In In re Keller, BAP No. EC–16–1152–BJuTa, Bk. No. 12–22391, 2017 WL 2312849 (9th Cir. BAP May 26, 2017), the Court of Appeals for the 9th Circuit BAP held that a creditor did not violate the automatic stay or the order confirming the debtor's Chapter 13 plan by reporting a debt to a credit reporting agency as overdue or delinquent during… Read More
In Valle v. First National Collection Bureau, Inc., Judge Scola found for the debt collector in a "glassine window" case. Read More
In Midland Funding, LLC v. Johnson, the SCOTUS held that allowing bankrupt debtors to invoke the FDCPA would upset a “delicate balance” and “authorize a new significant bankruptcy-related remedy in the absence of language in the [Bankruptcy] Code providing for it.” Instead, barring debt collectors from filing stale claims would require creditors to investigate the merits of affirmative defenses. “The upshot… Read More
In Doherty v. Comenity Capital Bank & Comenity Bank, Case No.: 16cv1321-H-BGS, 2017 WL 1885677 (S.D. Cal. 2017), Magistrate Judge Skomal allowed pre-certification discovery – including out-bound dial lists, but denied discovery of skip-traced and trapped numbers where a file-by-file review would be required. The Court ordered production of out-bound dial lists, despite difficulties in production by Plaintiff and overbreadth… Read More
In Simpson v. American Credit Acceptance, LLC, 2017 WL 1968284, at *3–4 (E.D.Tenn., 2017), Judge Guyton granted summary judgment to an auto finance company under the FDPCA because the account was not in default at the time of the assignment. The Defendant asserts that it is not subject to the FDCPA because it is not a debt collector. Further, the… Read More
In Reichman v. Pshmark, Inc., 2017 WL 2104273, at *2–3 (S.D.Cal., 2017), the Court granted summary judgment on the basis that totality of the circumstances did not trigger the TCPA. In determining whether an app or its user is the maker of a call, the FCC explained that it looks to “the totality of the facts and circumstances surrounding the… Read More
In Blow v. Bijora, Inc., 2017 WL 1731494, at *6 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that the district court erred in granted summary judgment on the basis that no ATDS was used. Citing cases that predate the FCC's most recent rulings, Akira argues that Opt It's software must be able to dial random… Read More
In Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., et. al. 2017 WL 1806583, at *1–2 (N.D.Cal., 2017), Judge Rodgers certified a TCPA class consisting of potentially 500,000 putative classmembers. Plaintiffs Abante Rooter and Plumbing, Inc., Mark Hankins, and Philip K. Charvat bring this punitive class action against defendants Alarm.com, Inc. and Alarm.com Holdings, Inc. (collectively “Alarm.com”) alleging four counts;… Read More
In Brickman v. Facebook, Inc.,Case No. 16-cv-00751-TEH, 2017 WL 1508719 (N.D. Cal. April 27, 2017), Judge Henderson granted interlocutory appeal of his January 27, 2017 ruling denying Facebook's motion to dismiss that found that Facebook's "Happy Birthday" texts were dialed using an ATDS under the TCPA. For the foregoing reasons, Facebook’s motion to certify the Court’s Order for interlocutory appeal… Read More
In Esparza v. Joe MacPherson Ford, 2017 WL 1534664, at *5–6 (Cal.App. 4 Dist., 2017), in an unpublished decision, the Court of Appeal disagreed with the jury's determination that a RISC was not negotiated primarily in the Spanish language, and held that the trial court should have granted a JNOV. There is nothing in the language of section 1632 which… Read More
In Drayton v. Toyota Motor Credit Corporation, 2017 WL 1485027 (11th Cir. 2017), the Court of Appeals found that an arbitration clause could not be enforced. Lisa Drayton brought a putative class action claim against Toyota after she allegedly received automated telephone calls from Toyota attempting to collect a consumer debt. She alleged that the calls violated the Telephone Consumer Protection Act… Read More
In Harrington v. RoundPoint Mortgage, Judge Chappelle denied a defendant's summary judgment motion, finding a triable issue of fact whether a third party could and did consent for the called party to be called on their cell phone by an ATDS. Defendants next argue that they are entitled to summary judgment on Count one because Harrington provided prior express consent to… Read More
In Declue v. United Consumer Financial Services Company, 2017 WL 1400144, at *2–4 (S.D.Cal., 2017), the District Court disagreed with the standing decision in Romero. This court also respectfully disagrees with Romero. “There is no legal rationale for [Defendant's] argument under an Article III analysis: either a plaintiff shows a concrete and particularized harm for Article III standing because of… Read More
In Rahman v. San Diego Accounts Service, Inc, 2017 WL 1387206 (S.D. Cal. 2017), the District Court found that a debt collector could assert "offset" of the balance owing on the debt to the Plaintiff's Rosenthal Act/FDCPA claim. Defendant’s final affirmative defense is one of “offset.” Specifically, “Defendant contends that any recovery by Plaintiff be offset by the amount owed… Read More
In Karmen Self-Forbes v. Advance Call Technologies, LLC, 2017 WL 1364206 (D. Nev. 2017), Judge Mahan granted summary judgment to a TCPA defendant based on its call records demonstrating that the Plaintiff did not revoke consent, despite Plaintiff's affidavit that she did. “Express consent is not an element of a plaintiff's prima facie case but is an affirmative defense for which the… Read More
In Williams v. LVNV Funding, LLC, 2017 WL 1331014, at *1–2 (N.D.Ala. 2017), Judge Owen Bowdre compelled production of a FCRA plaintiff's settlement with the CRA. Before the court is the Plaintiff Michael Williams' motion to reconsider and motion to stay order to compel disclosure. (Doc. 71). Previously, the court granted Defendants' motion to compel the disclosure of the terms… Read More
In Meridith v. United Collection Bureau, Inc., 2017 WL 1355696, at *2 (N.D.Ohio, 2017), Judge Gaughan compelled production of class data, and ordered Defendant to write a program to do a program search or make its database available to Plaintiff's expert so that he could write the program. The information that Plaintiff seeks is relevant to establishing the size and… Read More
In Ung v. Universal Acceptance Corporation, 2017 WL 1288378, at *1 (D.Minn., 2017), Judge Kyle granted summary judgment to an automobile finance company who manually dialed calls, "refusing to go down the rabbit hole". The Court explained: But against this simple backdrop, the parties have attempted to drag the Court down a rabbit hole, raising complex arguments about the intricacies and… Read More
A copy of the Alert is here: McGill Financial E-Alert 4.11.17 Read More
In McGill v. Citibank, N.A., 2017 WL 1279700, at *1 (Cal., 2017), the California Supreme Court addresses whether the Broughton/Cruz rule survives Concepcion. See Kilgore v. KeyBank, Nat. Ass'n, --- F.3d ----, 2012 WL 718344 (9th Cir. 2012) ("the Broughton–Cruz rule does not survive Concepcion because the rule “prohibits outright the arbitration of a particular type of claim”—claims for broad public… Read More
