Read More
In In re Sonic Corp. Customer Data Sec. Breach Litig., No. 1:17-md-2807, 2020 U.S. Dist. LEXIS 114891 (N.D. Ohio July 1, 2020), Judge Gwin allowed a negligence claim to stand in a data breach case against Sonic. The facts were as follows. Sonic restaurants are largely franchisee-owned. Sonic Defendants only directly own about 6% of Sonic restaurants. However, Sonic exerts… Read More
In Thomas v. Kimpton Hotel & Rest. Grp., No. 19-cv-01860-MMC, 2020 U.S. Dist. LEXIS 114170 (N.D. Cal. June 30, 2020), Judge Chesney dismissed part(s) of a data breach claim. The facts were as follows: In the operative complaint, the Third Amended Complaint ("TAC"), plaintiffs allege Kimpton, an entity that "own[s] or manage[s]" a number of hotels (see TAC ¶ 1),… Read More
In Loi Nguyen v. House of Imps., Nos. G056789, G057216, 2020 Cal. App. Unpub. LEXIS 4006, at *2 (June 25, 2020), the Court of Appeal affirmed a jury trial verdict in favor of a car dealer. The Court had some words for the appellant's briefing. The appellant has the duty to fairly summarize all of the facts in the light… Read More
In Newger v. First Contact, No. 1:20-cv-00039-SNLJ, 2020 U.S. Dist. LEXIS 107348 (E.D. Mo. June 18, 2020), the District Court found that an arbitration award in favor of a consumer’s creditor could be used by the debt collector to estop the consumer from bringing new claims. In this case, there is no serious dispute that the arbitral award dispensed of… Read More
We wrote about this issue last year, although the issue remains somewhat unsettled. (https://www.severson.com/hyman-s-j-and-figueroa-k-contribution-and-indemnity-for-wrong-number-calls-under-the-telephone-consumer-protection-act-vol-73-conf-cons-fin-l-q-84-fall-2019/) In Anthony v. Progressive Leasing, No. 1:19-cv-04431-TWP-MJD, 2020 U.S. Dist. LEXIS 105846, at *5-8 (S.D. Ind. June 16, 2020), the District Court declined to allow a counter-claim for indemnity against a TCPA's Plaintiff's spouse who allegedly had provided the number. In her complaint, Plaintiff brings a… Read More
In Walker v. Westlake Fin. Servs., No. 19 C 6921, 2020 U.S. Dist. LEXIS 105794 (N.D. Ill. June 17, 2020), Judge Kendall permitted an FDCPA/TCPA defendant to file a counter-claim on the debt back against the Plaintiff. Walker, however, takes too narrow a view and disregards several relevant facts. Here, Westlake's claim involves "the same parties, contracts, and course of… Read More
On June 16, 2020, the Consumer Financial Protection Bureau (Bureau) released a series of Frequently Asked Questions (FAQs) regarding furnishers and credit reporting agencies (CRAs) obligations under the CARES Act. Here is a link to the FAQs: https://files.consumerfinance.gov/f/documents/cfpb_fcra_consumer-reporting-faqs-covid-19_2020-06.pdf Most critically, the FAQs clarified that when enforcing the amendments to FCRA under the CARES Act, the Bureau "expects furnishers and consumer… Read More
In Hill v. CAG2 of Tuscaloosa, LLC, No. 7:19-cv-02044-LSC, 2020 U.S. Dist. LEXIS 104442 (N.D. Ala. June 15, 2020), Judge Coogler held that a car dealer was stuck with an adverse arbitration award. The facts were as follows: On January 9, 2019, Plaintiffs filed their Demand for Arbitration against Carlock, alleging violations of the Truth in Lending Act, 15 U.S.C.… Read More
