Consumer Finance

In Mamisay, et. al. v. TD Bank USA, et. al., 2017 WL 3387476, at *3–4 (N.D.Cal. Aug. 7, 2017), Judge Gonzalez-Rogers dismissed some claims but allowed some to proceed under the FCRA. As analyzed in the Court's prior ruling, the reporting of balances due, or past due, does not constitute an “actual inaccuracy” simply because a bankruptcy proceeding is pending. Biggs… Read More

In Eddie Yaklin Ford Lincoln Mercury Nissan, Inc. v. American Road Services Company, Universal Underwritings Insurance Company, NO. 2:15-CV-399, 2017 WL 3387186, at *1–3 (S.D.Tex. Aug. 4, 2017), Judge Tagle denied a Dealer's Insurer's MSJ for an identity theft loss presented by the Dealer.  The facts forming the basis of the loss were as follows: Yaklin Ford is an authorized… Read More

In Mendez v. Optio Solutions, LLC, 2017 WL 3315971, at *2 (S.D.Cal. 2017), the District Court denied a TCPA defendant's MSJ to allow discovery into the Defendant's dialer system. Mendez contends that she cannot adequately respond to Optio's summary judgment motion without discovery relating to Optio's “ ‘custom-built’ dialing system.” (Doc. No. 36 at 28.) Specifically, Mendez argues she needs… Read More

In McWhorter v. Ocwen Loan Servicing, LLC, No.: 2:15-cv-01831-MHH, 2017 WL 3315375 (N.D. Ala. August 3, 2017), Judge Haikala found that a defendant’s charging of fees associated with telephonic Speedpay fees stated a claim under the FDCPA. When Mr. McWhorter and Mr. Fielder made loan payments to Ocwen online and over the telephone, Ocwen and Western Union charged convenience fees,… Read More

The CFPB has dominated the press on fair lending in auto finance.  Last week, however, the California Department of Fair Employment and Housing obtained a $6.2M verdict and an injunction against a sub-prime auto lender who used gender as basis upon which to bid for and/or purchase RISCs from automobile dealers with whom it did business.  Links hereto are: DFEH… Read More

The Court of Appeals for the 9th Circuit affirmed the jury's verdict in the Kim v. BMW Financial Services, LLC., -- Fed.Appx. -- 2017 WL 3225710 (9th Cir. July 31, 2017). The district court properly denied BMW FS’s motion for a new trial on the amount of damages awarded under the FCRA claim. . . Kim’s testimony that he was… Read More

In Geismann, M.D., v. ZocDoc, Inc., 14 Civ. 7009 (LLS), 2017 WL 3263140 (S.D.N.Y. July 28, 2017), Judge Stanton filled the gap left by Campbell-Ewald, and allowed a TCPA defendant to tender to the Court all sums for which it could possibly be liable and then move for summary judgment on an Article III basis. I agree with those cases… Read More

In Vandonzel v. JP Morgan Chase Bank, et. al., No. 17-CV-01819-LHK, 2017 WL 3267571 (N.D. Cal., July 31, 2017), Judge Koh denied a furnisher's FRCP 12b6 Motion in an FCRA case. However, Gorman does not support Chase’s argument that an investigation of disputed information is narrowly limited to the exact wording of the dispute letter. In Gorman, the Ninth Circuit… Read More

On July 25, 2017, the CFPB issued a Compliance Bulletin cautioning against misrepresenting and adding convenience fees to pay-by-phone payment options.  A copy of the bulletin is here and our take on the CFPB's bulletin is here.   For further questions on convenience fees, please contact Erik Kemp at ek@severson.com or Scott Hyman at sjh@severson.com Read More

In Franklin v. DePaul University, No. 16 C 8612, 2017 WL 3219253 (N.D. Ill. July 28, 2017), Judge Lee allowed a TCPA text message claim to proceed past the pleading stage. DePaul nevertheless asks the Court to ignore Franklin's allegation that he never gave prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a motion to dismiss.”… Read More

