Consumer Finance

In Carter v. Richland Holdings, No. 2:16-cv-02967-RFB-VCF, 2019 U.S. Dist. LEXIS 168010, at *12-15 (D. Nev. Sep. 30, 2019), the District Court granted summary judgment against an FDCPA Plaintiff. AcctCorp argues that it was not reporting the debt in connection to an attempt to collect the debt pursuant to 15 U.S.C. § 1692e, but to comply with the Fair Credit… Read More

In Sliwa v. Bright House Networks, No. 2:16-cv-235-FtM-29MRM, 2019 U.S. Dist. LEXIS 167805, at *56-63 (M.D. Fla. Sep. 27, 2019), the District Court denied class certification. Plaintiff identifies the following common questions of law or fact which he asserts will predominate over any individualized issues: whether (1) an automatic telephone dialing system or prerecorded voice technology was used; (2) Defendants'… Read More

In DeNova v. Ocwen Loan Servicing, LLC, No. 8:17-cv-2204-T-23AAS, 2019 U.S. Dist. LEXIS 163014 (M.D. Fla. Sep. 24, 2019), Judge Merryday overruled the Magistrate’s ruling that an Aspect dialing system was an ATDS. Denise DeNova alleges (Doc. 2) that between April 2013 and May 2016, Ocwen Loan Servicing, attempting to collect DeNova's delinquent mortgage, used an "Aspect predictive dialing system"… Read More

On Wednesday, Californians for Consumer Privacy, the official proponent of the ballot initiative that became the California Consumer Privacy Act (“CCPA”), announced that it had filed a new voter-sponsored initiative with the California Secretary of State that will appear on the November 2020 ballot (if the requisite number of signatures can be gathered and certified).  The initiative, named the “California… Read More

In Bitzko v. Weltman, No. 1:17-CV-00458 (BKS/DJS), 2019 U.S. Dist. LEXIS 161495 (N.D.N.Y. Sep. 23, 2019), the District Court held that having to inquire about the consumer nature of a debt from putative class members in an FDCPA class action did not defeat class certification. Defendant asserts that using its records to identify potential class members, and then asking those… Read More

In Kayyal v. Enhanced Recovery Co., No. 17 CV 2718, 2019 U.S. Dist. LEXIS 161475 (N.D. Ill. Sep. 23, 2019), the District Court denied summary judgment to a debt collector who as alleged to have harassed a wrong-number customer. Distilled to its essence, the parties disagree about whether ERC called Kayyal after being told it had the wrong number and… Read More

In Gonzalez v. Sallie Mae Bank, No. 18cv2457, 2019 U.S. Dist. LEXIS 157007, at *3-5 (S.D. Cal. Sep. 12, 2019), Judge Burns held that a debt collector must meet the definition of a debt collector under the FDCPA, not just "hold out" inferences that it might be one. SMB points out that it is a lender, not a debt collector… Read More

They used to write the Official Staff Commentary, and give "Informal Staff Opinion" letters to industry to assist industry in complying with the FDCPA.  Now, the FTC has filed a Comment in response to the CFPB's Notice of Proposed Rulemaking that can be found at https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-federal-trade-commissions-bureau-consumer-protection-matter-proposed-rule-request/final_-_cfpb_debt_coll_draft_comment_9-13_v2_1pm_ver_to_comm.pdf  The FTC devotes almost half of their comment to reminding the CFPB that the… Read More

The Firm’s depth and expertise in consumer privacy has been recognized through the publication of two of the definitive practice guides on privacy in California and on the California Consumer Privacy Act. Joe Guzzetta in the Firm’s San Francisco Office was retained by The Rutter Group to publish its California Practice Guide on Privacy Law, which is an in depth… Read More

In Smith v. Premier Dermatology, No. 17 C 3712, 2019 U.S. Dist. LEXIS 152887 (N.D. Ill. Sep. 9, 2019), Judge Alonso found that no ATDS was used to send text messages and granted summary judgment against a TCPA Plaintiff. While this Court might quibble with the grammatical analysis of Pinkus in some particulars, it agrees with its central insight that… Read More

