In Sartin v. EKF Diagnostics, Inc., 2016 WL 7450471, at *6–7 (E.D.La., 2016), Judge Vance refused to strike a TCPA class action. [D]efendants argue that Dr. Sartin's proposed class definition fails to establish an ascertainable group, whose boundaries can be defined and policed in an administratively feasible way. To maintain a class action, the proposed class must be adequately defined… Read More
In St. Clair v. CVS Pharmacy, Inc. 2016 WL 7489047, at *2 (N.D.Cal., 2016), Judge Chhabria denied a motion to dismiss a TCPA grounded in automated calls reminding of prescription refills. Another strike against CVS's argument is that the FCC has addressed automated prescription reminders in a different context. In addition to the two statutory exemptions to TCPA liability (“emergency purposes”… Read More
In Arkow v. Commissioner of Internal Revenue, 2016 WL 7377286 (U.S. Tax Ct. 2016), Judge Vasquez held that a TCPA plaintiff failed to report taxable income on a $3,000 TCPA settlement. In December 2011 petitioner husband filed a complaint against Wyndham in the Superior Court of California for Los Angeles, California, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. sec. 227… Read More
In Lawrence v. Bayview Loan Servicing, LLC, --- Fed.Appx. ----2016 WL 7407243 (11th Cir. 2016), the Court of Appeals for the 11th Circuit found that a TCPA re-established consent to be called by an autodialer when he gave his telephone number again to the caller without qualification. Lawrence argues that the District Court erred by finding that, as a matter of law,… Read More
In Warciak v. One, Inc., 2016 WL 7374278 (Approx. 5 pages), Judge Kennelly allowed a TCPA claim to proceed against a social networking app. One argues that the After School App functions just like TextMe and therefore that its users initiate the allegedly unlawful text messages. Def.'s Mem. in Supp. of Mot. to Dismiss 9–10. But Warciak's allegations identify significant differences between… Read More
In Baseline Financial Services, Inc. v. Hobbs, 2016 WL 7243531, at *4–6 (Cal.App. 4 Dist., 2016), the Court of Appeal in an unpublished decision found that an automobile lender complied with the mailing requirements of the ASFA. It is undisputed that Bank of the West sold the vehicle on March 18, 2010. Baseline presented in evidence an NOI with respect… Read More
In Bridging Communities, Inc. v. Gamble Plumbing and Heating, Inc., individually and as the representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. TOP FLITE FINANCIAL INCORPORATED, Defendant-Appellee., 2016 WL 7241401, at *4–5 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit found that common questions predominated in a TCPA blast-fax class action, and reversed the District… Read More
In Boyd v. Wells Fargo Bank, N.A., 2016 WL 7323293, at *6–9 (S.D.Ga., 2016), Judge Wood found that a Furnisher's reinvestigation of a FCRA dispute was reasonable and that the Plaintiff had suffered no damages. Boyd is a nuclear submarine missile technician, who executed a power of attorney authorizing his then-wife, Siana Boyd, “to borrow money and to execute in… Read More
In Raceway Ford Cases, the California Supreme Court found that a car dealer did not violate the AFSA in backdating a RISC to the date of sale when financing could not be found after a spot-delivery. The Automobile Sales Finance Act (ASFA), also known as the Rees-Levering Motor Vehicle Sales and Finance Act (Civ. Code, § 2981 et seq.) is… Read More
In Mbazomo v. Etourandtravel, Inc., 2016 WL 7165693 (E.D. Cal. 2016), Judge Bastian found Art. III standing in a TCPA case. The Court concludes that Plaintiff’s alleged harm is sufficiently concrete to survive the motion to dismiss. The history of sustaining claims against both unwelcome intrusion into a plaintiff’s seclusion and unceasing debt-collector harassment are squarely “harm[s] that [have] traditionally… Read More
In Ruvalcaba v. Ocwen Loan Servicing, LLC, 2016 WL 7178855 (S.D. Cal. 2016), the Court held that billing statements were permitted to be sent to a debtor despite being represented by counsel. Plaintiff alleges that Ocwen violated both 15 U.S.C. § 1692c (incorporated by reference in the California FDCPA by California Civil Code § 1788.17) and California Civil Code §… Read More
In Wilkes v. Caresource Mgmt. Group Co., 2016 WL 7179298 (N.D. Ind. 2016), Judge Degulio allowed a TCPA class action to proceed beyond the pleadings stage. CareSource argues that the Plaintiffs cannot satisfy the predominance requirement because each potential class member’s claim would require individual inquiries into whether that class member provided consent and, if so, whether they revoked that… Read More
In Horowitz v. GC Services Limited Partnership, 2016 WL 7188238, at *9 (S.D.Cal. 2016), Judge Anello granted summary to an FDCPA plaintiff as to voicemail messages left that failed to give meaningful disclosure. However, it does not follow that Defendant had to either leave a voicemail lacking the disclosures required by section 1692d(6) or leave a voicemail that violates section… Read More
In Miran v. Convergent Outsourcing Inc., 2016 WL 7210382, at *5 (S.D.Cal., 2016), Judge Battaglia found that a debt collector's offer letter on an out-of-statute debt did not violate the FDCPA because it was neither deceptive nor threatened to sue. Finding that the issue of novation is a factual question undeterminable by the evidence presented by Plaintiff, the Court looks… Read More
In Mestayer v. Experian Information Solutions, Inc, 2016 WL 7188015, at *3 (N.D.Cal., 2016), Judge Chen dismissed an FCRA case based on a furnisher's post-bankruptcy reporting. Even assuming that deviating from Metro 2 could be misleading (and hence actionable, see Gorman, 584 F.3d at 1163) when the underlying information is accurate, the TAC fails to adequately allege that CapOne's reporting… Read More
In Herrera v. Allianceone Receivable Management, Inc., 2016 WL 7048318, at *8 (S.D.Cal., 2016), Judge Moskowitz granted summary judgment to debt collector on the basis that the debt collector did not know that the information it furnished to a CRA was inaccurate at the time it furnished the information. Defendant moves for summary judgment on this claim, arguing that there is… Read More
In Hunsinger v. Gordmans, Inc., 2016 WL 7048895, at *5–6 (E.D.Mo., 2016), Magistrate Judge Nocel deferred summary judgment on whether an ATDS was used until there was further discovery undertaken. The question at issue is whether the mGage platform Gordmans used to send the text messages constitutes an ATDS. The TCPA defines an ATDS as “equipment which has the capacity… Read More
In Tillman v. Ally Financial, Inc. 2016 WL 6996113 (M.D. Fla. 2016), the Court allowed a TCPA class action proceed, denying that the class definition is a "fail-safe" class. Finally, defendant moves in the alternative to strike the Complaint's class allegations on the ground that plaintiff has proposed an impermissible “fail-safe” class. A fail-safe class is one whose definition incorporates the elements… Read More
In Deaguero v. Mountain Lion Acquisitions, Inc., 2016 WL 7030364 (2016), the California Court of Appeal in an unpublished decision found that the CFL does not prohibit the sale of debt to an unlicensed entity. Deaguero's claims depend upon his construction of section 22340, subdivision (a). Specifically, his claim that Mountain Lion violated the FDCPA and RFDCPA is based on the… Read More
In Williams v. Nationstar Mortgage, LLC, 2016 WL 6905382, at *3 (D.Or. 2016), Judge Coffin stayed a TCPA case until the ACA Int'l proceedings are completed. Moreover, this court finds that staying these proceedings until a decision is rendered in ACA International could lead to reduced discovery on the issue of whether defendant used an ATDS to contact plaintiffs. Such… Read More
