In Dotson v. Ally Fin., No. 2:19-cv-2274, 2019 U.S. Dist. LEXIS 193764 (W.D. Tenn. Nov. 7, 2019), the District Court said that a TCPA defendant could not file a counter-claim in federal court against a TCPA Plaintiff. Nothing prevents Ally from suing Dotson in state court. A state court judgement may be used as a set-off to any judgment Dotson… Read More
In Koehler v. Waypoint Res. Grp., No. 8:18-cv-2071-T-60AAS, 2019 U.S. Dist. LEXIS 191438 (M.D. Fla. Nov. 5, 2019), the District Court held that a debt collector’s reporting of a cable bill to the CRAs did not trigger the FDCPA. All of Koehler's FDCPA claims are based on Waypoint's error in reporting the original creditor as "Charter Communications" rather than "Bright… Read More
In Persinger v. Sw. Credit Sys., No. 1:19-cv-00853-RLY-MJD, 2019 U.S. Dist. LEXIS 188920, at *9 (S.D. Ind. Oct. 30, 2019), the Defendant was sued in a class action for accessing a consumer's credit report after the consumer's account had been discharged in bankruptcy; i.e. that the defendant had no permissible purpose in accessing the consumer report for account review purposes… Read More
In Nayab v. Capital One Bank USA, No. 17-55944, 2019 U.S. App. LEXIS 32575, at *24-32 (9th Cir. Oct. 31, 2019), the Court of Appeals for the Ninth Circuit found that an FCRA Plaintiff met the Spokeo and Iqbal/Twombly standards for pleading a "Permissible Purpose" action under the FCRA. Nayab has pleaded facts sufficient to give rise to a reasonable… Read More
In Timmons v. SunTrust Bank, No. A19A1262, 2019 Ga. App. LEXIS 547, at *1-6 (Ct. App. Oct. 9, 2019), the Georgia Court of Appeals held that an auto finance lender was not a holder-in-due-course, but instead was subject to the FTC Holder Rule contained in the RISC. [O]n July 9, 2015, the Plaintiffs purchased a 2015 GMC Sierra from the… Read More
In Kalta v. Fleets 101, No. B292185, 2019 Cal. App. LEXIS 1060 (Ct. App. Oct. 29, 2019), the Court of Appeal affirmed the trial court’s finding that the Plaintiff was a “consumer” under the CLRA. Defendant does not tell us the standard of review; does not summarize the facts, detailed ante, supporting a finding that the vehicle was purchased for… Read More
In Berroteran v. Superior Court, No. B296639, 2019 Cal. App. LEXIS 1065 (Ct. App. Oct. 29, 2019), the Court of Appeal permitted admission of prior deposition testimony from an automobile manufacturer’s employee where the manufacturer allegedly had motive and opportunity to examine their own witness in the prior case(s). Except for Wahlgren, California law is consistent with federal law. Section… Read More
In Rodriguez v. Trans Union Llc & Santander Cosumer United States, No. 1:19-CV-379-LY, 2019 U.S. Dist. LEXIS 186016 (W.D. Tex. Oct. 28, 2019), Magistrate Judge Yeakel found no inaccuracy in how a closed automobile account was being reported. The Plaintiff claimed that her credit report erroneously stated that she owed a monthly payment of $345 on an account (the "Santander Account")… Read More
In Bank of Am., N.A. v. Byrd, No. G056792, 2019 Cal. App. Unpub. LEXIS 7176 (Oct. 28, 2019), Bank of America, N.A. (the Bank) sued Pamela K. Byrd to recover over $32,000 in credit card debt. The trial court found the Bank's last credit card statement to Byrd constituted a final rendering of the account, and Byrd impliedly agreed to pay… Read More
In Gonzalez v. Ford Motor Co., No. LA CV 19-00652 PA (ASx), 2019 U.S. Dist. LEXIS 185279 (C.D. Cal. Oct. 23, 2019), Judge Anderson held that a vehicle manufacturer need not reimburse the consumer for negative equity financed into the RISC. Finally, Plaintiff argues Ford's repurchase offer was "less than 50% the amounts he had paid for the vehicle." (P.… Read More
In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2019 U.S. Dist. LEXIS 183886, at *9 (D. Mass. Oct. 23, 2019), Judge Gorton denied class certification of a TCPA wrong-number class. Implicit in Rule 23 is consideration of whether the identification of potential class members is "administratively feasible." Shanley v. Cadle, 277 F.R.D. 63, 67 (D. Mass. 2011). All… Read More
In In re Ferreira, No. 18-5264, 2019 Bankr. LEXIS 3342, at *6-8 (Bankr. N.D. Ga. Oct. 24, 2019), the Bankruptcy Court found no fiduciary duty between a floorplan lender and dealer. A number of courts have considered whether contracts in a floor planning relationship create such a technical trust. As the bankruptcy court explained in VW Credit, Inc. v. Salim… Read More
In Johnson v. Capital One Servs., LLC, No. 18-cv-62058-BLOOM/Valle, 2019 U.S. Dist. LEXIS 178160, at *3-4 (S.D. Fla. Oct. 15, 2019), Judge Bloom found a TCPA Plaintiff's handwritten call-logs to be admissible as a party-opponent admission. (For you trial lawyers out there, they probably could at least have been referred to under FRE 612 to refresh the witness' recollection, anyway).… Read More
In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim. To "make" a call under the TCPA the person must either (1) directly make the call, or (2) have an agency… Read More
In Zabriskie v. Fannie Mae, Nos. 17-15807, 17-16000, 2019 U.S. App. LEXIS 30147, at *14-17 (9th Cir. Oct. 8, 2019), the Court of Appeals for the Ninth Circuit held that Fannie Mae is not a consumer reporting agency. The facts were as follows: Fannie Mae is a government-sponsored entity that Congress created in 1938. Its mission is to provide liquidity… Read More
In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842, at *12-14 (C.D. Cal. Oct. 9, 2019) , Judge Wright held that LiveVox' manual dial requirement disqualified it from being an ATDS, and nothing in Marks changes that conclusion. The parties agree that all calls DAS placed to Ammons's 3436 Cell Phone used LiveVox HCI. (DSUF… Read More
The CCPA enacted in 2018, creates new consumer rights relating to the access to, deletion of, and sharing of personal information that is collected by businesses. It also requires the California Attorney General to solicit broad public participation and adopt regulations to further the CCPA’s purposes. Today, the AG issued proposed regulations designed to establish procedures to facilitate consumers’ new… Read More
In Nagan v. Optio Sols. Llc, No. 19-C-170, 2019 U.S. Dist. LEXIS 173286, at *7 (E.D. Wis. Oct. 4, 2019), the District Court held that an FDCPA class could be certified despite the fact that the classmember would receive almost nothing. Optio asserts that a class action is not the superior method of litigating the issues here because any amount… Read More
In Bodie v. Lyft, Inc., No. 3:16-cv-02558-L-NLS, 2019 U.S. Dist. LEXIS 172998, at *6-7 (S.D. Cal. Oct. 4, 2019) , Judge Lorenz found "use" of an ATDS adequately pleaded. In addressing the second issue, the Ninth Circuit clarified that a total lack of human intervention was not required for a device to qualify as an ATDS. Marks, 904 F.3d at… Read More
In Koehn v. Delta Outsource Group, Inc., No. 19-1088 (7th Cir. September 29, 2019), here, the Court of Appeals for the Seventh Circuit had had enough with ingenious interpretations of dunning letters to create a purported violation of the FDCPA. An unsophisticated consumer is “uninformed, naïve, or trusting,” Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir. 2003), but nonetheless… Read More
