Consumer Finance

In Pavlovich v. Account Discovery Services, 2017 WL 5903354, at *3 (S.D.Cal., 2017), Magistrate Crawford found that an FDCPA Class Action Plaintiff was entitled to net worth discovery despite the fact that class certification had not yet been decided. The Court finds that plaintiff is entitled to financial information regarding defendant, DNF's, financial net worth in 2015, 2016, and at present.… Read More

In MacKinnon v. Hof's Hut Restaurants, Inc.,  2017 WL 5754308, at *2 (E.D.Cal., 2017), the district court found that a confirming text with a "see specials" link was not an "advertisement" under the TCPA. Defendant's website did not constitute advertising or telemarketingsince it just informed plaintiff that joining a rewards program would result in freerewards points). Also, messages “whose purpose is… Read More

In Brandt v. Ocwen Loan Servicing, LLC, 2017 WL 5878581, at *8 (E.D.Cal., 2017), the Court allowed a Rosenthal Act claim to proceed despite some calls being placed outside the statute of limitations. Here, according to the allegations of the first amended complaints, the calls made before the filing of plaintiffs' actions on the respective dates in May 2017 reflect a continuing… Read More

We previously reported and analyzed the so-called "Benson-tender", which is how California Courts treat a CLRA defendant's response to a pre-suit demand for correction under the CLRA vis-a-vis the consumer's later demand for demand for attorneys' fees.  Our Daily Journal Article entitled "Different Approaches to CLRA Damages", authored by Severson attorneys Austin Kenney and Colin Murphy, can be found here:  Benson… Read More

In Viggiano v. Kohl's Department Stores, Inc., 2017 WL 5668000, at *4 (D.N.J., 2017), Judge Martinotti dismissed a Plaintiff's TCPA case by failure to allege adequate revocation of consent. Here, Plaintiff has pled she received replies to her efforts to opt out instructing her to text “STOP” to opt out of future texts. (ECF No. 1 ¶ 14.) Accepting the… Read More

It seems a bit granular to go up to the Court of Appeal, but in Kirzhner v. Mercedes-Benz USA, LLC, 2017 WL 5664371, at *3 (Cal.App. 4 Dist., 2017), the Court of Appeal held in an unpublished decision that Song-Beverly restitution does not include registration renewal fees. Although the list is nonexhaustive, the examples give guidance as to what constitutes… Read More

In Breda v. Cellco Partnership d/b/a/ Verizon Wireless, 2017 WL 5586661, at *3–5 (D.Mass., 2017), Judge Casper granted summary judgment to a TCPA defendant because Plaintiff's number had been assigned to a VoiP plan that was not protected by the TCPA.  The facts were as follows: Cellco placed calls to Breda's phone number to discuss a Verizon customer's account status in error (the… Read More

In Paul Gugger, Plaintiff, v. USAA Federal Savings Bank, Defendant., 2017 WL 5552254, at *2–4 (S.D.Cal., 2017), the District Court denied a motion to dismiss a credit reporting complaint premised on the theory that a 1099-C discharged a debt, making reporting of the balance of the debt inaccurate. The Internal Revenue Code requires a creditor discharging indebtedness to file an “information… Read More

In Selby v. Ocwen Loan Servicing, LLC, 2017 WL 5495095, at *3 (S.D.Cal., 2017), Judge Bencivengo granted a motion to dismiss in a TCPA case based on lack of standing. The Ninth Circuit's decisions since Romero do not require a different outcome. Plaintiff relies extensively on the Ninth Circuit's recent opinion in Van Patten v. Vertical Fitness Group, LLC, 847… Read More

In Arias v. Gutman, Mintz, Baker & Sonnenfeldt, LLP, 2017 WL 5330081 (C.A.2 (N.Y.), 2017), the Court of Appeals for the Second Circuit did not adopt the argument adopted by other courts that the FDCPA's "general" prohibitions cannot provide an additional basis for liability when there already is a "specific" prohibition set forth elsewhere in the FDCPA. Franklin Arias claims… Read More