Stating the obvious, Judge Eagles made up procedures on how to administer a post-judgment TCPA class:  "Few contested class actions of this type have reached this stage, so there is little guidance for the Court." In Krakauer v. Dish Network, LLC, No. 1:14-CV-333, 2017 WL 3206324 (M.D. N.C. July 27, 2017), Judge Eagles decided not to enter a final judgment in the Krakauer matter following… Read More

In Bonanno v. New Penn Financial dba Shellpoint Mtg. Servicing, Case No: 5:17-cv-229-Oc-30PRL, 2017 WL 3219517 (M.D. Fla. July 28, 2017), the District Court found that the FDCPA affords no right to punitive damages. Shellpoint argues Bonanno's punitive damages and injunctive relief claims under the FDCPA should also be dismissed. The Court agrees. Damages exceeding the $1,000 cap in section… Read More

In Boseman v. Prestige Auto Sales, Inc., No. 3:16-CV-728, 2017 WL 3172742, at *2 (M.D.Tenn. July 25,  2017), Judge Collier granted summary judgment to a car buyer who's RISC failed to include a date for the final payment due under the RISC. The next issue the Court must address is whether Defendant failed to provide Plaintiff with the required TILA… Read More

In Grubb v. Green Tree Servicing, LLC, 2017 WL 3191521, at *8–9 (D.N.J., 2017), Judge Wolfson held that a loan servicer's acquisition of servicing rights for an account in default triggered the FDCPA. Post-assignment servicers and owners of debts that were in default at the time of assignment, however, are treated differently under the law. “[A]n assignee may be deemed… Read More

In Devine v. The Judge Law Firm, No.: 16-CV-02999-AJB-MDD, 2017 WL 3118777 (S.D. Cal. July 21, 2017), the Court found that a creditor is not vicariously responsible for the actions of its attorney under the FDCPA if the credit is not itself subject to the FDCPA. Presently, the Court is persuaded by the weight of authority limiting FDCPA liability to… Read More

In Kalmbach v. National Rifle Association of America, Case No. C17-399-RSM, 2017 WL 3172836 (W.D. Wash. July 26, 2017), Judge Martinez rejected the Romero standing argument premised on the argument that manually dialed and automatically dialed calls are equally annoying. Defendants argue Ms. Kalmbach lacks standing to bring a claim under the WADAD for lack of an injury because “Kalmbach… Read More

In Ford Motor Credit Company v. Hall, No. 16-13333, 2017 WL 3084373 (D. Mich. July 20, 2017), Judge Borman found that the bankruptcy court exceeded its authority by sua sponte rejecting an auto finance company’s negotiated reaffirmation agreement and, instead, imposing conditions on the finance company that resembled a judicially created “ride-through”. Appellant challenges the Bankruptcy Court “Order Disapproving Reaffirmation… Read More

In Pigg v. Fair Collections & Outsourcing of New England, Inc., No. 1:16-cv-01902-JMS-DML, 2017 WL 3034266 (D. Ind. July 18, 2017), Judge Magnus-Stinson held that a rental agreement was not a consumer credit transaction under the FCRA so a debt collector had an impermissible purpose to access the debtor consumer report for collection purposes. Here, the Court emphasizes that Fair Collections' only… Read More

In Cunningham v. Tollfreezone.com, No. 16-cv-761-jdp2017, WL 3055506 (D.Wis. July 18, 2017), Judge Peterson said how to calculate TCPA damages where each call violates multiple statutory provisions of the TCPA. Default establishes defendants' liability for the TCPA violations alleged in Cunningham's complaint, so the analysis must next turn to damages. The TCPA allows for $500 in damages for each violation of… Read More

In In re: Edwards, No. 14–50717, 2017 WL 3037451 (W.D. Ky, July 17, 2017), Judge Stout found that a marine retailer's conversion of funds out-of-trust from the sale of collateral rendered his debt to his floorpan lender non-dischargeable. Taking these points together, this Court has no trouble finding that Mr. Edwards both read the documents he signed, and was aware of CFSB's… Read More