Consumer Finance

In Francisco v. Midland Funding, LLC, No. 17 C 6872, 2019 U.S. Dist. LEXIS 42349 (N.D. Ill. Mar. 15, 2019), Judge Lefkow held that unclean hands are not an affirmative defense to an FDCPA section 1692e(8) claim even where the debtor’s attorney allegedly timed the dispute letter to coincide with the debt collector’s bi-monthly credit reporting. Because the unclean hands defense… Read More

In Auto. Fin. Corp. v. Nunez (In re Nunez), Nos. 17-33845-hdh7, 18-03004, 2019 Bankr. LEXIS 824 (Bankr. N.D. Tex. Mar. 15, 2019), Judge Hale denied a Floorplan lender’s non-dischargeability claim. The Plaintiff alleges that the Defendant committed fraud in securing advances from the Plaintiff and by transferring the Secured Vehicles without being paid in full. The Plaintiff also alleges the… Read More

In Folkerts v. Seterus, Inc., No. 17 C 4171, 2019 U.S. Dist. LEXIS 42347 (N.D. Ill. Mar. 15, 2019), Judge Zee found that manually dialed calls did not involve the use of an ATDS under the TCPA. Plaintiffs have failed to point to any evidence that either SynTelate or the manual phone has that capacity. Certainly, once the Avaya Proactive… Read More

Today, the FCC issued its 2018 Privacy and Data Security Update, a compendium for attorneys, business executives, and others who are long on interest, but short on time. It summarizes the seven zones that were central to the FTC’s 360° approach in 2018.  The Report can be found in embedded links with the FCC’s press release today. https://www.ftc.gov/news-events/blogs/business-blog/2019/03/ftcs-2018-privacy-data-security-update-what-it-means-your?utm_source=govdelivery Read More

In Eckhardt v. State Farm Bank FSB, No. 1:18-cv-01180, 2019 U.S. Dist. LEXIS 40196 (C.D. Ill. Mar. 12, 2019), Judge McDade found that State Farm Bank properly treated a Plaintiff’s purchase of cryptocurrency on his State Farm credit card as a cash-advance subject to cash advance fees rather than as a purchase of goods. The facts were as follows: Plaintiff… Read More

SCOTUS is using a TCPA case to decide whether the Hobbs Act requires district courts to accept the FCC’s pronouncements on the TCPA in PDR Network, LLC v. Carlton & Harris Chiropractic Inc., Docket No. 17-1705.  On November 13, 2018, the SCOTUS granted certiorari after the Court of Appeals for the Fourth Circuit vacated a district court opinion on what… Read More

On March 5, 2019, the California Attorney General held the seventh and final public forum regarding its rulemaking authority under the California Consumer Privacy Act of 2018 (the “CCPA”) at Stanford Law School in Palo Alto, California.  The forum was well-attended, with approximately 50-75 attendees, 26 of whom spoke at the forum.  The forum was hosted by three representatives from the… Read More

The CFPB just issued it’s Supervisory Highlights, paying particular attention to automobile finance and issues regarding ancillary products. The Bureau continues to examine auto loan servicing activities, primarily to assess whether servicers have engaged in unfair, deceptive, or abusive acts or practices (UDAAPs) prohibited by the Consumer Financial Protection Act of 2010 (CFPA). Recent auto loan servicing examinations identified unfair… Read More

The Court should have just denied class cert.  But, having already certified a class, the Court had to then wrestle with a class notice with regard to an unascertainable class.  In Lavigne v. First Cmty. Bancshares, Inc., No. 1:15-cv-00934-WJ/LF, 2019 U.S. Dist. LEXIS 37724 (D.N.M. Mar. 7, 2019), Judge Johnson ignored those errors in the process and allowed a “reverse-lookup”… Read More

In Kolbasyuk v. Capital Mgmt. Servs., LP, No. 18-1260-cv, 2019 U.S. App. LEXIS 7204 (2d Cir. Mar. 12, 2019), the Court of Appeals for the Second Circuit affirmed judgment in favor of a debt collector as to the manner in which the collector stated the amount of the debt in its debt validation letters. Plaintiff-Appellant Yuri Kolbasyuk received a debt… Read More

