In O'Shea v. American Solar Solution, Inc., 2018 WL 2298207, at *2 (S.D.Cal., 2018), the District Court denied the Plaintiff's summary judgment because, potentially, a jury could disbelieve the Plaintiff's expert. Plaintiff presents two arguments to the effect that it has carried its burden of demonstrating Defendant made 897,304 calls. First, Plaintiff argues that Defendant admitted as much by way… Read More
In Jara v. GC Services Ltd., Partnership, et. al. 2018 WL 2276635 (C.D.Cal.), 3 (C.D.Cal., 2018), Judge Wright found a triable issue of fact as to whether a debtor’s revocation of TCPA consent on one account was sufficient to revoke consent on all accounts held by the debt collector. Mrs. Jara was the sole authorized user on her JC Penny,… Read More
On May 20, 2008, we went live with our consumer finance law weblog, originally located at www.calautofinance.com. Ten years later, we have summarized over 2,000 decisions on personal property finance, and become the ‘go-to’ source for thousands of subscribers eager to receive state-of-the-art, up-to-date information about legal matters affecting our industry. In the constantly shifting sands of our industry, and… Read More
In Rotkiske v. Klemm, 2018 WL 2209120 (3rd Cir. 2018), the Court of Appeals for the Third Circuit held that the FDCPA’s Statute of Limitations has no discovery rule, disagreeing with the 4th and 9th Circuits. The United States Courts of Appeals for the Fourth and Ninth Circuits have held that the time begins to run not when the violation… Read More
In Krieger v. Bank of America, N.A., 2018 WL 2224393, at *5-8 (3d Cir. May 16, 2018), the Court of Appeals for the Third Circuit overturned a District Court order dismissing the plaintiff's Fair Credit Billing Act (FCBA) claim. On July 29, 2015, the plaintiff called the bank to dispute an allegedly fraudulent $657 charge which was first reflected on… Read More
Companies and practitioners throughout the Ninth Circuit are following the now-fully briefed appeal in Marks v. Crunch San Diego, LLC, No. 14-56834, with interest. In this appeal, the Ninth Circuit is considering what constitutes an Automatic Telephone Dialing System (“ATDS”) under the TCPA and could imminently issue a decision. The appeal is from an order granting a TCPA defendant summary… Read More
Following the D.C. Circuit Court’s ruling in ACA International v. FCC , 885 F.3d 687 (D.C. Cir. Mar. 16, 2018), two US District Courts reached different conclusions regarding whether they were still bound by the FCC’s pre-2015 orders on what constitutes an ATDS under the TCPA. In John Herrick v. GoDaddy.com LLC, 2:16-cv-00254-DJH (D. Ariz. May 14, 2018), the District… Read More
In Threadford v. Board of Trustees of University of Alabama, 2018 WL 2197554, at *2–3 (N.D.Ala., 2018), Judge Proctor dismissed a TCPA claim against the University of Alabama. There are two exceptions to Eleventh Amendment immunity: First, Congress can abrogate eleventh amendment immunity without the state’s consent when it acts pursuant to the enforcement provisions of section 5 of the… Read More
In Menachem Raitport and Crown Kosher Meat Market, Inc. v. Harbour Capital Corporation, 2018 WL 2186469, at *4–6 (D.N.H., 2018), Judge McAuliffe found that he was bound by the DC Circuit's ruling on the FCC's Solicited Fax Rule, not the FCC's Rule itself. Raitport argues that “this Court lacks the jurisdiction to follow the D.C. Circuit’s decision [in Bais Yaakov]… Read More
On May 3, 2018, a coalition of industry groups filed a petition for a declaratory ruling with the FCC, following the DC Circuit's decision in ACA Int'l. Yesterday, the FCC asked for comment. A copy of the Petition can be found here. Interested parties may file comments by June 13, or reply to comments by June 28. Read More
