In Derosa v. CAC Financial Corp., Case No. 17-3189, 2018 WL 5344906 (2nd Cir. October 29, 2018), the Court of Appeals for the Second Circuit held in an unpublished decision that a dunning letter is deceptive under the FDCPA for failing to state that interest will and fees will accrue only if, in fact, interest and fees actually will and… Read More
In Lee v. Branch Banking & Trust Company, Civ No. 18-21876-CIV-Scola, 2018 WL 5633995 (S.D. Fla. Oct. 31, 2018), Judge Scola held that the SCOTUS’ decision in Bristol-Meyers did not bar the exercise of jurisdiction over non-resident putative class members in a TCPA class action. Next, BB&T argues that the Supreme Court’s recent decision in Bristol-Myers bars the Court from… Read More
In Maes v. Charter Communication d/b/a/ Spectrum Cable, 18-CV-124-JDP, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), Judge Peterson found that a TCPA adequately pleaded the use of an ATDS after ACA Int’l. Charter also contends that the court of appeals must have ruled on the 2003 order, as well as the 2015 order, because the court ruled that it… Read More
In Epps v. Earth Fare, Inc., No. 17-55413, 2018 WL 5314055 (9th Cir. October 26, 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA Plaintiff did not properly revoke consent to be called. Epps alleged that although she revoked her previous consent to receive text messages from Earth Fare, Earth Fare continued… Read More
In Self-Forbes v. Advanced Call Center Technologies, LLC, Case No. 16-15804, 2018 WL 5414613 (9th Cir. October 29, 2018), the Court of Appeals for the Ninth Circuit in an unpublished decision reversed the District Court’s grant of summary judgment to a TCPA defendant on the basis that the Plaintiff testified that she orally revoked consent to be called. We have… Read More
In Whitehead v. Ocwen Loan Servicing, LLC, Case No. 2:18-CV-470-FTM-99MRM, 2018 WL 5279155 (M.D. Fla. October 24, 2018), the District Court found that a TCPA Plaintiff pleaded enough regarding an ATDS after ACA International. Not surprisingly, since the D.C. Circuit’s opinion in ACA Int’l, courts have reached differing conclusions as to the decision’s impact on FCC Orders issued prior to… Read More
In U.S. Bank Equipment Finance v. J.W. Jones Company, LLC., et. al., 2018 WL 5312905, at *5–6 (S.D.Ind., 2018), in granting summary judgment to a floorplan lender on its contract/replevin claim, the District Court also found that the borrower owed a fiduciary duty to the floorplan lender due to the trust-relationship. The language of the Agreement meets the high bar… Read More
In Garland v. Marine Credit Union, 2018 WL 5313769, at *3–4 (E.D.Wis., 2018), Judge Griesbach dismissed an FCRA claim on the basis that there was no inaccuracy. Plaintiff claims that Defendants violated the FCRA by failing to conduct a reasonable investigation of the disputed Marine and World debts and refusing to correct the inaccurate information contained in her credit report.… Read More
In Blevins v. Premium Merchant Funding One, LLC., 2018 WL 5303973, at *2–3 (S.D.Ohio, 2018), Judge Smith allowed a DNC-TCPA case past the pleadings stage. Further, on the matter of telephone numbers used for both business and residential purposes, the FCC has “decline[d] to exempt from the do-not-call rules those calls made to ‘home-based businesses’ rather, we will review such… Read More
In McClellon v. Capital One Bank, N.A., 2018 WL 5240528, at *3–4 (W.D.Wash., 2018), Judge Coughenour dismissed an EFTA Plaintiff's claims based on claimed duties not required by Reg. E/EFTA. The implementing regulations of the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. § 1693, et seq., commonly known as “Regulation E,” broadly deal with the “basic rights, liabilities, and responsibilities… Read More