In In re Facebook, Inc., No. MDL No. 2843, 2019 U.S. Dist. LEXIS 153505 (N.D. Cal. Sep. 9, 2019), Judge Chhabria allowed some claims to proceed against Facebook arising out of the Cambridge Analytica scandal. Facebook's motion to dismiss is littered with assumptions about the degree to which social media users can reasonably expect their personal information and communications to… Read More

In Brown v. Ocwen Loan Servicing Llc, No. 8:18-cv-136-T-60AEP, 2019 U.S. Dist. LEXIS 151236, at *11-15 (M.D. Fla. Sep. 5, 2019), Judge Barber granted in part and denied in part summary judgment brought by a TCPA defendant, distinguishing between pre-recorded and non-prerecorded calls. Ocwen contends summary judgment on the Browns' TCPA claims is warranted because its Aspect dialer is not… Read More

In Berman v. Freedom Fin. Network, No. 18-cv-01060-YGR, 2019 U.S. Dist. LEXIS 150810, at *3 (N.D. Cal. Sep. 4, 2019), Judge Gonzalez-Rogers found no good faith defense to a TCPA claim. The alleged facts were as follows: In the instant action, plaintiff Daniel Berman, on behalf of himself and a putative class, alleges violations of the Telephone Consumer Protection Act… Read More

In Franklin v. Navient Corp., Civil Action No. 17-1640-RGA, 2019 U.S. Dist. LEXIS 150902, at *14-19 (D. Del. Sep. 5, 2019), the District Court declined to follow the Second Circuit's Reyes decision. The Court turns next to the calls placed [*15]  to Plaintiff prior to the November 2015 TCPA amendment. The evidence of record indicates that in each of Plaintiff's deferment requests,… Read More

In Jackling v. HSBC Bank USA, N.A., No. 15-CV-6148-FPG, 2019 U.S. Dist. LEXIS 146675, at *6-7 (W.D.N.Y. Aug. 28, 2019), Judge Geraci granted a furnisher's motion in limine to limit damages. In its First Motion in Limine, HSBC argues that Jackling should be precluded from introducing evidence on damages related to the Dorschel Toyota credit denial because Dorschel denied him… Read More

In Morgan v. On Deck Capital, No. 3:17-CV-00045, 2019 U.S. Dist. LEXIS 147757, at *3-4 (W.D. Va. Aug. 29, 2019), Judge Moon denied summary judgment to a TCPA defendant who argued that 'manual mode' of a dialer system disqualified the system from being an ATDS.  The facts were as follows: Defendant On Deck Capital is an online lender that offers financing… Read More

In Swl v. Nextgear Capital, No. 18A-CC-2955, 2019 Ind. App. LEXIS 387, at *14-19 (Ct. App. Aug. 28, 2019), the Court of Appeals held that the trial court should not have granted summary judgment to a floorplan lender against the dealer on the dealer's promissory estoppel claim. Dealer also asserts that the trial court erred when it entered summary judgment… Read More

In Norton v. Lvnv Funding, No. 18-cv-05051-DMR, 2019 U.S. Dist. LEXIS 146863, at *15-16 (N.D. Cal. Aug. 28, 2019), Magistrate Judge Ryu held that equivocal pleading of a debt's consumer nature survived an FRCP 12(b)(6) motion. Defendants essentially argue that a plaintiff's allegations about consumer debt must be unequivocal and ironclad in order to withstand a Rule 12 challenge. This… Read More

Interpreting eleven (11) declarations from attorneys' on both sides of the FDCPA bar, Magistrate Judge Beeler reduced the rates sought by the Plaintiff's counsel in an FDCPA case in Bidwal v. Unifund Ccr, No. 3:17-cv-02699-LB, 2019 U.S. Dist. LEXIS 147004, at *17-23 (N.D. Cal. Aug. 27, 2019).  The facts and outcome were summarized by the Court. The plaintiff defaulted on… Read More

In Tims v. Lge Cmty. Credit Union, No. 17-14968, 2019 U.S. App. LEXIS 25731, at *2-8 (11th Cir. Aug. 27, 2019), the Court of Appeals for the Eleventh Circuit found an EFTA violation based on an ambiguous opt-in notice and the Credit Union's practice of applying an "available balance" method rather than a "ledger" method. The facts were as follows:… Read More