In San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, Inc., 2017 WL 4536422, at *2 (N.D.Cal., 2017), Judge Davila found that a confirming text may be, on the facts pleaded, an advertisement that triggers the TCPA. Defendants contend that the text is not advertising or telemarketing because it does not encourage Plaintiff to purchase property, goods or services. Plaintiff argues that the… Read More
Dear Subscribers, We are proud to announce that Severson & Werson's Personal Property Finance weblog (www.calautofinance.com) enters its 10th year, we have decided to export it to the Firm's main (and new and improved!) website (www.severson.com). Your subscriptions to receive our periodic e-mails also will be exported to the new site and yours truly is proud to continue my involvement… Read More
In Farrish v. Navy Federal Credit Union, 2017 WL 4418416, at *2–3 (D.Md., 2017), Judge Chasanow dismissed a TCPA claim based on debt collection calls placed by a credit munition because such calls are exempt from the TCPA. The TCPA prohibits certain problematic telephone solicitation practices. 47 U.S.C. § 227(b). In enacting the TCPA, Congress allowed the Federal Communications Commission (“FCC”)… Read More
In Lundstedt v. I.C. System, Inc., 2017 WL 4281057, at *2–3 (D.Conn., 2017), Judge Meyer allowed an FDCPA claim to proceed based on the call pattern alleged in the Complaint. [D]efendant argues that the alleged pattern of calls—29 calls over a period of 24 days—is legally insufficient to show an intent to annoy, abuse, or harass plaintiff as the statute requires.… Read More
In Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc., 2017 WL 4339788, at *8–9 (N.D.Ill., 2017), Judge Lee rejected the defendant's argument that mini-trials on the issue of consent meant that a class action was not the superior means of adjudicating a TCPA blast-fax class action. Judge Lee found that the defendant did not make a prima facie showing… Read More
In Mohamed v. American Motor Company, LLC., 2017 WL 4310757, at *3–4 (S.D.Fla., 2017), Judge Torres struck the Plaintiff's Expert Jeff Hansen as being unreliable, even though he was qualified to testify. OLO next argues that Mr. Hansen's testimony should be excluded because it is unreliable, as Mr. Hansen did not test, review, or inspect the actual platform or system before… Read More
In FTC v. The Primary Group, Inc., 2017 WL 4329713, at *2 (C.A.11 (Ga.), 2017), the Court of Appeals for the 11th Circuit established what must be proven to establish respondent superior liability on the corporate owner under the FDCPA. We have not yet decided what suffices to show that a corporation's owners, officers, or employees had knowledge of its violations… Read More
In Simpson v. Safeguard Properties, LLC., 2017 WL 4310674, at *4–7 (N.D.Ill., 2017), Judge Gottschall denied summary judgment to a door-hanger company who claimed that it was not subject to the FDCPA. The FDCPA “is not aimed...“at companies that perform ministerial duties for debt collectors, such as stuffing and printing the debt collector's letters.” White v. Goodman, 200 F.3d 1016, 1019… Read More
In Garcia v. Santander Consumer USA, Inc., 2017 WL 4325777, at *2–3 (E.D.Cal., 2017), Judge McGill ordered an auto finance case to arbitration, allowing the Arbitrator to determine the effect of McGill on the enforceability of the Arbitration clause. The arbitration provision stated in part, “Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not… Read More
In McGill v. Citibank, 2017 WL 4382034, at *3 (Cal.App. 4 Dist., 2017) (unpublished), the Court of Appeal put its gloss on the Supreme Court's decision in McGill and what is left for the trial court to decide on remand. The Supreme Court concluded its opinion with the following paragraph: “Our invalidation of the arbitration provision insofar as it purports to waive McGill's… Read More
In Eldridge v. Cabela's Inc., 2017 WL 4364205, at *9–10 (W.D.Ky., 2017), Judge Hale struck the Plaintiff's "stop" class, which Judge Hale re-characterized as a "revocation" class. Cabela's maintains that what Eldridge passes as “Stop” classes are really “Revocation” classes. In other words, the “Stop” classes are comprised of persons who had a prior relationship with Cabela's but subsequently revoked their… Read More
In Golan v. Veritas Entertainment, LLC, 2017 WL 3923162, No. 4:14CV00069 ERW (E.D. Mo. September 7, 2017), Judge Webber found, after a trial on the merits, that the TCPA’s damages provision has constitutional due process limitations and, therefore, reduced the statutory damages to be awarded to $10 per call. The violations in this case involved the use of automated telephone equipment… Read More
The CFPB just issued its Summer Supervisory Highlights regarding complaints lodged against debt collection, a copy of which can be found here. The CFPB notes that its examiners' reviewed numerous companies, both within the united states and from foreign countries, and highlighted the following types of common violations: Unauthorized communications with third parties False representations made to authorized credit card users… Read More
In Medina v. South Coast Car Company, 2017 WL 4128076, at *8 (Cal.App. 4 Dist., 2017), the Court of Appeal held that a settlement agreement entitling Plaintiff to attorneys' fees was not capped by the FTC Holder Rule. In light of the Settlement and section 5, which, the parties agreed, made Medina the “prevailing party,” it is clear from the plain… Read More
Scott Hyman and Alisa Givental published an article in the Conference on Consumer Finance Law Quarterly entitled Hyman & Givental, California's Single Document Rule for Retail Automobile Transactions, 70 Conf. Cons. F. Law Q. 134 (Summer 2017). A copy of the Article can be found here. Read More
Scott Hyman, Don Cram, and Bernie Kornberg published an article in the Conference on Consumer Finance Law Quarterly entitled Hyman, Cram, & Kornberg, The Intersection of the Fair Credit Reporting Act and the Federal Consumer Bankruptcy Laws, 70 Conf. Con. Fin. L. Q 113 (Summer 2017). A copy of the article can be found here. Read More
In Forto v. Capital One Bank, N.A., No. 14-cv-05611-JD (MEJ), 2017 WL 4168529 (N.D. Cal. Sept. 20, 2017), Magistrate Judge James noted the different standards applicable to “reverse” attorneys fees under the FDCPA and the Rosenthal Act, finding that “reverse” attorneys’ fees were not due a debt collector under the FDCPA but were due the debt collector under the Rosenthal… Read More
In Greenley v. Laborers' International Union of North America, Defendant, and United States of America, Intervenor., 2017 WL 4180159, at *1 (D.Minn., 2017), Judge Wright found that a TCPA claim brought against a Union survived a Motion to Dismiss and constitutional challenge. The facts were as follows: Greenley's amended complaint alleges that during a sixteen-month period from November 14, 2014, through March… Read More
In Riazi v. Ally Financial, 2017 WL 4260847, at *6–7 (E.D.Mo., 2017), Judge Hamilton refused to allow an auto lender pursue its debt collection claim as a counterclaim to a TCPA claim because the debt collection claim was permissive. Further, permitting the collection of an underlying debt by way of a counterclaim in a plaintiff's federal TCPA action creates “the risk… Read More
In Hart v. Credit Control, LLC, 2017 WL 4216029, at *3–4 (11th Cir. 2017), the Court of Appeals for the 11th Circuit provided guidance on leaving voicemails for debtors: We find that this voicemail, and other voicemails like it, constitute a communication within the meaning of the FDCPA. Specifically, we hold that a voicemail can, and will, be considered a communication… Read More
