Consumer Finance

At the American Bar Association's meeting in Chicago this month, the ABA Section of Civil Rights and Social Justice proposed Resolution 104B on discrimination in auto lending, a copy of which can be found here.  The resolution was withdrawn for further consultation with the ABA's Business Law Section. http://www.abajournal.com/news/article/house_adopts_trio_of_resolutions_on_gender_family_and_sexual_orientation Read More

In Tepper v. Amos Financial, LLC, 2018 WL 3733862, at *6 (C.A.3 (Pa.), 2018), the Court of Appeals for the Third Circuit found that a debt buyer is still subject to the FDCPA post-Henson because the principal purpose was the collection of defaulted debt. Many would gladly pay Tuesday for a hamburger today. Of course, not all of those who… Read More

In Few v. Receivables Performance Management,  2018 WL 3772863, at *2–3 (N.D.Ala., 2018), Judge Owen Bowdre granted summary judgment to a debt collector based on Reyes. In this case, Ms. Few contends that, although she may have initially provided DISH— and, by extension, Receivables, which acted as DISH’s agent for the purpose of debt collection—with consent to call the 0268… Read More

In Harris v. Navient Solutions, LLC (f/k/a Sallie Mae), 2018 WL 3748155, at *2–3 (D.Conn. 2018), Judge Chatigny granted summary judgment to a TCPA defendant under Reyes.  The Second Circuit has held that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.” See Reyes v. Lincoln… Read More

In Abanta Rooter and Plumbing, Inc., v. Alarm.com, Inc., 2018 WL 3707283, at *6–7 (N.D.Cal., 2018), Judge Gonzalez-Rogers denied all parties' motions for summary judgment as to what constituted an ATDS. The record indicates that Nationwide, Alliance’s purported agent, used the Ytel Dialer to place calls to the cell phones of members of the Cell Phone Class. (Terrell Decl., Ex.… Read More

In Gary v. TrueBlue, Inc., 2018 WL 3647046, at *6–8 (E.D.Mich., 2018), Judge Drain denied a TCPA Plaintiff's Motion for Summary Judgment on the basis that he had failed to prove that the text messages that he received were sent by means of an ATDS. Plaintiff argues that WorkAlert is an ATDS because WorkAlert can both (1) dial numbers from… Read More

In Caseman v. Silver Schools Credit Union, 2018 WL 3620484, at *5 (D.Nev., 2018), Judge Boulware granted summary judgment to a furnisher who submitted corrections to a consumer's account information to a CRA, but where the CRA did not make the change because it did not comply with the CRA's internal formatting. The Court finds that Silver State acted reasonably and… Read More

In Vangorden v. Second Round, Limited Partnership, 2018 WL 3595759, at *4–5 (2nd Cir., 2018), the Court of Appeals discussed whether the validation process must first be engaged by the consumer before the consumer can state a claim. Second Round argues that it is evident from this statutory scheme—which affords consumers the right to dispute debts, precludes efforts to collect… Read More

In Morgan v. U.S. XPRESS, Inc., CHRISTOPHER MORGAN,  2018 WL 3580775, at *2–3 (W.D.Va., 2018), Judge Moon found that a TCPA Plaintiff had to distinguish between cell phone lines and land-lines. To start, Plaintiff's characterization of the cell phone as a “residential, cellular telephone line” is not determinative of this question. These are not factual allegations, but legal terms drawn… Read More

In Macy v. GC Services, Ltd., 2018 WL 3614580, at *9–10 (C.A.6 (Ky.), 2018), the Court of Appeals for the Sixth Circuit found that FDPCA Plaintiffs, and their class, had Spokeo standing. Thus, Lyshe is distinguishable. Here, the harm Plaintiffs allege—being misled by a debt collector about the rights the FDCPA gives to debtors—is precisely the type of harm—abusive debt-collection… Read More

In Pinkus v. Sirius XM Radio, Inc., 2018 WL 3586186, at *7–9 (N.D.Ill., 2018), Judge Feinerman found that an ATDS must have the capacity to generate numbers randomly or sequentially and then to dial them, even if that capacity is not deployed for practical reasons. [T]he court must first assess ACA International’s scope. For the reasons stated below, ACA International… Read More

In In re: Dunn, 2018 WL 3549310, at *4–5 (E.D.Pa., 2018), Judge Leeson affirmed the bankruptcy court's finding that the repossession of a vehicle violated the automatic stay. Here, the Bankruptcy Court, following the court’s decision in In re Rice concluded that the BAPCPA eliminated the ride-through option. Neither party disputes this determination, nor is it necessary for this Court… Read More

There were a number of holdings in this unpublished decision, but we'll focus just on the SCRA claim.  In Kwon v. Santander Consumer USA, 2018 WL 3546498, at *2 (C.A.2 (N.Y.), 2018), the Court of Appeals affirmed that the Plaintiff did not plead enough to state a claim under the SCRA. Nor do we discern any error in the district… Read More

This technology has been around for years and has been the subject of legal advice, an FCC petition, and, now, a judicial opinion.  Genevieve Walser-Jolly's Bulletin, here, discusses the recent Saunders case and direct mail-drop technology. Read More

In Galicia v. PlusFour, Inc., 2018 WL 3543039, at *3–5 (D.Nev., 2018), Judge Mahan granted a motion to dismiss FCRA and FDCPA claims based on the applicable statute(s) of limitations. First, the Court found that the FCRA claims were barred, and were not tolled due to subsequent reporting. Here, plaintiff discovered the violations and began reporting the inaccuracies in his… Read More

In Ally Financial, Inc. v. State Treasurer, State of Michigan,  2018 WL 3520302, at *6–7 (Mich., 2018), the Michigan Supreme Court found that auto finance companies properly sought tax refunds for post-repossession deficiency balances. In the present case, we have to make sense of the fifth item, “repossessed property.” The statute clearly states that “repossessed property” is not part of… Read More

In Cohen v. Rosicki, Rosicki & Associates, P.C., 2018 WL 3520253, at *4 (C.A.2 (N.Y.), 2018), the Court of Appeals for the Second Circuit held that collection activities relating to enforcement of a security interest in real property was not necessarily exempt from the FDCPA. We next address the district court's conclusion that actions taken within a foreclosure action do… Read More

In Parchman v. SLM Corporation, 2018 WL 3479228, at *6–10 (6th Cir. 2018), the Court of Appeals held that the TCPA is a remedial, not penal, statute and, therefore, survives the death of the Plaintiff.  The Court of Appeals held, however, that the survivability question was different than whether the substituted Plaintiff was a proper class representative. The district court… Read More

In Coyne v. Midland Funding LLC, 2018 WL 3423469, at *2–3 (8th Cir. 2018), the Court of Appeals for the Eighth Circuit held that an FDCPA Plaintiff had pleaded a claim against a debt collector based on their claim that the debt collector's dunning letter had compounded interest in violation of state law and the contract forming the obligation. It is undisputed that Minnesota… Read More

In Lord v. Kisling, Nestico & Redick, LLC, 2018 WL 3391941, at *3 (N.D.Ohio, 2018), Judge Nugent found that a TCPA Plaintiff did not plead sufficient facts demonstrating that an ATDS was used under the standard set forth by the D.C. Circuit's decision in ACA International.  For the telephone system KNR allegedly uses to constitute a violation of the TCPA,… Read More