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
In Barton v. Credit One Financial, 2018 WL 2012876, at *3–4 (N.D.Ohio, 2018), Judge Nugent granted summary judgment against a TCPA plaintiff who claimed that he orally revoked consent to be called. Mr. Barton also argues that he “revoked any consent he may have given” to Credit One. (ECF #47, p. 1). The facts illustrate that while Mr. Barton may… Read More
In Stuppiello v. Southwest Credit Systems, L.P., 2018 WL 2015486, at *1–2 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held that a request for contact in a validation letter did not overshadow the 30-day notice. Stuppiello complains of a letter in which the Defendant-Appellee informed him that a $612.32 debt “[was] due in full.” In that… Read More
In Nolden v. Summit Financial Corporation, 2018 WL 1956339, at *4–5 (Fla.App. 4 Dist., 2018), the Florida Court of Appeal found that an automobile RISC is not a "loan" subject to usury. The defendants were also entitled to entry of summary judgment because the transaction in this case was not a “loan” under the usury statute. . . .“The law… Read More
In McCray v. Jefferson Chevrolet Company, Inc., 2018 WL 1964674, at *2–3 (E.D.Mich., 2018), Judge Drain found that a Plaintiff's testimony that the RISC was blank when she signed it created a triable issue of fact as to whether TILA disclosures were given. Plaintiff alleges that Defendants violated 15 U.S.C. § 1638(3)–(6), and (9) by not disclosing the amount financed, the finance charge,… Read More
In Berry v. Locke, 2018 WL 1958851, at *2–3 (Cal.App. 2 Dist., 2018), the Court of Appeal in an unpublished decision dismissed a Rosenthal Act class action arising from 3-day cure-or-quit notices served by a law firm in anticipation of litigation. A statement or writing made in a judicial proceeding is protected activity. (§ 425.16, subd. (e)(1)-(2).) Further, “ ‘communications… Read More
In Hill v. Accounts Receivable Services, LLC, 2018 WL 1864720, at *1–2 (8th Cir. 2018), the Court of Appeals for the Eighth Circuit joined other circuits to adopt a materiality standard for 1692e claims and also rejected the "ipso facto" rule for debt collectors who lose debt collection litigation. In Hahn v. Triumph Partnerships LLC, 557 F.3d 755 (7th Cir. 2009),… Read More
In Wenzel v. National Creditors Connection, Inc., 2018 WL 1902699, at *12 (D.N.H., 2018), Judge McCafferty granted summary judgment to a debt collector on a Plaintiff's FDCPA harassment claim. The evidence in the record shows that Carrington called Wenzel’s cell phone seven times between July 28 and October 11, 2016, and never more than once on a single day. There… Read More
In Robinson v. National Credit Systems, Inc., 2018 WL 1877462 (M.D.Fla.), 4 (M.D.Fla., 2018), the District Court struck a number of affirmative defenses as not resembling actual defenses, but let stand an affirmative defense to an FCRA claim derived from common law negligence. In its fifth affirmative defense, National argues, “any damages suffered by the Plaintiff[s] should be apportioned in… Read More
In re Jones, 2018 WL 1898140 (Bkrtcy.W.D.Wash., 2018), Judge Allston found that a bankrupt debtor’s vehicle did not secure the amounts financed to pay for optional service and GAP contracts. This claim objection appears to present an issue of first impression to the Court: whether optional contracts for gap insurance and vehicle maintenance should be treated as secured under the… Read More
In Echlin v. PeaceHealth, 2018 WL 1801582, at *5–6 (C.A.9 (Wash.), 2018), the Court of Appeals for the Ninth Circuit held that a debt collector who engaged meaningfully in the debt collection process did not engage in “flat rating”. Echlin primarily argues that CCI did not meaningfully participate in the attempts to collect her debts because CCI did not engage… Read More
In Bell v. Northland Group., 2018 WL 1792368, at *1–2 (E.D.Mich., 2018), Judge Michelson found that a debt collector's good faith reliance on information provided by the creditor is not a defense to an FDCPA claim when the debt collector is not relying on a bona fide error defense Northland Group asserts that, because it relied in good faith on… Read More
In Cahill v. GC Services Ltd., 2018 WL 1791910, at *3 (S.D.Cal., 2018), the District Court rejected a TCPA Defendant's attempt to oppose a discovery motion on the grounds that the Plaintiff could not properly represent the class because Plaintiff was not dialed by an ATDS. The primary theme throughout Defendant’s motion is that Plaintiff is an atypical member of… Read More
In Escobar v. Pennsylvania Higher Education Assistance Agency Services, Inc., 2018 WL 1740364 (E.D. Pa. 2018), Judge Padova found that a furnisher can almost never close its books on a stale FCRA claim. First, Judge Padova found that a consumer can renew a stale FCRA claim merely by filing a new dispute with the CRAs. PHEAA recognizes that, while the United… Read More
In CFPB v. Weltman, Weinberg & Reid, Co., 2018 WL 1709408, at *3 (N.D.Ohio, 2018), Judge Nugent denied the CFPB’s and a debt collection law firm’s motions for summary judgment as to whether the law firm had meaningful involvement in the collection of the debts. Interestingly, the law firm defended the CFPB’s MSJ on the basis that the law firm… Read More
In Byrne v. Crown Asset Management, LLC., 2018 WL 1609479, at *2 (N.D.Cal., 2018), Judge Chen found that California's elder abuse statute permits trebling of the Rosenthal Act penalty. Defendant TRG argues that Section 3345 only authorizes trebling of punitive damages, and therefore the request should be interpreted as a “de facto” demand for punitive damages, which are unavailable under the… Read More
In Tilley v. Ally Financial, Inc., 2018 WL 1535413, at *1–2 (E.D.Mich., 2018), Judge Leitman declined to hear a collection claim filed in response to a federal TCPA claim. Ally’s state-law breach of contract counterclaim and Tilley’s TCPA claim do not derive from a common nucleus of operative facts. Tilley’s TCPA claim arises out of the (alleged) facts that Ally… Read More
In Marshall v. CBE Group, Inc., 2018 WL 1567852, at *4–8 (D.Nev., 2018), Judge Navarro followed the ACA Int'l decision and, in the absence of interpretative guidelines by the FCC, applied the TCPA's "plain language". In light of this ruling, the Court will not stray from the statute's language which “mandates that the focus be on whether the equipment has… Read More
In Picazo v. Kimball, Tirey, & St. John, LLP, 2018 WL 1583228, at *5 (S.D.Cal., 2018), Judge Miller granted an Anti-SLAPP action filed by a debt collector in a Rosenthal Act claim arising from alleged misconduct in a state court UD action. Judge Miller first found that the Rosenthal Act prevailed over the litigation privilege under the facts of the… Read More
A copy of Erik Kemp's and Scott Hyman's article "The Consumer Financial Protection Bureau Regulates Pay-by-Phone 'Convenience” Fees'", CFSC Newsletter: ABA Business Law Section, (March 2018) can be found here: https://www.americanbar.org/content/dam/aba/administrative/business_law/newsletters/CL230000/full-issue-201803.authcheckdam.pdf Read More
