In Franklin v. Parking Revenue Recovery Services, Inc., 2016 WL 4248035 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit held that a contract was formed between the City parking lot operators and parkers, resulting in a "transaction" that formed a debt under the FDCPA. Two parts of the definition need further explanation. First, although the statute does not… Read More
In Gomez v. Oxford Law, LLC, 2016 WL 4174321, at *2–3 (3rd Cir. 2016), the Court of Appeals for the Third Circuit held that a TCPA violation did not automatically constitute an FDCPA violation. Specifically, Gomez argues that Oxford Law violated this provision not by making a threat to take any action that cannot legally be taken, but rather by actually taking… Read More
In Telephone Science Corporation v. Asset Recovery Solutions, LLC, 2016 WL 4179150, at *5 (N.D.Ill., 2016), Judge St. Eve found adequate standing in a TCPA case. TSC operates a service called “Nomorobo,” designed to help consumers avoid incoming computerized telephone calls that the Federal Trade Commission (“FTC”) refers to as “robocalls”—calls made with either an automatic telephone dialing system (“ATDS”)… Read More
In Romero v. Department Stores National Bank, 2016 WL 4184099, at *5–6 (S.D.Cal., 2016), Judge Bencivengo distinguished the types of calls that may afford Spokeo standing in a TCPA case. The Court is therefore unpersuaded by the reasoning of the various other district court decisions since Spokeo that have found that the plaintiffs had suffered a concrete injury and therefore had standing… Read More
In Lyon v. Bergstrom Law, Ltd., 2016 WL 4161107, at *2–3 (E.D.Cal., 2016), Judge Drozd denied a motion to dismiss alleging FDCPA violations based on voicemail messages that did not disclose the FDCPA's mini-Miranda. Section 1692e(11) includes a non-exclusive list of conduct that constitutes a false or misleading representations. Section 1692e(11) provides the following conduct is a violation of the… Read More
In Davis v. Hollins Law, 2016 WL 4174747, at *4–5 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit held that a debt collector's identification of itself in a voicemail message complied with the FDCPA because a least sophisticated debtor would have known who the call was from in light of prior settlement discussions between the debtor and… Read More
In Yancy v. America's Preowned Selection, LLC, 2016 WL 4150927, at *2 (8th Cir. 2016), the Court of Appeals for the Eighth Circuit reversed a district court's summary judgment in favor of a car dealer because the Plaintiff had created a factual question regarding whether the dealer violated TILA's presentation requirement. Appellants argue that the district court erred by interpreting their 15 U.S.C.… Read More
In Owen v. LNV Funding, LLC, 2016 WL 4207965, at *3 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit found nothing inherently deceptive about filing stale proofs of claims in bankruptcy court. Thus, the Bankruptcy Code contemplates that creditors will file proofs of claim for unenforceable debts—including stale debts—and that the bankruptcy court will disallow those claims upon the… Read More
Data breaches are on the rise. Hackers are constantly probing the networks of financial institutions, retailers and other companies seeking any data that may be of value. Financial institutions are a major target. Not surprisingly, with the rise in the number of data breaches has come an increase in the number of lawsuits filed against companies relating to these breaches.… Read More
The United States Supreme Court’s decision in AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), marked a turning point in California’s traditional hostility to arbitration of consumer disputes, especially as an alternative to class actions. The high court ruled that for consumer transactions involving interstate commerce, the Federal Arbitration Act (“FAA”) favored traditional one-on-one arbitration and trumped California’s policy against… Read More
Here are some of the new employment laws that went into effect in California on January 1, 2016. It is probably no surprise that most of the laws continue to favor employees: Minimum Wage Increase. As of January 1, 2016, the California state minimum wage increased from $9 to $10. This accordingly increased the minimum salary for many exempt classifications… Read More
For nearly three decades, the Federal Trade Commission (“FTC”) has made hundreds of its Staff Opinion Letters, Commentary, and Annual Reports available to the public through its website. That transparency was a valuable resource for attorneys practicing in the Fair Debt Collection Practices Act (“FDCPA”) and Fair Credit Reporting Act (“FCRA”) arena. Although the FTC’s opinion letters and commentary did… Read More
The right to adjudication before an Article III court is personal and waivable according to a divided United States Supreme Court. Wellness Int’l Network, Ltd. v. Sharif, ___ U.S. ___, 135 S. Ct. 1932 (2015). The Court further held that consent to a bankruptcy court’s jurisdiction may be implied as well as express, apparently eroding some of the strictures of… Read More
In an effort to ease overburdened courts and with an eye toward streamlining the initial phase of civil litigation, the California Legislature has enacted amendments to the rules in the California Civil Procedure Code relating to demurrers (California’s version of the motion to dismiss). These new rules require parties to, among other things, meet and confer in advance of the… Read More
In Baker v. American Financial Services, Inc., 2016 WL 4030964, at *3 (W.D.Ky., 2016), Judge Stivers allowed an FCRA claim to proceed where the debtor claimed that the reporting of a debt was inaccurate because a 1099-C Form filed by the auto finance lender stated that the debt had been discharged by agreement of the parties. The parties urge the… Read More
In Godinez v. Law Offices of Clark Garen, 2016 WL 4059718, at *1 (C.D.Cal., 2016), Judge Carney dismissed a state law debt collection counter claim filed in response to an FDCPA action because the debt collection claim was permissive, not compulsory. Godinez claims that Defendants violated the FDCPA and the RFDCPA by engaging in unlawful debt collection practices, and Best… Read More
In Cour v. Life360, Inc., 2016 WL 4039279, at *4 (N.D.Cal., 2016), Judge Henderson dismissed a TCPA claim arising from a group-texting app. First, Judge Henderson found that the claim survived a Spokeo challenge. Here, however, Cour has not simply alleged a procedural violation; instead, he relies on an allegation that he was harmed because Life360 invaded his privacy. FAC ¶ 53.… Read More
In Parham v. Seattle Service Bureau, Inc., 2016 WL 4039665, at *3 (11th Cir. 2016), the Court of Appeals found debt collection in connection with insurance subrogation claims was exempt from the FDCPA. Our decision in Hawthorne squarely controls the outcome in this case. Like Andrew Parham's sister, the plaintiff in Hawthorne was involved in an automobile accident, allegedly resulting from the… Read More
In Carlisle v. Green Tree Servicing, LLC, 2016 WL 4011238, at *1 (N.D.Ga., 2016), Judge Thrash granted summary judgment to a TCPA creditor who manually dialed calls to the called party. The Plaintiff brings a claim under the TCPA. “The TCPA prohibits the use of an [Automatic Telephone Dialing System (“ATDS”) ] to make any call (other than a call… Read More
Director Cordray's prepared remarks are here: http://www.consumerfinance.gov/about-us/newsroom/prepared-remarks-cfpb-director-richard-cordray-field-hearing-debt-collection/ The Proposals under Consideration are here: http://files.consumerfinance.gov/f/documents/20160727_cfpb_Outline_of_proposals.pdf Read More