In Blaker v. Credit One Bank, 2018 WL 5307470, at *3–4 (S.D.Cal., 2018), Magistrate Judge Adler found remanded a removed action to a state court that had been arbitrated and Plaintiff attempted to confirm. The facts were as follows: Plaintiffs Richard and Samantha Blaker initiated this lawsuit by filing a complaint in San Diego County Superior Court on March 25,… Read More
In Keifer v. Hosopo Corp., No.: 3:18-cv-1353-CAB-(KSC), 2018 WL 5295011 (S.D. Cal. Oct. 25, 2018), the Court found that a TCPA Plaintiff adequately pleaded an ATDS after Marks. Defendant’s contention that Plaintiff has failed to establish that it, or any agent, made any of the alleged 14 calls is unavailing. [Doc. No. 14-1 at 17-21.] For purposes of the motion to… Read More
In Bondi v. Nationstar Mortgage, LLC., 2018 WL 5291221 (C.A.9 (Nev.), 2018), the Court of Appeals for the Ninth Circuit in an unpublished decision found that no FCRA claim would lie for a direct dispute with the Furnisher and, even if one did, the Furnisher did not unreasonably investigate the dispute simply because it reached a conclusion adverse to the consumer.… Read More
In Marino v. PNC Bank, N.A., 2018 WL 5114136, at *1 (D.Nev., 2018), Judge Du dismissed an FCRA claim by a homeowner against a creditor based on the creditor's obtaining a consumer report post-bankruptcy. The facts were as follows: Marino obtained a mortgage with PNC. Thereafter, in 2013, she filed for bankruptcy. The bankruptcy court “discharge[d] her in personam liability… Read More
In Jenkins v. Bayview Loan Servicing, LLC, 2018 WL 5255318, at *3 (C.D.Cal., 2018), Judge Olguin remanded a Rosenthal Act claim due to the absence of federal jurisdiction. Bayview contends that federal question jurisdiction exists because the Complaint refers to the FDCPA. (See Dkt. 1, NOR at 3). However, the Complaint asserts only state-law claims, including California’s Rosenthal Fair Debt… Read More
In Ghazaryan v. Equinox Information Services, LLC., 2018 WL 5098835 (9th Cir. (Cal.), 2018), the Court of Appeals for the Ninth Circuit in an unpublished opinion affirmed the district court’s grant of summary judgment in favor of a consumer reporting agency. In conducting a reinvestigation, a consumer credit reporting agency must “review and consider all relevant information” that the consumer submits… Read More
In Thomas v. Hyundai Capital America, et. al., 2018 WL 4899074, at *3–4 (D.Colo., 2018), Magistrate Judge Mix dismissed an FCRA claim against a CRA. The Equifax Defendants argue that Plaintiff’s claim fails because he cannot establish element two, i.e. that the report in question was, in fact, inaccurate. Motion [#10] at 5. They assert that “it is undisputed that… Read More
In Fasusi v. Washington Motorcars, Inc., 2018 WL 4896722, at *1 (E.D.Va., 2018), Judge Brinkema issued a default judgment against a car dealer after discovery sanctions were awarded, the dealer's bankruptcy was dismissed, and the dealer's counsel withdrew. In this civil action, plaintiff brings a variety of statutory and common law claims against defendant stemming from defendant's alleged improper conduct… Read More
In Rudio v. Credit Control, LLC, 2018 WL 4772303 (N.D.Cal., 2018), Judge Donato dismissed an FDCPA and Rosenthal Act claim. Credit essentially inverts Rudio’s claim to contend that the FDCPA does not apply to settled or expunged debts. The point is not well taken. The FDCPA defines “debt” to include an “alleged obligation of a consumer” to pay money, “whether… Read More
On October 3, the FCC issued a Request for Comment on the TCPA's definition of ATDS following the 9th Circuit's Marks decision. A copy of the FCC's Request is here. The deadline to file commentary is October 24, 2018. The FCC seemed concerned by Marks' expansive interpretation of the TCPA's definition(s). In other words, the [Marks] court interpreted the statutory language expansively so… Read More
