Consumer Finance

In Duchene v. OnStar, LLC, 2016 WL 3997031, at *2–7 (E.D.Mich., 2016), Judge Hood found that a TCPA plaintiff pleaded enough to plead use of an ATDS, but not enough to plead willfulness. Defendant contends that Plaintiff's sole allegation regarding Defendant's use of an ATDS is: “Upon information and belief, the dialing system used to call the [p]laintiff had the… Read More

In Weisberg v. Stripe, Inc., 2016 WL 3971296, at *4–5 (N.D.Cal., 2016), Judge Tigar dismissed a TCPA case at the pleadings stage for wont of pleading an ATDS. Plaintiff further relies on the case of Harnish v. Frankly Co., in which the court held that allegations claiming that text messages were sent “en masse,” had “generic” and “impersonal” content, and… Read More

In Scribner v. Works & Lentz, Inc., 2016 WL 3981435, at *1 (C.A.10 (Okla.), 2016), the Court of Appeals for the 10th Circuit resolved the FDCPA's statutory conflict prohibiting communications which directly or indirectly disclose the debt (15 USC 1692c(b) and permissible communications to obtain location information (15 USC 1692b) In Marx v. General Revenue Corp., 668 F.3d 1174, 1177-78… Read More

In Hernandez v. Williams, Zinman & Parham PC, No. 14-15672 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit held that the FDCPA unambiguously requires any debt collector - first or subsequent - to send a section 1692g(a) validation notice within five days of its first communication with a consumer in connection with the collection of any debt.   A… Read More

In Sliwa v. Bright House Networks, LLC, 2016 WL 3901378, at *3-5 (M.D.Fla., 2016), Judge Steele refused to stay a TCPA case pending the outcome of the proceedings in the DC Circuit. Bright House's argument that a stay is warranted in light of the appeal pending in the D.C. Circuit assumes two things: first, that the Circuit Court's ruling is… Read More

In Santander Bank, N.A. v. Moody Leasing, 2016 WL 3906808, at *1-2 (W.D.Mo., 2016), Judge Kays entered judgment for an automobile finance company on tow-truck leases, despite the fact that the collateral had not yet been liquidated.  The facts were as follows: On February 14, 2011, Santander,1 a Delaware-based bank, entered into a loan agreement with Moody Leasing. The agreement… Read More

In Tourgeman v. Collins Financial Services, Inc., 2016 WL 3854540, at *2-4 (S.D.Cal. 2016), Judge Bencivengo dismissed FDCPA class allegations because the Plaintiff had no evidence of the defendant's net worth. In support of his position, Plaintiff cites to the fact that the FDCPA statutory award is a punitive in nature, i.e., the jury considers defendant's conduct and provides for… Read More

In Moses v. Experian Information Solutions, Inc., 2016 WL 3670068, at *1 (N.D.Cal., 2016), Judge Freeman allowed an FCRA bankruptcy-reporting case past the pleadings.  The Plaintiff alleged that he filed a Chapter 13 bankruptcy petition in January 2015; his Chapter 13 plan was confirmed in May 2015; credit reports obtained in July 2015 showed that AFNI was reporting a balance… Read More

In Hughes v. Experian Information Solutions, Inc., 2016 WL 3670051, at *2-3 (N.D.Cal., 2016), Judge Freeman found that a FCRA plaintiff had not adequately pleaded an "inaccuracy" to sustain an FCRA claim. IQ Data contends that the FAC does not allege facts showing a credit reporting inaccuracy. The Court agrees. Plaintiff alleges that IQ Data reported Plaintiff's account as being… Read More

In Johnson-Morris v. Santander Consumer USA, Inc., 2016 WL 3671468, at *5-6 (N.D.Ill., 2016), Judge Kocoras denied an auto finance company's motion to dismiss a Plaintiff's FDCPA class action alleging that the Company kept a portion of "convenience fees" that were paid to pay-by-phone vendor.  The Plaintiff alleged: Western Union allegedly “kept a portion of the fees paid by Plaintiff… Read More

