In Sanders v. LoanCare LLC, No. 18-CV-09376, 2019 U.S. Dist. LEXIS 20900, at *2-3 (C.D. Cal. Feb. 1, 2019), Judge Otero addressed, albeit in a mortgage situation, whether the collection of an online payment fee during a 10-day grace period triggered the Rosenthal Act. The facts were as follows: In February 2018, Plaintiff received a Notice of Service Transfer ("Notice")… Read More
On February 14, 2019, the FCC proposed rules banning illegal spoofed text messages and international calls. The proposed rules would enable the FCC to address consumer concerns about unwanted text messages and scam calls from overseas. The Truth in Caller ID Act of 2009 prohibits anyone from transmitting misleading or inaccurate caller ID information (“spoofing”) with the intent to defraud,… Read More
In Blair v. Rent-A-Center, Inc., No. C 17-02335 WHA, 2019 U.S. Dist. LEXIS 21988 (N.D. Cal. Feb. 11, 2019), Judge Alsup granted summary judgment to a merchandise lessor against a class action plaintiff’s claim that the contracts were disguised security agreements subject to usury. The allegations were as follows: Defendants Rent-A-Center, Inc. and Rent-A-Center West, Inc. (collectively "RAC") maintained rent-to-own… Read More
In McCray v. Deitsch & Wright, No. 8:18-cv-731-EAK-SPF, 2019 U.S. Dist. LEXIS 23516 (M.D. Fla. Feb. 11, 2019), Judge Kovachevisch found that a 30-day validation letter overshadowed the debtor’s validation rights by including language stating that “Be advised if we do not receive payment promptly we will be forced to take additional action to recover the subject amounts.” After a… Read More
In Bauman v. Saxe, No. 2:14-cv-01125-RFB-PAL, 2019 U.S. Dist. LEXIS 23351 (D. Nev. Feb. 13, 2019), Judge Boulware found that a TCPA plaintiff stated a claim against Twilio, who allegedly transmitted telemarking text messages in violation of the TCPA. The facts alleged were as follows: The Saxe Defendants are: David Saxe; David Saxe Productions, Inc.; David Saxe Productions, LLC; Saxe Management,… Read More
In Red Barn Motors, Inc. v. Nextgear Capital, Inc., No. 18-1409, 2019 U.S. App. LEXIS 4303 (7th Cir. Feb. 13, 2019), the Court of Appeals for the Seventh Circuit remanded for further proceedings the District Court’s de-certification of a class action against a Floorplan Lender. We previously reported on the District Court’s opinion here: https://www.severson.com/consumer-finance/district-court-ind-says-floorplan-lender-hoisted-car-dealer-class-representative-petard-floorpan-agreement-ambiguous-individualized-proof-intent-intrinsic-evidence-req/ The facts were as follows: The… Read More
In Gutierrez v. Portfolio Recovery Assocs., No. CV 18-9890 DSF (RAOx), 2019 U.S. Dist. LEXIS 18553 (C.D. Cal. Feb. 1, 2019), Judge Fischer said that a debt collector does not bear exposure to a private FDCPA litigant when the debt collector acts pursuant to a consent decree with the CFPB. The most persuasive argument is that because a consent decree… Read More
Modern payments law has centuries-old roots. In 1762 the Court of King’s Bench in England articulated the “final payment rule” in the case of Price v. Neal, 97 Eng. Rep. 871 (1762). This rule, which places the loss on the drawee (or payor bank) for checks not authorized by the drawer, has been codified in the Uniform Commercial Code (“UCC”).… Read More
In Moser v. Health Insurance Innovations, Inc., No. 17CV1127-WQH(KSC), 2018 WL 6735710 (S.D. Cal. 2018), the District Court denied a TCPA defendant’s motion to allow an inspection of the plaintiff’s electronic device(s). “Forensic examination is generally regarded as a drastic step....” Motorola Solutions., Inc. v. Hytera Commc’ns Corp., 314 F. Supp. 3d 931, 939 (N.D. Ill. 2018). . . . Here,… Read More
In Wilson v. Babcock Home Furniture, No. 8:17-C-02739-T-02AAS, 2018 WL 6660029 (M.D. Fla. December 19, 2018), Judge Jung denied class certification in a TCPA “wrong-number” class due to lack of ascertainability or common questions of law/fact. At the most fundamental level, the parties’ experts dispute the precise amount of “wrong numbers.” Based on Plaintiff’s analysis, Defendant made 8,253 calls marked… Read More
