Consumer Finance

In Brooks v. Carmax Auto Superstores California, LLC, 2016 WL 1293757, at *4-5 (Cal.App. 4 Dist., 2016) (unpublished), the Court of Appeal affirmed the trial court's judgment against a consumer on the basis that the consumer lacked standing to sue under the CLRA or UCL for mere technical violations of the used vehicle statute.  The facts were as follows: CarMax… Read More

In Hall v. Phenix Investigations, Inc., 2016 WL 1238602, at *2-3 (5th Cir. 2016), a Law Firm hired private eyes to obtain information on a litigant in a commercial lease dispute, which the Law Firm used against the litigant in the litigation.  The litigant sued, alleging that the information obtained by the private eye was a "consumer report" under FCRA, and litigation… Read More

In Silver v. Pennsylvania Higher Education Assistance Agency, 2016 WL 1258629, at *2-4 (N.D.Cal., 2016), Judge Hamilton granted summary judgment to the PHEAA in a TCPA claim on the grounds that the the amendments to the TCPA exempting them apply retroactively. Defendant argues that there is no dispute that the loans at issue in this case were federally funded student loans, and… Read More

In Strauss v. CBE Group, (Case No. 15-62026), here, Judge Cohn granted summary judgment to a debt collector on the basis that it's point-and-click telephony software and hardware system did not constitute an ATDS under the TCPA. Plaintiff has failed to create a material dispute regarding CBE’s use of an ATDS after April 15, 2014. The evidence clearly establishes that CBE made… Read More

In Duguid v. Facebook, Inc., 2016 WL 1169365, at *5-6 (N.D.Cal., 2016), Judge Tygar dismissed a TCPA case against Facebook because the Plaintiff could not plead that the texts were randomly generated. Here, as in Flores, Plaintiff's allegations do not support the inference that the text messages he received were sent using an ATDS. Plaintiff alleges that the login notifications… Read More

In Bishop v. Ross Earle & Bonan, P.A., 2016 WL 1169064, at *3 (11th Cir. 2016), the Court of Appeals for the 11th Circuit held that communications between a debt collector and debtor's counsel counsel are subject to the FDCPA, but still are subject to the least sophisticated consumer standard. We join the Third, Fourth, and Seventh Circuits in holding that… Read More

In Mey v. Got Warranty, Inc., 2016 WL 1122092, at *3 (N.D.W.Va., 2016), Judge Bailey stayed a TCPA case pending the outcome of Spokeo. As noted by the defendants, many district courts throughout the country have granted stay pending the Supreme Court's Spokeo decision, including many cases involving the TCPA. Although there are also several district courts that have denied similar stays, an analysis… Read More

In Henson v. Santander Consumer USA, Inc., 2016 WL 1128419, at *1 (4th Cir. 2016), the Court of Appeals for the 4th Circuit affirmed dismissal of an FDCPA case against Santander Consumer USA, who had purchased CitiFinancial's defaulted post-repossession debt as part of a bundle of receivables. When arguing from the definition of creditor, they overlook the fact that the exclusion… Read More

In Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D.Ohio, 2016), Judge Nugent held that a TCPA Plaintiff must plead some threshold facts to demonstrate that an ATDS was used. Review of TCPA cases confirms that district courts are split as to the sufficiency of a plaintiff's pleadings on the ATDS issue. See Aikens, supra; Padilla v.… Read More

In Herrera v. AllianceOne Receivable Management, Inc., 2016 WL 1077110, at *1 (S.D.Cal., 2016), Chief Judge Moskowitz held that the TCPA does not apply to debt collection calls placed by an autodialer for debt collection purposes when the call does not include a pre-recorded message.  The facts were as follows: The allegations in Plaintiffs' FAC, filed on June 23, 2015,… Read More

In Asufrin v. Roundpoint Mortgage Servicing Corporation, 2016 WL 1056669, at *1 (N.D.Ill., 2016), Judge Aspen allowed a bankruptcy FCRA claim to proceed past the pleadings stage.  In Asufrin, the Plaintiff alleged that RoundPoint mismanaged the credit reporting of her mortgage loan after she obtained a bankruptcy discharge.  Despite Plaintiff's order of discharge, her Experian credit report revealed that RoundPoint was reporting the… Read More

In Saragusa v. Countrywide, 2016 WL 1059004, at *4 (E.D.La., 2016), Judge Vance found that a TCPA plaintiff had pleaded no facts suggesting that the calls were not manually dialed. The TCPA defines the “automatic telephone dialing system” as equipment capable of “stor[ing] or produc[ing] telephone numbers to be called, using a random or sequential number generator [and] dial[ing] such… Read More

In Datta v. Asset Recovery Solutions, LLC, 2016 WL 1070666, at *7-10 (N.D.Cal., 2016), Judge Koh rejected the argument that the FDCPA's $500,000 cap prevented certification of an FDCPA/glassine window case. . . . the Court observes that, as a general matter, courts routinely certify class actions where monetary recovery would be small. . . . Second, the efficacy of a single… Read More

In Bridgeview Health Care Center, Ltd. v. Clark, 2016 WL 1085233, at *2-3 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit affirmed the District Court's rejection of agency liability under the TCPA, where the authority to the agent was limited. In determining what theory should govern Clark's liability, the trial court correctly rejected strict liability by recognizing that… Read More

In Schwartz-Earp v. Advanced Call Center Technologies, LLC, 2016 WL 899149, at *1-2 (N.D.Cal., 2016), Magistrate Judge James denied summary judgment to a debt collector under the FDCPA, but granted summary judgment against the Plaintiff on her TCPA/common law claims. The facts were as follows: On or about February 3, 2014, Plaintiff applied in-store for a JCPenney-branded credit card, issued… Read More

In Haysbert v. Navient Solutions, Inc., 2016 WL 890297, at *8-9 (C.D.Cal., 2016), Judge Gutierrez denied a TCPA Plaintiff's motion for summary judgment, saying that the Plaintiff consented to receive calls to a cell number provided post-origination and during origination. Plaintiff's interpretation, moreover, would lead to the odd outcome that a defendant would be protected by a phone number voluntary… Read More

In Vernell v. Nuvell Credit Company, LLC, 2016 WL 931104, at *3-4 (M.D.Fla., 2016), the Court refused to exercise supplemental jurisdiction over an automobile finance company's counter-claim to its customer's TCPA claim. It is clear from the record that the Counterclaim—a simple breach of contract claim—does not raise a new or complex issue of state law, the federal law claim has… Read More

In Kaplinsky v. Robert Wood Johnson University Hospital, 2016 WL 885049, at *2-3 (D.N.J., 2016), Judge Thompson found that a TCPA Plaintiff need plead that he was charged for the call in order to state a claim. But as to Plaintiff's second argument, the Court finds that it is necessary to grant reconsideration on this point. Whether a plaintiff must… Read More

In Ordinario v. LVNV Funding, LLC, 2016 WL 852843, at *1-2 (S.D.Cal., 2016), Judge Burns denied summary judgment to an FDCPA plaintiff because he had failed to demonstrate that his allegedly personal debts were not commercial. The FDCPA and RFDCPA apply only to consumer debt, not business loans. See Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir.… Read More

In Vilinsky v. Phelan Hallinan & Diamond, PC, 2016 WL 805970, at *2 (C.A.3 (N.J.),2016), the Court of Appeals for the Third Circuit found that a notice of assignment sent directly to a represented debtor did not violate the FDCPA because it was not in connection with the collection of the debt. The issue in this case is whether a… Read More