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
In Toldi v. Hyundai Capital America, 2017 WL 736882, at *2–3 (D.Nev., 2017), Judge Gordon found that a TCPA plaintiff had standing to sue, and declined to stay the proceedings pending the outcome of the ACA Int'l decision. A vast number of cases have addressed whether a plaintiff receiving automated calls that violate the TCPA is the sort of intangible… Read More
In Freeman v. Wilshire Commercial Capital LLC, 2017 WL 714389, at *1 (E.D.Cal., 2017), Judge Shubb rejected the argument that a TCPA plaintiff did not have Article III standing. The Ninth Circuit's opinion in Van Patten v. Vertical Fitness Group, No. 14-55980, 2017 WL 460663, ––– F.3d –––– (9th Cir. 2017) is dispositive. The Van Patten court found that, in… Read More
In Bird v. Real Time Resolutions, Inc., 2017 WL 661375, at *8 (N.D.Cal., 2017), Judge Davila dismissed claims against a creditor and the creditor's law firm arising under the FDCPA. Here, Mr. Reyes is an attorney at the law firm Ericksen Arbuthnot, which was retained as defense counsel for Real Time in the lawsuits filed by Plaintiff. Nowhere in the… Read More
In Raczynski v. Daland Nissan, Inc. 2017 WL 603869, at *4–5 (Cal.App. 1 Dist., 2017), the Dealer got hit for $358,000 by a JAMS arbitrator. The customer would not agree to a second arbitration under the RISC's clause allowing one if an award exceeded $100,000, and the trial court refused to order a second arbitration. The Court of Appeal, in an… Read More
In Brinker v. Normandin's, 2017 WL 661372, at *2–3 (N.D.Cal., 2017), Judge Davila dismissed a TCPA case due to lack of Article III standing. Several courts have found that plaintiffs who received automated unsolicited calls have standing to bring TCPA claims. For instance, in Hewlett, the court found that “near daily” calls to the plaintiff's phone over the course of a… Read More
In Leyse v. Lifetime Entertainment Services, Inc., 2017 WL 659894, at *2 (C.A.2 (N.Y.), 2017), the Court of Appeals affirmed the District Court's denial of a 'say-so' class administration class. Leyse argues that the district court abused its discretion in denying, on ascertainability grounds, his motion to certify a class composed of “all persons to whose residential telephone lines [Lifetime] or… Read More
In Blatt v. Capital One Auto Finance, Inc., 2017 WL 660677, at *3–4 (M.D.Tenn., 2017), Judge Sharp granted summary judgment to an automobile finance company on a Plaintiff's EFTA claim. First, Blatt claims that his authorization over the phone does not equate to written authorization as contemplated in the EFTA. (Docket No. 38 at 4). Blatt acknowledges that the EFTA… Read More
In Duguid v. Facebook, Inc., 2017 WL 635117, at *5 (N.D.Cal., 2017), Judge Tygar dismissed a TCPA Plaintiff's First Amended Complaint attempting to plead use of an ATDS. Here, however, Plaintiff has again failed to allege the existence of such a system. At best, his allegations are conclusory, given that he merely asserts that Facebook “maintains a database of phone… Read More
In Professional Collection Consultants v. Lauron, 2017 WL 634714 (Cal.App. 6 Dist., 2017), the Court of Appeal found that an Open Book Account claim sounded in contract, and applied the contract's choice of law clause. This appeal arises out of a credit card debt collection action involving two credit cards. Appellant Professional Collection Consultants (PCC), as an assignee of the original… Read More
In Williams v. Santander Consumer USA, Inc., 2017 WL 492968 (N.D. Ala. 2017), Judge Haikala described how the TCPA could confer jurisdiction on an out-of-state defendant for an out-of-state plaintiff. As the Court has explained, the Tennessee plaintiffs' claims arise from Santander's practice of calling borrowers' cell phones to collect debt. Because of the mobile nature of cell phones, Santander cannot predict… Read More
In In re: Moroni (Ford Motor Credit Company v. Moroni), 2017 WL 436148, at *11 (Bkrtcy.N.D.Ill., 2017), Judge Cassling found that a car dealer's principals could not use the bankruptcy laws to discharge their debt to their floorplan lender. Some courts have held that “a debtor did not have the necessary fraudulent intent when the debtor used money in violation… Read More
In Physicians Healthsource, Inc., v. Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Medica, Inc., 2017 WL 461002, at *4 (2d Cir. 2017), the Court of Appeals for the Second Circuit put some meat on the bones of whether a fax offering a "free seminar" triggers the TCPA. Requiring plaintiffs to plead specific facts alleging that specific products or services would… Read More
In West Loop Chiropractic & Sports Injury Center, Ltd. et al., v. North American Bancard, LLC et al, 2017 WL 404896, at *1–2 (N.D.Ill., 2017), Judge Gilbert allowed TCPA discovery in a blast-fax case as to other faxes besides those that the Plaintiff received. The Court agrees with Plaintiffs that the information they seek is relevant to a decision concerning the… Read More
In Dominguez v. Yahoo!, Inc., 2017 WL 390267, at *20–22 (E.D.Pa., 2017), Judge Baylor granted summary judgment to Yahoo!. Having discussed the expert reports proffered by the Plaintiff, the Court will now consider whether, if the expert reports were admissible, the reports considered together with the experts' testimony at their depositions could establish a factual issue that the Yahoo system… Read More
In Scally v. Ditech Financial, LLC, 2017 WL 371996, at *5–6 (S.D.Cal., 2017), Judge Hayes dismissed an FDCPA class action arising out of collection of discharged debt. In this case, the first amended complaint alleges that Defendant sent letters to the Plaintiff attempting to collect on a discharged debt which contain various statements “falsely implying that the debt remained viable.”… Read More
In Del Valle v. Global Exchange Vacation Club, 2017 WL 433998, at *2–3 (C.D.Cal., 2017), Judge Carter declined to certify a TCPA class action because Plaintiff was not a member of the class she sought to certify. But, Judge Carter opined on how Briseno's elimination of the ascertainability requirement interplays with whether a class action can be managed. Although Rule… Read More
In Van Patten v. Vertical Fitness Group, the Court of Appeals for the Ninth Circuit held that a plaintiff who alleges he received unconsented to text messages or telephone calls has standing to bring a TCPA claim against the sender. Unwanted messages invade privacy interests that are similar to interests protected at common law and to which Congress gave statutory protection.… Read More
On October 19, 2016, the Ninth Circuit Court of Appeals waded into California’s heavily litigated foreclosure arena with a 2-1 opinion in the hotly contested case of Ho v. ReconTrust Company, N.A., 840 F.3d 618 (2016). In a resounding victory for the mortgage banking industry, former Chief Judge Alex Kozinski authored a majority opinion interpreting the federal Fair Debt Collection… Read More
Under 11 U.S.C. § 523(a)(2)(A), a bankruptcy discharge does not apply to any debt “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a false representation, or actual fraud.” The United States Supreme Court recently determined that a false representation by a debtor is not required to satisfy the “actual… Read More