In Richardson, et. al., v. Verde Energy USA, Inc., Civ. No. 15-6325, 2018 WL 6622996 (E.D. Pa. December 17, 2018), Judge Beetlestone declined to follow the 9th Circuit’s decision in Marks, and found that Defendants predictive dialer was not an ATDS under the TCPA. A careful parsing of ACA International indicates that the invalidation of the 2015 Order necessarily invalidated… Read More
In Suriano v. French Riveria Health Spa, Inc., Civ. No. 18-9141, 2018 WL 6702749 (E.D. La. December 20, 2018), Judge Lemmon found that text messages were information only and not advertisements. Therefore, the sender did not violate the TCPA. At the outset, messages one, two, and five are plainly informational in nature. The first (sent the day after plaintiff joined)… Read More
In Ngo v. PMGI Financial, et. al., DARRIN NGO, 2018 WL 6618316, at *7–9 (N.D.Cal., 2018), Judge Spero held that a creditor's filing a superior court collection action did not prevent sending the matter to arbitration, but the debtor remained free to assert waiver to the arbitrator. Ngo contends that Defendants waived their right to demand arbitration by filing a… Read More
In Gonzalez v. Ocwen Loan Servicing, LLC., 2018 WL 6653297, at *1–2 (M.D.Fla., 2018), the District Court denied a TCPA Plaintiff's request for an on-site inspection of the Defendant's facilities. Plaintiff moves to compel an on-site inspection of Defendant’s telephone dialing system. Plaintiff states that such an inspection pursuant to Fed. R. Civ. P. 34(a) is necessary because Plaintiff’s burden… Read More
In Bank of the West v. Champion Chrysler Jeep Dodge, 2018 WL 6520944, at *4 (Cal.App. 2 Dist., 2018), in an unpublished decision, the Court of Appeal affirmed a verdict in favor of a bank against an automobile dealer under a Master Dealer Agreement. Dealer contends that by at least September 11, 2012, Bank had actual and constructive knowledge that… Read More
In Izett v. Crown Asset Management, LLC., 2018 WL 6592442, at *4–5 (N.D.Cal., 2018), Judge Chen refused to strike an affirmative defense related to an FDCPA allegation that a CCP 98 declaration in the underlying state court debt collection action allegedly was false. Defendants' seventeenth affirmative defense asserts: “A debt collector does not make misrepresentations in violation of [the FDCPA]… Read More
In Phan v. Agoda Company PTE, Ltd., 2018 WL 6591800, at *4–8 (N.D.Cal., 2018), Judge Freeman granted summary judgment against a TCPA plaintiff, finding that text messages that she received were not advertisements. Though a claim under the TCPA has three elements, Agoda does not dispute that Phan satisfies the first two elements of the TCPA claim—that Agoda sent text… Read More
In Solberg v. Victim Services, Inc, dba Corrective Solutions, 2018 WL 6567072 (N.D.Cal., 2018), Judge Chhabria certified an FDCPA class, but declined to award injunctive relief under the UCL because the putative class was unlikely to be the subject of further collection activity. The plaintiffs also seek restitutionary and injunctive relief under the UCL. As an initial matter, the plaintiffs… Read More
In Foreman v. Bank of America, 2018 WL 6421873, at *1 (N.D.Cal., 2018), Judge Freeman dismissed an EFTA case based, in part, on the purported charging of stop-payment fees. This case involves a consumer's right to authorize his bank to transfer funds electronically to third parties through what is aptly named an “electronic fund transfer.” Such transfers are governed by the… Read More
In Espinoza v. Hunt & Henriquez, 2018 WL 6330895, at *2–3 (N.D.Cal., 2018), Magistrate Judge Cousins allowed a CCRAA claim past the pleadings stage. In her complaint, Espinoza alleges that Merrick violated § 1785.25(a). See Compl. ¶ 51. Thus, on the face of her complaint, Espinoza's CCRAA claim is not preempted by the FCRA. See U.S.C. § 1685t(b)(1)(F). Merrick, however,… Read More
