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
In Jackson v. Pmab, LLC, 2017 WL 4316096, at *3–4 (D.N.J., 2017), Judge Rodriquez granted partial summary judgment to a TCPA defendant, but discussed the extent to which Osorio agency survived the FCC 2015 Order. According to the FCC, the manner in which a business obtains a telephone number informs the consideration of whether a number was “knowingly released” and, therefore, permissible… Read More
California Appellate Tracker 09.21.2017 Read More
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In Chaiwong v. Hanlees Fremont, Inc., 2017 WL 3838106 (N.D. Cal. Sept. 1, 2017), Judge Gilliam dismissed a Rosenthal Act/UCL claim filed against an automobile lender by a consumer and the dealer to whom the customer traded in their vehicle. The following facts are undisputed unless otherwise noted. Plaintiff leased a Chevrolet Equinox from Fremont Chevrolet on June 22, 2010.… Read More
In Direct Capital Corporation v. Brooks, 2017 WL 3725649, at *1 (Cal.App. 3 Dist., 2017), the Court of Appeal affirmed the trial court's decision that "a debt incurred by an attorney-spouse for office computer equipment was for the necessaries of life for that particular marriage, in part because that spouse's law practice generated community property income". The facts were as… Read More
In Michel v. Credit Protection Assocation, 2017 WL 3620809, at *4–5 (N.D.Ill., 2017), Judge Dow granted summary judgment for a debt collector who held two different creditors' accounts, and was autodialing a debtor. The Court explained that a debtor's revocation of consent to be called when the debt collector called on only one of the accounts did not revoke consent… Read More
In Lanteri v. Credit Protection Assocation, LP, 2017 WL 3621299, at *4 (S.D.Ind., 2017), Judge Lawrence refused to certify a TCPA "stop-texting" revocation of consent class action. The FCC has stated that “[c]onsumers have a right to revoke consent, using any reasonable method.” Federal Communications Commission Record, F.C.C. 15-72, 23, appeal docketed as ACA Int'l v. FCC, No. 15-1211 (D.C.C.… Read More
In Arora v. Transworld Systems, Inc., 2017 WL 3620742, at *1 (N.D.Ill., 2017), Judge Kokoras held that a point-and-click calling system was not an ATDS due to the human intervention involved. The facts were as follows: In contrast, TSI claims that from August 25, 2014 through November 17, 2014, it placed a total of 13 calls to Arora. When calling… Read More
In Connector Castings, Inc. v. Newburg Road Lumber Co., 2017 WL 3621329, at *2 (E.D.Mo., 2017), Judge Webber refused to strike an affirmative defense lodging a constitutional challenge to the TCPA. In its first affirmative defense, Defendant asserts, in relevant part, “The Telephone Consumer Protection Act…violates the First Amendment of the United States Constitution on its face and as applied.”… Read More
In Los Angeles Lakers v. Federal Ins. Co., here, the Court of Appeals for the Ninth Circuit held that D&O insurance policies do not cover TCPA claims. The Court of Appeals explained: When Federal received a request from the Lakers to defend them against the Emanuel complaint, Federal correctly identified the two TCPA claims as claims for invasion of privacy.… Read More
In Afewerki v. Anaya Law Group, 2017 WL 3567829, at *4–5 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit held that a misstatement of the debt in a debt collection complaint was material. We agree and conclude that Anaya Law Group's $3,000 overstatement of the principal due in the state court complaint,2 exacerbated by the statement of an… Read More
The legalese used in the opinion made the decision almost incomprehensible, and would have made Bryan Garner throw a fit. But, the Supreme Court of the Virgin Islands nevertheless got it right in Cornelius v. Bank of Nova Scotia, 2017 WL 3412202, at *6–8 (V.I., 2017), when it held that an unperfected lender who erroneously filed a termination statement still held… Read More
In Jones v. Royal Administration Services, Inc., --F.3d --, 2017 WL 3401317, at *6 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit said that federal common law decides agency issues in TCPA telemarketing cases. Royal does not challenge whether there is sufficient evidence in the record to create a genuine issue of material fact as to whether AAAP's… Read More
After initially suggesting in Meadows v. Franklin Collection Service, Inc., 2011 WL 479997 (11th Cir. 2011) that it might take a decent approach towards TCPA litigation, the Court of Appeal for the 11th Circuit in Schweitzer v. Comenity Bank, 2017 WL 3429381, at *3 (C.A.11 (Fla.), 2017) issued another in a series of pro-TCPA-plaintiff decisions ensuring more work for its already overworked… Read More
In Goode v. Adler Wallach Associates, Inc., NO. 17-261, 2017 WL 3437900, at *3 (E.D.Tex., August 10, 2017), the District Court adopted the majority rule that the FDCPA does not provide injunctive relief as a remedy for private litigants. In light of these holdings, this Court declines to depart from the majority rule that the FDCPA does not provide equitable… Read More
