Consumer Finance

In Kohler v. Greystar Real Estate Partners, LLC, 2017 WL 1198925, at *3 (S.D.Cal., 2017), Judge Houston dismissed a Rosenthal Act case because the Plaintiff had not pleaded that the Defendant collecting renting fell within its terms. This Court agrees with Defendant and finds that Plaintiff's claim fails to establish that Defendant was engaged in the collection of consumer debt.… Read More

In Zeidel v. A&M (2015) LLC, 2017 WL 1178150, at *6 (N.D.Ill., 2017), Judge Dow certified a TCPA class, but modified the plaintiff's class definition. Plaintiff responds that the express written consent language provides an “objective criteria” and is an easy metric for identifying proper class members. [121, at 5–6.] Plaintiff also notes that some courts have certified classes that include… Read More

In Rodrigo v. Barclays Bank Delaware, 2017 WL 1155373, at *4–5 (S.D.Cal., 2017), Judge Houston dismissed an FDCPA case grounded in allegedly suing on a stale debt and filing a false proof of service in the underlying action. Construing all inferences in the light most favorable to Plaintiff, the Court finds that the state law collection action brought against Rodrigo… Read More

In Davis v. AT&T Corp., 2017 WL 1155350, at *3–4 (S.D.Cal., 2017), the District Court denied class certification in a TCPA case.  The Court that Plaintiff's efforts to change the class definition during the certification proceedings was not permitted. This proposed class is not simply a narrower version of that proposed in the Complaints. It is an entirely different class. … Read More

In Lemieux v. Lender Processing Center, 2017 WL 1166430, at *3–4 (S.D.Cal., 2017), the District Court addressed whether a TCPA plaintiff had Art. III standing. Finally, in Romero v. Department Stores National Bank, No. 15-cv-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016), the court began from the premise that “[a] plaintiff cannot have suffered an injury in fact as… Read More

In Carlin v. Davidson Fink, LLP, 2017 WL 1160887, at *5–7 (C.A.2, 2017), the Court of Appeals for the Second Circuit said that a letter that sought unspecified “fees, costs, additional payments, and/or escrow disbursements” that were not yet due at the time the statement was issued violated the FDCPA. The remaining inquiry is whether Davidson Fink adequately stated the… Read More

In Pantoja v. Portfolio Recovery Associates, LLC, 2017 WL 1160902, at *3–7 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that a debt purchaser's letter collecting on 20-year old debt violated the FDCPA. We start with law that we believe is settled. First, a debt collector violates the Act by suing to collect a consumer debt… Read More

In White v. Chase Bank USA, N.A., 2017 WL 1131898, at *2–6 (E.D.N.C., 2017), Judge Britt held that an FCBA claim could proceed past the pleadings stage but an EFTA claim could not.  The Plaintiff adequately pleaded an FCBA claim. Plaintiff first alleges that Chase violated the billing dispute procedures contained in the FCBA because it failed to conduct a… Read More

In Park v. Webloyalty.com, Inc., 2017 WL 1149516, at *1–2 (C.A.9 (Cal.), 2017), the Court of Appeals for the Ninth Circuit said the following facts gave rise to a proper EFTA claim.  "After Kevin Park bought a gift certificate for his minor son Matthew from Gamestop.com, he saw a coupon for $10.00 on the Gamestop.com purchase confirmation page. He clicked… Read More

In Flores v. Adir International, LLC, 2017 WL 1101103, at *1 (C.A.9 (Cal.), 2017), the Court of Appeals for the Ninth Circuit said that a TCPA Plaintiff pleaded enough to show the use of an ATDS. Flores alleged facts sufficient to permit the district court to reasonably infer that Adir used an ATDS, as the TCPA defines that term, to… Read More

In Romero v. Department Stores National Bank, 199 F.Supp.3d 1256, 1265 (S.D. Cal. 2016), the California District Court held that a TCPA plaintiff must show that their injury from autodialed calls was substantively different than had the calls been manually dialed; “Moreover, the specific facts of this case reveal that any harm suffered by Plaintiff is unconnected to the alleged… Read More

In St. Louis Heart Center, Inc. v. Nomax, Inc., 2017 WL 1064669, at *2 (E.D.Mo., 2017), Judge White dismissed a TCPA class action because the class representative lacked standing. The Court agrees that SLHC has not alleged a concrete and particularized injury arising from the alleged deficiency in the opt-out notice. Spokeo,, 136 S. Ct. at 1548. Further, the Court… Read More

In Verdun v. Fidelity Creditor Service, Inc., 2017 WL 1047109 (S.D. Cal. 2017), Magistrate Judge Bartick granted partial summary judgment to a debt collector that its letter was not misleading under the FDCPA or Rosenthal Act. Here, Defendant included in its letter to Plaintiff a sentence summarizing section 1788.21 of the California Civil Code. The sentence read, "The Rosenthal Act, California Civil Code… Read More

In Momentum Commercial Funding, LLC v. Beasley, 2017 WL 1063840 (E.D. Cal. 2017), Judge Mendez dismissed a VLA claim brought by a professional basketball player against his vehicle leasing claim. Beasley argues Momentum willfully violated the VLA by not complying with the statute's disclosure requirements. Countercl. ¶¶ 21-28. Specifically, Beasley states Momentum violated section 2985.8(c)(1) by not disclosing in the Lease that… Read More

In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff's claim against the insurer.  Judge Snyder also said that dual purpose text messages can trigger the TCPA's written consent requirement.… Read More

In Lauren Cummings v. Jaburg & Wilk, P.C., 2017 WL 977574, at *4–5 (D.Ariz., 2017), the District Court granted summary judgment under the FDCPA because the misstatement of the debt was not material under 9th Circuit precedent. The Court finds that Ninth Circuit precedent controls the facts of this case in favor of Defendant. Under the FDCPA, § 1692e prohibits… Read More

In Smith v. Stellar Recovery, Inc. 2017 WL 955128, at *3 (E.D.Mich., 2017), Judge Murphy granted summary judgment to a TCPA defendant based on the fact that its dialer system required human intervention. II. Predictive Dialer Objection.  In her next objection, Smith argues that Stark admitted that the automated call distributor (ACD) system had ‘predictive dialer functionality‘ which makes the… Read More

In Mendez v. Optio Solutions, LLC, 2017 WL 914587, at *3 (S.D.Cal., 2017), the Court declined to stay a TCPA case pending the outcome of the ACA Int'l proceedings in the D.C. Circuit Court. Upon review of the parties' arguments in support and in opposition of a stay, as well as the reasoning of other courts to address the present… Read More

Anderson v. Experian Information Solutions, Inc., 2017 WL 914394, at *3–6 (N.D.Cal., 2017), Judge Freeman dismissed an FCRA claim grounded in a furnisher's and CRA's Ch. 13 credit reporting. Experian argues that even if Plaintiff had alleged his FCRA claim under § 1681i, the claim would fail because Plaintiff has not alleged facts showing that Experian's credit reporting was inaccurate.… Read More

In Hinderstein v. Advanced Call Center Technologies, 2017 WL 751420 (C.D. Cal. 2017), Magistrate Judge Bristow found that the number and pattern of calls to a debtor did not violate the FDCPA. Courts also have found that “[c]alling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the… Read More