It's sort of fact specific, but the Court of Appeals for the Seventh Circuit in Holtzman v. Turza, 2016 WL 3648390, at *1-2 (7th Cir. 2016) held that the residue of a supersedeas bond goes back to the Defendant, and Plaintiff's counsel can't base its fees on the entire amount of the fund, only that which was paid out. Attorney Gregory… Read More

In Hinkle v. Midland Credit Management, Inc., 2016 WL 3672112, at *4-8 (C.A.11 (Ga.), 2016), the Court of Appeals for the 11th Circuit reversed summary judgment for a debt buyer on the plaintiff's reinvestigation under FCRA, finding that more investigation was required than checking the dispute against its electronic records. When the CRAs informed Midland that Hinkle disputed the GE/Meijer… Read More

In Reddin v. Rash Curtis & Associates, 2016 WL 3743148, at *2-3 (E.D.Cal. 2016), the Court held that the FDCPA only protects third parties where the statute refers to something other than "consumers". Subsection 1692c(a)(1) generally prohibits a debt collector from communicating with a “consumer in connection with the collection of any debt...at any unusual time or place or a… Read More

In Nelson v. Midland Credit Management, Inc., 2016 WL 3672073, at *2 (8th Cir. 2016), the Court of Appeals for the Eight Circuit disagreed with the 11th Circuit's Crawford decision on the actionability under the FDCPA of filing time-barred proofs of claim. Nelson urges this court to follow the Eleventh Circuit and extend to bankruptcy claims the rule against actual… Read More

In Maiteki v. Marten Transport Ltd., 2016 WL 3747396, at *1 (10th Cir.  2016), the Court of Appeals for the 10th Circuit affirmed judgment in favor of a furnisher against a FCRA plaintiff's claim that the furnisher inadequately re-investigated a credit dispute.  The facts did not necessarily arise out of a consumer transaction.   Marten is a transportation company that employed… Read More

The OCC Semi-Annual Report for 2016 stated: Auto lending risk is increasing because of notable and unprecedented growth across all types of lenders.  Recently, delinquencies on auto loans have begun to increase and used car values have started to decline. As banks have competed for market share, some banks have responded with less stringent underwriting standards, or both, for direct… Read More

In Adamo v. Synchrony Bank, 2016 WL 3621129, at *1 (M.D.Fla., 2016), Judge Dalton refused to stay a TCPA case based on the ACA proceedings pending before the DC Circuit because the 11th Circuit will not be bound by it. Defendant seeks a stay of this action pending resolution of appeals that were pending before the U.S. Supreme Court and… Read More

In Lathrop v. Uber Technologies, Inc., 2016 WL 3648596, at *2-3 (N.D.Cal., 2016), Judge Tygar deferred ruling on Uber's summary judgment motion until Plaintiff had an opportunity to do a bunch of discovery. Plaintiffs have satisfied the criteria for granting a Rule 56(d) motion. First, Plaintiffs have timely submitted, with their Rule 56(d) motion, a supporting declaration specifying the reasons… Read More

In Rodriquez v. Law Office of Robert King, --- F.Supp.3d ----, 2016 WL 3638119 (C.D. Cal. 2016), Judge Otero found that collections communications made in the course of a state law UD action were not protected by the litigation privilege. As a threshold matter, Defendants argue that, if the FDCPA or Rosenthal Act applied, the eviction notice would be subject to… Read More

In Bob Smith Automotive Group, Inc. v. Ally Financial, Inc.  2016 WL 3613402 (Md. 2016), the Maryland Court of Appeals was asked to decide a rather unremarkable legal question of whether certain documents were part of a contract.  But, in doing so, the Court of Appeals gave a succinct explanation of what Floorpan Lending: The Automotive Sales Industry 101.  4.... [I]t… Read More