In Rainer v. Experian Info. Solutions, Inc., 2019 U.S. Dist. LEXIS 39217 (D.Utah. March 11, 2019), Judge Sam denied an FCRA Plaintiff’s motion for summary judgment relating to how the Furnisher reported the Plaintiff’s Account through and after the Plaintiff’s Chapter 13 bankruptcy.  In 2008, Plaintiff borrowed $4,500 from Grantsville Federal Credit Union. AUFCU became the owner of Plaintiff's account… Read More

The Federal Trade Commission is seeking comment on proposed amendments to two rules that protect the privacy and security of customer information held by financial institutions. In separate notices to be published in the Federal Register, the FTC is seeking comment on proposed changes to the Safeguards Rule and the Privacy Rule under GLBA.  The Safeguards Rule requires a financial… Read More

In Westbrook v. Nasa Fed. Credit Union, No. 3:17-cv-00534-AKK, 2019 U.S. Dist. LEXIS 35420 (N.D. Ala. Mar. 6, 2019), Judge Kallon granted summary judgment to a repossession agency.  First, Judge Kallon adopted the majority view that breach of the peace deprives the taker of the right to possession of the property and not vice versa. T4SR argues that its "present… Read More

In Gomes v. Portfolio Recovery Assocs., LLC, No. 18-21872-CIV, 2019 U.S. Dist. LEXIS 32116 (S.D. Fla. Feb. 28, 2019), Judge Altonaga denied class certification in an FDCPA class action. Defendant asserts the damages component of the case will require examination of individualized issues. According to Defendant, Plaintiff and each class member will necessarily have the burden of proving Defendant's collection… Read More

In Duran v. La Boom Disco, Inc., No. 17-cv-6331 (ARR) (CLP), 2019 U.S. Dist. LEXIS 30012 (E.D.N.Y. Feb. 25, 2019), Judge Duran sua sponte granted summary judgment to a TCPA defendant based on its absence of use of a ATDS. The Second Circuit, however, only analyzed the meaning of "capacity" under "the statutory language itself." As discussed earlier, the court… Read More

In Barbato v. Greystone All., No. 18-1042, 2019 U.S. App. LEXIS 5336 (3d Cir. Feb. 22, 2019), the Court of Appeals for the Third Circuit imposed vicarious FDCPA liability on a debt buyer who outsourced its debt collection activities.  The appeal is concerned whether an entity that acquires debt for the "purpose of . . . collection" but outsources the… Read More

In In re Ocwen Loan Servicing LLC Litig., No. 3:16-cv-00200-MMD-WGC, 2019 U.S. Dist. LEXIS 25968 (D. Nev. Feb. 19, 2019), Judge Du found that a mortgage company had a permissible purpose to ‘soft’ pull a consumer report post-bankruptcy discharge.  The facts were as follows. Plaintiffs are Christopher Marino, Henry L. Farrin, Jr., Joshua E. Hardin, Kristen Hardin, Dionne Horton, Deonca… Read More

In Chinitz v. NRT W., Inc., No. 18-cv-06100-NC, 2019 U.S. Dist. LEXIS 27134 (N.D. Cal. Feb. 20, 2019), Judge Cousins denied a motion to dismiss a TCPA class action that asserted that pre-recorded calls violated the TCPA. Applying the prerecorded message rule turns on the purpose of the message, "not on the caller's characterization of the call." Chesbro, 705 F.3d at… Read More

On February 20, 2019, the Attorney General’s Privacy Unit testified before the California State Assembly, requesting, among other things, that the CaCPA be amended to eliminate the safe harbor and to allow broader private rights of action.  We previously reported on that testimony here:  https://www.severson.com/consumer-finance/california-ag-takes-hard-line-on-ccpa-tells-california-assembly-to-broaden-private-rights-of-action-and-to-eliminate-safe-harbor/).  On February 22, 2019, California State Senator Hannah-Beth Jackson (D – Santa Barbara) answered the… Read More

On Wednesday, February 20, 2019, Stacey D. Schesser, the Supervising Deputy Attorney General for California Attorney General Xavier Becerra’s Privacy Unit of the Consumer Law Section, spoke to the Committee on Privacy and Consumer Protection of the California State Assembly, which is examining potential amendments to the California Consumer Privacy Act of 2018 (the “CCPA”), California’s sweeping consumer privacy law… Read More