In Hedayati v. The Perry Law Firm, 2017 WL 4864491, at *7 (C.D.Cal., 2017), Judge Carter held a bench trial regarding the Plaintiff's claim that the defendant wrongfully attempted to collect a debt from him that, in reality, was owed by his brother.  Judge Carter found no false statements made to the Plaintiff, and imposed a reality check on the… Read More

In Spuhler v. State Collection Services, Inc., 2017 WL 4862069, at *7–8 (E.D.Wis., 2017), Judge Joseph certified an FDCPA class, rejecting the argument that the class, as defined, was too narrow and would result in multiple classes (in defiance of the $500k/1% net worth limitation) where the debt collector used the same offending letter for various clients. State Collection's first… Read More

In Rodriquez v. Your First Choice, LLC d/b/a/ First Choice Payday Loan, 2017 WL 4855406, at *3 (D.Nev., 2017), Judge Gordon denied a creditor's motion for summary judgment based on a triable issue of fact as to whether the creditor had a permissible purpose to pull a consumer's credit report. Section 1681b(a) of FCRA states that in general, “any consumer… Read More

In Bally v. First National Bank of Omaha, 2017 WL 4841420, at *2 (E.D.Mich., 2017), Judge O'Mear denied a TCPA Plaintiff's Motion for Summary Judgment because he hung up and the Defendant did not understand his revocation. On December 6, 2016, Defendant called Plaintiff in an attempt to collect a debt. During that call, Plaintiff told Defendant to stop calling him,… Read More

The Senate voted 51 to 50 late Tuesday to repeal the Consumer Financial Protection Bureau’s rule banning mandatory arbitration clauses in financial contracts.  Vice-President Pence cast the deciding vote to break the tie.    Senate Republicans relied on the Congressional Review Act ("CRA") to overturn the CFPB's anti-Arbitration Rule.  The CFPB's Rule had been challenged by the Department of Treasury… Read More

In Volvo Financial Services, Inc. v. Williamson, 2017 WL 4708136, at *3 (S.D.Miss., 2017), Judge Guirola held that the statute of limitations on a promissory note secured by a number of tractors did not accrue until all of the repossessed collateral was sold, due to a cross-collateralization clause in the note. The most reasonable interpretation of the statute when applied… Read More

Today, the Dept. of Treasury issued an analysis of the CFPB's Arbitration Rule, entitled Limiting Consumer Choice, Expanding Costly Litigation: An Analysis of the CFPB Arbitration Rule.  The Dept. of the Treasury concluded that In view of these defects, it is clear that the Rule does not satisfy the statutory prerequisites for banning the use of arbitration agreements under the… Read More

In Montegna v. Ocwen Loan Servicing, LLC, 2017 WL 4680168, at *8–9 (S.D.Cal., 2017), the District Court found that a Rosenthal Act claim survived a statute of limitations challenge based on the plaintiff's allegation of a "continuing violation". Second, as for Plaintiff's claim under the Rosenthal Act, the applicable statute of limitations provides a plaintiff a year from an alleged violation to… Read More

In Hemmings v. Camping Time RV Centers, LLC, 2017 WL 4552896, at *8 (N.D.Ga., 2017), Judge Thrash dismissed independent Holder Rule claims against the holder of an RISC for an RV because the FTC Holder Rule only subjects the holder to claims that can brought against the seller. Next, Bank of America argues that the Plaintiff's FTC Holder Rule claim should be… Read More

In Muhammad v. Reese Law Group, APC,  2017 WL 4557194, at *5 (S.D.Cal., 2017), Judge Anello held that alleged mispresentations made in a debt collection complaint were barred by the Rooker-Feldman doctrine. Here, the Court finds Plaintiff's misrepresentation and over-collection claim is barred by the Rooker-Feldman doctrine. Plaintiff argues she “does not challenge the validity of the 2001 money judgment,” thus Rooker-Feldman is… Read More