In Delgado v. Ally Financial, et. al., 2018 WL 2128661, at *5–6 (S.D.Cal., 2018), Judge Benitez ordered an FCRA case to arbitration, rejecting the Plaintiff's argument that the bankruptcy eliminated the arbitration clause. Delgado also opposes the enforcement of the arbitration provision on the basis his bankruptcy discharge rendered the arbitration provision unenforceable. (Doc. No. 25 at 4.) This assertion,… Read More
In Dacumos v. Toyota Motor Credit Corporation, 2018 WL 2059562 (W.D.Wash., 2018), Judge Martinez dismissed a credit reporting claim against an automobile finance company deriving from an earlier settlement where the company allegedly agreed not to collect further on the Account. Plaintiff also contends that TMCC breached Paragraph 2.b. of the Agreement by reporting Plaintiff’s loan balance as $13,593.00 instead of… Read More
In Deleon v. Action Collection Agency of Boston, 2018 WL 2089343 (S.D.N.Y., 2018), Judge Abrams found that a debt collector’s dunning letter identified the creditor properly when it used the creditor’s acronym. The fact that the Letter identifies the creditor by an acronym does not alter this conclusion. To comply with the FDCPA, “a creditor may use the name under… Read More
In Weed v. SunTrust Bank, 2018 WL 2100590 (N.D.Ga.), 3 (N.D.Ga., 2018), Judge Duffy declined to rule on a caller’s Reyes defense to an oral revocation claim under the TCPA because the defense is an affirmative defense that the Court declined to rule on at the pleadings stage. SunTrust argues that Weed consented in the Sale Contract to the calls… Read More
In Kozlowski v. Bank of America, 2018 WL 2096381 (E.D.Cal.), 4 (E.D.Cal., 2018), the District Court found that the Plaintiff failed to allege an FCRA claim against a furnished. Plaintiff fails, however, to adequately allege the second and third elements of a claim under § 1681s-2(b). Plaintiff does not allege in her complaint that a consumer reporting agency notified the furnisher—here, BANA—of… Read More
In In re Nissan Litigation, 17-CV-729 (KBF) 2018 WL 2113228 (S.D.N.Y. May 8, 2018), Judge Forrest granted summary judgment to an auto finance company in a floorplan dispute. Judge Forrest first described “sales out of trust”. In order to keep inventory in their dealerships, car dealers typically enter into Floor Plan Financing agreements with the captive finance arms of the manufacturers—in this… Read More
In Gadomski v. Equifax Information Services, Inc., 2018 WL 2096862, at *4–6 (E.D.Cal., 2018), the District Court found that no willful violation of the CRA could lie absent prior notice that the information was inaccurate or that the information came from an unreliable source. Here, Defendant does not dispute that the information reported on Plaintiff’s credit report was inaccurate. (See ECF… Read More
In Johnson v. Enhanced Recovery Company, LLC., 2018 WL 2057798, at *2–3 (N.D.Ind., 2018), Judge Simon certified an FDCPA class action over the defendant's objection. ERC also argues that the FDCPA claim here depends on a material misrepresentation, and that “[w]hether any statements resulted in a material misstatement that actually affected the recipient’s decision-making is an issue that cannot be… Read More
In Evans v. Portfolio Recovery Associates, LLC, 2018 WL 2035315, at *5–7 (C.A.7 (Ill.), 2018), the Court of Appeals for the Seventh Circuit held that a debt collector violates the FDCPA when the debt collector receives an (untimely) dispute from a debtor in response to a 30-day validation letter and thereafter reports the account to a consumer reporting agency without reporting… Read More
In Zucker v. HSBC Bank, USA, et. al., 2018 WL 2048880, at *8–9 (E.D.N.Y., 2018), Judge Hurley hoisted Reyes on its own petard, finding that consent to call given in a credit application was not, at the pleadings stage, broad enough consent for the inevitable debt collection calls to be made by an ATDS. Plaintiff has alleged that PHH (1) called… Read More
