Consumer Finance

In Olson v. La Jolla Neurological Assocs., No. D079265, 2022 Cal. App. LEXIS 973, at *16-20 (Ct. App. Nov. 23, 2022), the Court of Appeal held that a medical service provider, with no affiliation to its third party billing service, was not subject to the Rosenthal Act. Thus, the legal question before us is whether a medical service provider that… Read More

In BPP v. CaremarkPCS Health, L.L.C., No. 21-3791, 2022 U.S. App. LEXIS 31586 (8th Cir. Nov. 16, 2022), the Court of Appeals clarified the rules for “unsolicited advertisements” under the TCPA fax rules. We disagree with BPP's proposed interpretation of unsolicited advertisement. HN3 The TCPA does not ban all faxes that contain information about commercial goods or services, as BPP… Read More

In Risher v. Adecco Inc., No. 19-cv-05602-RS, 2022 U.S. Dist. LEXIS 209676 (N.D. Cal. Nov. 18, 2022), Judge Seaborg dismissed an evolving theory that text messages can be a pre-recorded voice under the TCPA. In the absence of express consent, section 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA, and its implementing regulations at 47 CFR § 64.1200(a)(2), prohibit non-emergency calls… Read More

In Yahoo Inc. v. Nat'l Union Fire Ins. Co., No. S253593, 2022 Cal. LEXIS 6887, at *2-3 (Nov. 17, 2022), the California Supreme Court, on certification of the issue from the Court of Appeals for the 9th Circuit, found that TCPA claims were covered under Yahoo!'s manuscript CGL policies. The Court summarized: Privacy injuries that involve the right of seclusion… Read More

The FTC has announced additional time for financial institutions to comply with new Safeguards Rule changes.  In response to personnel shortages and supply chain issues, the new deadline is June 9, 2023: What provisions are included in the six-month extension?  Consult the Federal Register Notice for details, but the extension applies to provisions in the revised Rule that require covered companies to:… Read More

In Borden v. Efinancial, Ltd. Liab. Co., No. 21-35746, 2022 U.S. App. LEXIS 31613, at *3-4 (9th Cir. Nov. 16, 2022), the Court of Appeals for the 9th Circuit found that to be an ATDS, the system must randomly or sequentially generate telephone numbers, not other sorts of numbers. So a system that selects telephone from a previously entered list… Read More

In Jeffrey Chong v. Bank of Am., N.A., No. 22-00151 JMS-KJM, 2022 U.S. Dist. LEXIS 203101, at *2-5 (D. Haw. Nov. 8, 2022), Judge Seabright found no waiver of arbitration of an FCRA case under the SCOTUS' decision in Morgan. In the Ninth Circuit (until recently), "[a] party seeking to prove waiver of a right to arbitration must demonstrate: (1)… Read More

In Beard v. John Wester Chevrolet, LLC, No. 5:21-CV-173-D, 2022 U.S. Dist. LEXIS 204379, at *7-9 (E.D.N.C. Nov. 9, 2022), Judge Dever found that ringless voicemail technology is a 'call' under the TCPA. Although only a few courts have addressed whether a ringless voicemail is a call under the TCPA, every court that has addressed this question has held that… Read More

In Hylton v. Titlemax of Va., Inc., No. 4:21-cv-163, 2022 U.S. Dist. LEXIS 202470, at *8 (S.D. Ga. Nov. 7, 2022), Judge Baker denied a TCPA defendant's summary judgment in a re-assigned number case. Titlemax argues that summary judgment is warranted because Jennings consented to Titlemax calling the 7270 Number concerning his account. (Doc. 65-1, pp. 7-9.) This argument fails.… Read More

In Scarbo v. Wisdom Fin., No. 22-1398, 2022 U.S. App. LEXIS 31020, at *9 (3d Cir. Nov. 9, 2022), the Court of Appeals for the 3rd Circuit held that a furnisher conducted a reasonable investigation as a matter of law. We conclude that the District Court properly granted summary judgment in favor of LVNV and Great Lakes on Scarbo's claims… Read More

