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
In Chladni v. University of Phoenix, Inc., 2016 WL 6600045, at *3 (E.D.Pa., 2016), Judge Leeson found that a TCPA Plaintiff could not invalidate her consent to receive autodialed calls on the basis that she was not given a meaningful opportunity to avoid them. It is undisputed that on June 22, 2015, when Chladni submitted a job application online, she… Read More
In Tun v. Wells Fargo Bank, the California Court of Appeal found that the Trial Court did not err in finding, pre-trial in limine, that an Automobile RISC Holder's tender to the Court of money under Civil Code 2983.4 did not constitute an "admission of liability". When the Trial Court, despite a defense verdict in favor of the Dealer and the… Read More
In Dillard v. Thomasville Auto, 2016 WL 6471928--- F.Supp.3d ---- (M.D.N.C. 2016), Judge Schroeder found that disjointed printing on a RISC did not constitute a TILA violation. The court finds that in this case no reasonable consumer would interpret the disclosure form in the manner Dillard argues, and it would not be reasonable and equitable to do so. The construction… Read More
In Munoz v. California Business Bureau, Inc., 2016 WL 6517655 (E.D. Cal. 2016), Magistrate Judge McAuliffe found that a debt subject to the Rosenthal Act did not lose its character because it was settled, nor did the settle end the debtor’s counsel’s representation so as to allow direct communication with the debtor by the debt collector’s counsel. First, Judge McAuliffe… Read More
In Wick v. Twilio Inc., 2016 WL 6460316, at *2–3 (W.D.Wash., 2016), Judge Lasnik dismissed a TCPA Plaintiff's claim against Twilio on the basis that the Plaintiff consented to receive the text messages at issue. The parties disagree as to whether the text and call at issue qualifies as telemarketing. If the text and call do qualify as telemarketing, then… Read More
In Goglin v. BMW of North America, LLC, 2016 WL 6135482, at *5–6 (Cal.App. 4 Dist., 2016), the Court of Appeal held that a so-called Benson response to a CLRA letter does not immunize an auto dealer/manufacturer from attorneys' fees incurred to prosecute a claim under the Song-Beverly Act. Both BMW North America and BMW San Diego contend Goglin is… Read More
McDonald v. Wells Fargo Bank, N.A., 2016 WL 6205302, at *2 (W.D.Pa., 2016), Judge Kearny addressed what happens when a decedent is current on her car loan at the time of death, but the creditor allegedly breaches the contract after death. Judge Kearny found that the administrator lacks standing to sue under the survivor statute because there was no pre-death… Read More
In Todd v. Midwest Motors Sales & Service, Inc., 2016 WL 6155690, at *5 (W.D.Mich., 2016), Judge Holmes Bell denied summary judgment to a car dealer under TILA. The facts were as follows. On February 27, 2016, Plaintiff visited Defendant Midwest Motors to purchase a vehicle. He selected a 2013 Kia Optima, and agreed to purchase it by trading in… Read More
In Gonzales v. CarMax Auto Superstores, LLC (9th Cir. Oct. 20, 2016) __ F.3d __, 2016 WL 6122776, the Court of Appeals for the 9th Circuit held to meet that statutory requirement, an “inspection report” must conform to commonly understood meaning of that term in the automobile industry; namely, “a report that lists the components inspected, with a space corresponding to… Read More
In Spencer Ung v. Universal Acceptance Corporation, 2016 WL 4132244, at *2–3 (D.Minn., 2016), Judge Kyle rejected a Spokeo challenge to a TCPA claim. Although Spokeo did not determine whether the plaintiff had suffered an injury sufficient to confer standing to sue, Universal nevertheless cites it to argue Ung has not suffered a sufficient concrete injury here. Cases, however, have… Read More
In Harold v. TMC Enterprises, LLC, 2016 WL 6069023 (W.D. Va. 2016), Judge Moon held that a car buyer adequately pleaded a TILA violation due to an inflated purchase price of the vehicle where the buyer also alleged that the finance price of a vehicle is higher than its cash price. Plaintiff asserts that Defendants violated the TILA by failing… Read More
In Espejo v. Santander Consumer USA, Inc., 2016 WL 6037625, at *12 (N.D.Ill. 2016), Judge Kocoras found that an automobile finance company's calls to a TCPA class action plaintiff through its Aspect dialer used an ATDS under the TCPA. Santander's alternative ground for summary judgment asserts, not the consent of the called parties, but the equipment it used to call them. Santander… Read More
In Watts v. Diversified Adjustment Service, Inc., 2016 WL 6025496, at *1–2 (N.D.Cal., 2016), Judge Freeman granted a Motion to Dismiss, but granted leave to amend. Claim 1 is asserted under the FCRA, which is titled “Responsibilities of furnishers of information to consumer reporting agencies.” 15 U.S.C. § 1681s-2(b). The FCRA provides a private right of action under § 1681s-2(b) against… Read More
Despite the Court of Appeal's surprise in having to deal with this "obscure little backwater area of the law" -- to quote the Court -- , practitioners know that the fact pattern of which the defendants were convicted is not that unusual. In People v. Ali Maadarani, 2016 WL 5940319, at *13 (Cal.App. 3 Dist., 2016), the Court of Appeal found that… Read More
The Conference on Consumer Finance Law just published two articles on the FDCPA by Severson & Werson. Hyman & Kenney, Judicial Isolation of the Third Circuit’s “Glassine Window” FDCPA Decision in Douglass v. Convergent Outsourcing, 69 Conf. Cons. Fin. L. Q. 142 (Fall 2016): here Hyman & Kenney, The Effect of the FDCPA’s Class-Action Penalty Cap on Class Certification, 69… Read More
A copy of the long-awaited PHH decision is here. Read More
In Ewing v. SQM US, Inc., 2016 WL 5846494, at *2–3 (S.D.Cal., 2016), Judge Bencivengo dismissed a TCPA claim because the alleged harm -- a charge for the call - would have been incurred whether the call was properly placed (manually) or improperly placed (autodialed). Accordingly, it did not confer "concrete injury" sufficient to confer Article III standing. The only allegation in… Read More
In Bates v. American Credit Acceptance, LLC, 2016 WL 5477429, at *3 (E.D.Mich., 2016), Judge Tarnow exercised supplemental jurisdiction over a collection cross-complaint filed in response to a TCPA claim. The Court finds that Plaintiffs' claims and Defendant's counterclaim are sufficiently part of the same case or controversy to warrant the exercise of supplemental jurisdiction. The claims at issue clearly… Read More
In Pozo v. Stellar Recovery Collection Agency, Inc., here, Judge Porcelli granted summary judgment to a debt collector under the TCPA who argued that no ATDS was used. Furthermore, dialing systems which require agents to use an electronic “point and click” function to initiate calls are not autodialers because human intervention is required to initiate the calls. See Jenkins v.… Read More
