In Schlusselberg v. Receivables Performance Management, LLC., 2017 WL 2812884, at *3–4 (D.N.J., 2017), Judge Wolfson granted summary judgment to a debt collector by means of LiveVox's HCI. Here, Defendant argues that LiveVox's HCI system is not by definition an ATDS under the TCPA. Defendant reasons that because HCI specifically integrates human intervention, the system does not possess the automated… Read More
In Turner v. Experian Information Solutions, Inc., 2017 WL 2832738, at *6 (N.D.Ohio, 2017), Judge Zouhary found no recoverable FCRA damages. Turner concedes her damages are limited to emotional distress (Doc. 21 at ¶ 62). . . Turner testified that a mortgage broker advised her in early 2015—several months before the July 2015 dispute letter that forms the basis for this lawsuit—that… Read More
A recent appellate decision provides favorable rulings on numerous important issues affecting California mortgage foreclosure litigation. Kalnoki v. First American Trustee Solutions, LLC, 8 Cal. App. 5th 23 (2017) holds: A notice of default and accompanying declaration are not invalid even if robo-signed. A borrower who admitted default lacked standing under California’s Unfair Competition Law. While foreclosure and loss… Read More
In overturning an Eleventh Circuit decision that put collectors on the hook for filing bad faith claims against a debtor, the United States Supreme Court in Midland Funding, LLC v. Johnson, 137 S. Ct. 1407 (U.S. May 15, 2017) held that filing of a proof of claim that is obviously time-barred is not a false, deceptive, misleading, unfair, or unconscionable… Read More
On February 9, 2017, the Fairness in Class Action Litigation Act of 2017, H.R. 985 (“FCALA”), was introduced in the United States House of Representatives by Rep. Robert Goodlatte (R-Va.). On March 9, 2017, the bill passed 220 to 201 and now proceeds to the Senate. The FCALA, if passed through Congress, will be the most extensive class action reform… Read More
Author: Donald J. Querio Every financial institution dreads the discovery by a class action lawyer of a technical, albeit harmless, glitch in a widely used consumer contract that triggers exposure under a federal or state statute. The “express consent” requirement for auto-dialed calls under the infamous Telephone Consumer Protection Act (“TCPA”) provides just one example. Correspondingly, the class action attorney… Read More
Is a car buyer’s ability to recover attorneys’ fees and costs under California’s Consumer Legal Remedies Act (the “CLRA”) limited by the seller’s timely tender of an attempted “cure”? Three recent cases address the issue in different ways, running the gamut from “no effect” to rejecting any award for attorneys’ fees. Benson v. S. California Auto Sales, Inc., 239 Cal.… Read More
In Snyder v. Ocwen Loan Servicing, LLC, 2017 WL 2798387, at *6 (N.D.Ill., 2017), Judge Kennelly certified a TCPA skip-trace class, but only for injunctive relief purposes. The Court reserved the issue whether a liability class was fatally fail-safe. Ocwen also argues that part of plaintiffs' proposed class definition creates an impermissible ‘fail-safe‘ class and therefore that the Court should deny… Read More
In Caldera v. American Medical Collection Agency, 2017 WL 2812898, at *5 (C.D.Cal., 2017), Judge Marshall certified a TCPA skip-trace class. Plaintiff contends that prior express consent is not an individualized issue in this case, because the proposed Class is comprised only of individuals who were skip traced, or for whom Defendant did not have a valid phone number on… Read More
In Ellington v. First Premier Bank, 2017 WL 2733936, at *1–2 (M.D.Tenn., 2017), Judge Trauger permitted a third party counter-claim to proceed against the party who provided the telephone number that the TCPA defendant dialed. Plaintiff filed this action against Defendant First Premier Bank for alleged violations of the Telephone Consumer Protection Act (“TCPA”). Plaintiff alleges that Defendant violated the… Read More
In Huizer v. Wells Fargo Bank, et. al., 2017 WL 2813181, at *3–4 (E.D.Cal., 2017), Judge O'Neill denied a furnisher's motion to dismiss a CCRAA claim grounded in post-bankruptcy credit reporting. This standard is met when a complaint plausibly alleges that a furnisher failed to report a debt as discharged. Venugopal v. Dig. Federal Credit Union, 2013 WL 1283436, at… Read More
In O'Shea v. American Solar Solution, Inc., 2017 WL 2779261 (C.D. Cal. 2017), Judge Lorenz rejected the Romero standing argument and found Article III standing for a TCPA class action plaintiff. This Court is not bound by Romero and, like a majority of district court cases to consider the issue, disagrees with the reasoning in that decision. As the Supreme Court stated in Spokeo, the… Read More
In Reyes v. Lincoln Automotive Financial Services, Inc., 2017 WL 2675363, at *6 (C.A.2 (N.Y.), 2017), the Court of Appeals for the Second Circuit held: We are sensitive to the argument that businesses may undermine the effectiveness of the TCPA by inserting “consent” clauses of the type signed by Reyes into standard sales contracts, thereby making revocation impossible in many instances.… Read More
In Klein v. Commerce Energy, Inc., 2017 WL 2672290, at *10 (W.D.Pa., 2017), Judge Conti granted summary judgment to a TCPA defendant against a Plaintiff who received calls over VoiP and through Google. There is no dispute that the challenged calls were made to Klein's VoIP number. Collectcents and Commerce Energy, however, dispute that either of them can be held… Read More
In Nextgear Capital, Inc. v. International Motors Exchange, Inc., 2017 WL 2591282, at *4 (Cal.App. 2 Dist., 2017), The Court of Appeal found in an unpublished decision that the Floorplan Lender's unlicensed status did not void the commercial loan. Defendants contend the February 6, 2009 promissory note is illegal because plaintiff was not a licensed finance lender under the Finance Lenders Law… Read More
In Mei Ma v. Convergent Outsourcing, Inc., et al., 2017 WL 2558439, at *3 (C.D.Cal., 2017), Judge Kronstadt denied a motion to dismiss, finding that the Plaintiff had Spokeo standing. Defendant's analysis is unpersuasive. There is no material difference between receiving an unsolicited call as part of a general marketing effort and receiving one as part of an effort to… Read More
In Henderson v. Santander Consumer USA (S.Ct. No 16-349,) Justice Gorsuch authored the opinion holding that Santander's purchase of the CitiFinancial automobile portfolio did not render it a debt collector under the FDCPA. Justice Gorsuch's folksy writing offered commentary and dicta that undoubtedly will create more litigation. For example, in setting the stage for the issue to be decided, Justice Gorsuch… Read More
In Rojas v. X Motorsport, Inc., 2017 WL 2404953, at *3–4 (N.D.Ill., 2017), Judge Feinerman granted a summary judgment to a car dealer against whom a TILA claim was filed. The parties agree that the RISC disclosed all the information that TILA demands, but Rojas contends that the disclosures were illusory—not “meaningful,” as TILA demands— because the parties' contract was… Read More
In Mbazomo v. ETourandTravel, Inc., 2017 WL 2346981, at *3 (E.D.Cal., 2017), Judge Bastian compelled production of class-wide names and telephone numbers of potential classmembers. Defendant objects to the disclosure of names and telephone numbers of potential class members on privacy grounds. Plaintiff further points out that the parties have signed a protective order, while Defendant argues that that protective… Read More
Severson & Werson authored the attached Article on D&O Insurance coverage for TCPA claims entitled, "Directors’ & Officers’ Liability Insurance Coverage for Claims Brought Under the Telephone Consumer Protection Act, and the 9th Circuit’s Anticipated Decision in Los Angeles Lakers v. Federal Insurance Company". Read More