In Church v. Collection Bureau of the Hudson Valley, Inc., Civil Action No. 20-3172 (SDW)(LDW), 2022 U.S. Dist. LEXIS 201523, at *9 (D.N.J. Nov. 4, 2022), Judge Wigenton allowed an FDPCA class representative to limit the class to a single zip code. In this case, Plaintiffs seek to certify the following classes: (1) all New Jersey residents who received a… Read More

In Concha v. Debt Recovery Res., No. CV 22-2842 PA (MARx), 2022 U.S. Dist. LEXIS 201558, at *6-8 (C.D. Cal. Nov. 2, 2022), Judge Anderson exercised jurisdiction over a counter-claim on the debt against an FDCPA Plaintiff because the FDCPA claim was related to the debt itself. A number of district courts in the Ninth Circuit have found that actions… Read More

In Miller v. Westlake Servs. LLC, No. 8:21-cv-00692-JLS-KES, 2022 U.S. Dist. LEXIS 197076, at *21-30 (C.D. Cal. Oct. 28, 2022), Judge Staton granted partial summary judgment to an FCRA Plaintiff who claimed that she was a victim of identity theft. First, the Court declines Plaintiff's invitation to rule that "solely engaging in data conformity" renders a furnisher's investigation per se… Read More

In Fitzpatrick v. Capital One Bank United States N.A., No. 2:22-cv-00312-MCE-DB, 2022 U.S. Dist. LEXIS 196670, at *7-9 (E.D. Cal. Oct. 28, 2022), Judge England dismissed a class action premised on the alleged unlawful charging of late fees during the pandemic. The Agreement explicitly permits Defendant to charge the fees challenged in this case. Accordingly, Plaintiff contends instead that: (1)… Read More

In Dhital v. Nissan N. Am., Inc., No. A162817, 2022 Cal. App. LEXIS 887, at *11-22 (Ct. App. Oct. 26, 2022), the California Court of Appeal found that the economic loss rule did not bar a fraudulent inducement claim so long as the claim was completely separate and apart from the Song-Beverly warranty claim. As noted, the trial court sustained… Read More

In Figueroa v. Us, No. B306275, 2022 Cal. App. LEXIS 883, at *4-9 (Ct. App. Oct. 25, 2022), the Court of Appeal held that a lemon law plaintiff who sold his lemon vehicle for a $3,000 profit got to keep the money. Subparagraph (B) establishes the amount of restitution FCA must pay. (§ 1793.2, subd. (d)(2)(B).) "[T]he manufacturer shall make… Read More

In Angulo v. Truist Bank, No. 22 C 923, 2022 U.S. Dist. LEXIS 193573, at *8 (N.D. Ill. Oct. 25, 2022), Judge Kendall granted a motion for judgment on the pleadings against an FCRA Plaintiff. The intangible humiliation and embarrassment of credit denial may also be considered a concrete injury in the FCRA context. In passing the FCRA, Congress found,… Read More

That California legislature last year passed last year SB 531, which became effective July 1, 2022, imposing additional validation requirements on certain debt collectors under the Rosenthal Act.  The bill was designed to do as follows: This bill would require a debt collector to which delinquent debt, as defined and specified, has been assigned to provide to the debtor, upon… Read More

On October 20, the FTC announced an NPR with respect to “junk fees”, noting The FTC is concerned that junk fees are common in many sectors of the U.S. economy. The advance notice of proposed rulemaking announced today seeks public comment on the harms stemming from junk fees and associated junk fee practices and on whether a new rule would… Read More

In Valerio's Auto Sales v. Flowers, No. 1210295, 2022 Ala. LEXIS 102 (Oct. 21, 2022), the Alabama Supreme Court reversed the trial court’s denial of a car dealer’s petition to compel arbitration. In support of its motion to compel arbitration, Valerio's submitted to the trial court a copy of the contract Flowers signed when she purchased her vehicle; that contract… Read More