In Annunziato v. Collecto, Inc., 2016 WL 5407871, at *15–16 (E.D.N.Y. 2016), Judge Spatt held that a debt collector's goodwill is included in calculating the defendant's net worth under the FDCPA's class action penalty calculus. This is contrary to the 7th Circuit's decision in Sanders v. Jackson, 209 F.3d 998, 1001 (7th Cir. 2000), which held that goodwill was not to… Read More
Severson & Werson's article entitled Recovery of Commercial Losses under the Fair Credit Reporting Act, 20 J. of Comm. & Cons. Law 2 (Fall 2016) was just published. For questions or a copy, please contact Scott Hyman at sjh@severson.com Read More
On September 16, 2016, Governor Jerry Brown signed Assembly Bill (“A.B.”) No. 1723 entitled the Identity Theft Resolution Act (the “Act”) into law. The Act amended Sections 1785.16.2 and 1788.2 of the California Civil Code related to debt collection, which will become effective on January 1, 2017. The Act is a rare display of political bipartisanship as it was passed… Read More
In Aubert v. Russell Collection Agency, Inc. 2016 WL 5430184, at *2–3 (E.D.Mich., 2016), Magistrate Judge Patti held that a furnisher's "reinvestigation" requires a different kind of investigation (i.e. less) "validation" under the FDCPA. Whether verification is a requisite function in conducting a reasonable investigation? Answering this question in the affirmative, Plaintiff cites a Senate Report, which provides: "Currently, the… Read More
In Chyba v. Bayview Loan Servicing, LLC, 2016 WL 5405557, at *3–4 (S.D.Cal., 2016), Judge Benitez held that mere ownership of an ATDS and mere allegations of "pauses" was insufficient to create a question of fact on MSJ, when Caller established that calls were manually dialed. Plaintiff submits an affidavit, a handwritten call log,2 and photographs of a cell phone… Read More
In Robinson v. TransUnion, LLC, 2016 WL 5339807, at *3–4 (N.D.Cal., 2016), Judge Davila found that a FCRA Plaintiff stated a claim for how a debt was reported as it passed through bankruptcy. Looking at the Complaint, the same allegations underlie both the FCRA claim and the CCRAA claim. Plaintiff alleges he filed for Chapter 13 bankruptcy protection on March… Read More
In Biggs v. Experian Information Solutions, Inc., 2016 WL 5235043, at *2–4 (N.D.Cal., 2016), Judge Davila dismissed a FCRA Plaintiff's claim with leave to amend. Here, Plaintiff alleges she filed for Chapter 13 bankruptcy protection on December 10, 2014, and that a plan was confirmed on March 21, 2015. Compl., Dkt. No. 1, at ¶ 5. Plaintiff then ordered a… Read More
In Eileen J. Dalton v. Santander Consumer Usa, Inc., 2016 WL 5266621, at *6 (N.M., 2016), the New Mexico Supreme Court rejected an unconscionability challenge to an arbitration clause in the standard form RISC. "The self-help and small claims carve-out provisions in the arbitration clause of the finance contracts are not substantively unconscionable. Therefore, Dalton did not satisfy her burden… Read More
In Ally Financial, Inc. v. State Treasurer, 2016 WL 5107138 (Mich.App.,2016), the Michigan Court of Appeals found that two auto finance companies could not deduct their post-repossession losses as bad debt under state tax law. The procedural history sets up the issue. Plaintiffs are financing companies that financed the purchase of motor vehicles from various retailers (dealerships) around the state.… Read More
In Lombana v. Green Tree Servicing, LLC, 2016 WL 4967641, at *2 (C.D.Cal., 2016), Judge Gandhi granted summary judgment to a Loan Servicer on the grounds that the Account was not in default at the time of acquisition. Here, Defendant contends that it does not fall within the definition of a “debt collector,” and therefore cannot be liable for any… Read More
In ARcare v. IMS Health, Inc., 2016 WL 4967810, at *3 (E.D.Ark., 2016), Judge Holmes dismissed a TCPA blast-fax case on the basis that the faxes were not "advertisements. Accepting the complaint's allegations as true and drawing all inferences in ARcare's favor, the Court concludes that the faxes in dispute are non-commercial messages that fall outside that TCPA's ban on… Read More
In McDonough v. JPMorgan Chase Bank, N.A., 2016 WL 4944099, at *2–3 (E.D.Mo., 2016), Judge Hamilton allowed, but limited, the testimony of Evan Hendricks in an FCRA case. Upon consideration of the Parties' arguments, this Court concludes that Mr. Hendricks is qualified to serve as an expert in this case. He has served as an expert witness in numerous other… Read More
In Ford Motor Credit Company v. First National Bank of Crossett, 2016 WL 4916829, at *5–8 (Ark.App., 2016), the Arkansas Court of Appeal held that a RISC assignee's security interest was superior to that of a floorplan finance company's. FNBC acknowledges that a buyer in the ordinary course of business takes free of any underlying security interest created by the seller,… Read More
In Vinny's Landscaping, Inc. v. United Auto Credit Corporation, 2016 WL 4801276, at *3 (E.D.Mich., 2016), Judge Cox allowed a TCPA-Junk Fax case past the pleading stage against an automobile finance company. The Sixth Circuit first addressed the issue of whether or not a fax constitutes an advertisement under the TCPA in 2015. See Sandusky Wellness Center, LLC v. Medco… Read More
In Ally Financial, Inc. v Trujillo, 2016 WL 4766225, at *6 (Cal.App. 6 Dist., 2016), the Court of Appeal held in an unpublished decision that class notice in an NOI class action adequately informed the class members of potential adverse tax consequences. On appeal, Trujillo and Riley contend that the class notice regarding tax consequences violates due process, and is therefore… Read More
In Konopca v. Center for Excellence in Higher Education, Inc., 2016 WL 4644461, at *2–3 (D.N.J., 2016), Judge Arpert denied a request to stay a TCPA case until the ACA proceedings had run their course. The first factor the Court considers is whether a stay would unduly prejudice the Plaintiff. Here, if a stay is granted, there is the potential… Read More
In Daugherty v. Convergent Outsourcing, Incorporated, 2016 WL 4709712 (C.A.5 (Tex.), 2016), the Court of Appeals for the Fifth Circuit allowed an FDCPA claim to proceed based on a collection letter for a time-barred debt, even where no litigation is falsely threatened. There is an apparent conflict in the circuits as to whether a collection letter offering “settlement” of a… Read More
In Aderhold v. Car2Go N.A., LLC, 2016 WL 4709873 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit held that a TCPA plaintiff consented to receive texts messages as part of the registration process for a car-sharing program. Eric Aderhold appeals the district court's dismissal of his putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.… Read More
In Marquez v. Weinstein, Pinson & Riley, P.S., 2016 WL 4651403, at *4 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit found a debt collection law firm's complaint deceptive. Paragraph 12 is misleading to the unsophisticated consumer both as to the proper timing to respond to the complaint and as to the manner of response. A plain reading… Read More
In Provo v. Rady Childrens Hospital-San Diego, 2016 WL 4625556, at *2 (S.D.Cal., 2016), Judge Miller dismissed a Rosenthal Act claim with leave to amend because the Plaintiffs had not pleaded any concrete injury under Spokeo. Here, the only harm Plaintiffs plead is in reference to phone calls made by CMRE's codefendant, Rady, which Plaintiffs allege caused “undue stress, anxiety, and frustration....”… Read More
