In Benedetti v. Charter Communications, Inc., 2018 WL 2970998, at *2 (S.D.Ind., 2018), Judge Miller denied summary judgment to a TCPA defendant who established that an ATDS was not used because the calls may have been pre-recorded calls. Charter is correct that Ms. Benedetti doesn’t have evidence to show that any of the calls was made by using an automatic… Read More
In Boydstun v. U.S. Bank, 2018 WL 2730729, at *1 (9th Cir. 2018), the Court of the Appeals affirmed the district court’s judgment in favor of U.S. Bank in a Fair Credit Reporting Act case. On appeal, he challenges the district court’s decision to exclude as irrelevant all evidence of damages stemming from the denial of an equipment loan to… Read More
In Lavigne v. First Community Bancshares, Inc., 2018 WL 2694457, at *7–8 (D.N.M., 2018), Judge Johnson certified a TCPA 'wrong-number' class. Plaintiff proposes that the class includes all individuals, according to Defendants records, who (1) called in to Defendants and were coded as “Bad/Wrong Number”, and were (2) subsequently called again by Defendants, and were coded as “Bad/Wrong Number.” Plaintiff proposes… Read More
In Ghalehtak v. Fay Servicing, LLC, 2018 WL 2553570, at *2 (N.D.Cal., 2018), Judge Hamilton remanded a Rosenthal Act claim back to state court. Defendants argue that federal jurisdiction exists under § 1331 because plaintiffs’ RFDCPA claim specifically references parts of the FDCPA. Under the “well-pleaded complaint rule...federal jurisdiction exists only when a federal question is presented on the face… Read More
In Trupp v. Ally Financial, Inc., Civ. Action No. 17-5404, 2018 WL 2462777 (E.D. Pa. May 31, 2018), Judge Jones allowed a TCPA defendant to file a counter-claim for the debt against the Plaintiff. Plaintiff’s contention that “it is clear [the] federal TCPA claim and the state law breach of contract counterclaim involve completely different legal theories and evidence,” is not… Read More
In Gonzalez v. Chase Bank, USA, Case No.: 3:18-cv-00431-CAB-AGS, 2018 WL 2461490 (S.D. Cal. June 1, 2018), the District Court allowed a TCPA/FDCPA defendant creditor to counter-claim against the Plaintiff for the debt due and owing. The Court is inclined to follow the majority of Ninth Circuit district courts cited above, and finds that supplemental jurisdiction exists over a defendant’s… Read More
In Hewitt v. Auto Showcase of Bel Air, 2018 WL 2437240 (Md. App. 2018) (unpublished), the Court of Appeals enforced an arbitration clause in an automobile RISC despite rescission of the RISC due to a failure of financing. Hewitt's . . . argues that, once Auto Showcase repossessed the Vehicle, any consideration supporting the arbitration agreements ceased. Thus, the RISC should… Read More
In Infante v. Law Office of Joseph Onwuteaka, 2018 WL 2438153 (5th Cir. 2018), the Court of Appeals for the Fifth Circuit found in an unpublished decision that Henson did not protect a lawyer claiming that he owned the debts that he’d purchased. On appeal, Onwuteaka claims that he deserves “creditor” status by proxy. His argument (though only barely more… Read More
In Sawyer v. KRS Biotechnology, 2018 WL 2425780 (S.D. Ohio 2018), Magistrate Judge Bowman denied class certification in a junk-fax TCPA class action. Although the defendant’s V.P. Of sales was unfamiliar with the TCPA before the litigation and the defendant had no formal records documenting individualized consent to send the faxes, Judge Bowman found that individual questions of consent predominated.… Read More
In Lowe v. MAC Credit Union, Inc., 2018 WL 2422999 (W.D. Tex. 2018), Judge Rodriquez dismissed an FCRA claim against an Alaska-based credit union whose customer had relocated to Texas due to lack of jurisdiction. The unilateral activity of a plaintiff who claims some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state. The fact… Read More
In Gamble v. New England Auto Finance, Inc., 2018 WL 2446607 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit found that text messages sent by automobile finance company after its customer had paid her RISC in full were not subject to the RISC’s arbitration clause and class-action waiver. NEAF also argues that the Arbitration Provision is broad enough… Read More
In Shaw v. Experian Information Systems, 2018 DJDAR 4948, 2018 WL 2424105 (9th Cir. May 29, 2018), the Court of Appeals for the Ninth Circuit held that Experian’s reporting of Plaintiffs’ short sales during the real estate market crash between 2008 to 2012 to subscribers of credit information did not violate 15 U.S.C.§ 1681e or § 1681i of the FCRA… Read More
In Daniel v. National Park Service, 2018 WL 2424494 (9th Cir. 2018), the Court of Appeals for the Ninth Circuit again addressed the impact of Spokeo within the context of a FACTA-receipt case. The Court found that not only must a concrete injury be pleaded, but the injury must be fairly traceable to the violation. We recently considered whether “receiving… Read More
In Norman v. Allied Interstate, LLC, 2018 WL 2383099, at *2–3 (E.D.Pa., 2018), Judge McHugh held that a debt buyer remained subject to the FDCPA despite Henson. Until recently, it was settled law in the Third Circuit that debt buyers like LVNV were debt collectors under the Act, because the debts they attempt to collect were in default when they… Read More
In Walintukan v. SBE Entertainment Group., LLC., 2018 WL 2357763, at *3 (N.D.Cal., 2018), Judge Tigar denied a TCPA defendant's summary judgment motion. Defendants argue that “the text messages involved in this case fall squarely within [the] scope of consent test articulated by the Court of Appeals in Van Patten — both from a temporal and a subject matter standpoint.”… Read More
In Randall v. Ditech Financial, LLC., 2018 WL 2355927, at *3 (Cal.App. 4 Dist., 2018), the California Court of Appeal found that an FDCPA Plaintiff stated a claim against a mortgage servicer who accepted assignment of a loan that already was in default. Here, the complaint alleged Ditech “collects debts, either on behalf of itself or others, in the regular… Read More
In Swaney v. Regions Bank, Case No. 2:12-cv-00544-JHE, 2018 WL 2316452 (N.D. Ala. May 22, 2018), Judge Proctor held that ACA Int’l only invalidated the FCC’s 2015 Order, and that a calling system that qualified as an ATDS under FCC’s 2003 Order still constituted an ATDS under the TCPA. In ACA International, the D.C. Circuit invalidated certain portions of the 2015… Read More
In Maddox v. CBE Group, Inc., Case No. 1:17-CV-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018), Judge Jones followed the ACA Int’l decision with respect to the issue of what constitutes an ATDS under the TCPA. Ordinarily, statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States,… Read More
In Miller v. Yellow Pages, et. al., 2018 WL 2329716 (S.D.Cal.), 2 (S.D.Cal., 2018), the District Court found that California’s Rosenthal Act does not itself create federal jurisdiction merely because it incorporates federal law. Further, Plaintiff’s state law claims do not raise a federal issue sufficient to confer federal jurisdiction. The “mere presence” of the FDCPA in a state law cause… Read More
In Anderson v. Credit One Bank, N.A., 2018 WL 2287329, at *2–3 (S.D.Cal., 2018), Judge Anello struck a TCPA Plaintiff's "errata" sheet following Plaintiff's deposition, reconsidered the denial of Defendant's Petition to Compel Arbitration, and granted the Petition to Compel Arbitration. Here, upon due consideration, the Court finds that Plaintiff’s errata sheet “runs afoul of Rule 30(e)’s...requirements.” Tourgeman, 2010 WL… Read More
