Consumer Finance

In Baisden v. Credit Adjustments, Inc., 2016 WL 561735, at *5-7 (C.A.6 (Ohio),2016), the Court of Appeals for the Sixth Circuit applied the doctrine of intermediary consent to find that a hospitals debt collectors had authority to call the hospital's debtors on their cell phones when the written consent was broad enough to include disclosure of such phone numbers "to others".… Read More

In Yount v. Midland Funding, LLC, 2016 WL 554851, at *7-8 (E.D.Tenn., 2016), Judge Greer granted summary judgment to a TCPA plaintiff who received calls to her cellular telephone by use of an ATDS, even though she was not charged for the calls. There is no dispute of fact that FKSC made the six telephone calls to plaintiff's cellular telephone… Read More

In In re Collecto, Inc., 2016 WL 552459, at *2-4 (D.Mass., 2016), Judge Stearns summarily rejected a challenge to the FCC's authority to define an ATDS. Collecto's summary judgment argument begins with the contention that the court should give no weight whatsoever to the FCC's determination that a predictive dialer is an ATDS for TCPA purposes. According to Collecto, the… Read More

In Scarola Malone & Zubatov LLP v. McCarthy, Burgess & Wolff, 2016 WL 536864, at *1-2 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit affirmed dismissal of a law firm's FDCPA complaint because the debt was commercial in nature. The FDCPA does not cover “actions arising out of commercial debts.” Goldman v. Cohen, 445 F.3d 152, 154 n.… Read More

In Brady v. Basic Research, L.L.C., 2016 WL 462916, at *2 (E.D.N.Y., 2016), Judge Feuerstein denied a TCPA Defendant's efforts to tender around Campbell-Ewald.   As Defendants' seek Rule 67(a) permission to deposit funds into court to moot this case arid not to relieve themselves of the burden of administering an asset, and given the Supreme Court's directive that “a would-be… Read More

In Baird v. Sabre, Inc., 2016 WL 424778, at *1 (C.A.9 (Cal.),2016), the Court of Appeals for the Ninth Circuit confirmed that giving your cell number without contrary instructions constitutes consent to be called on it. The TCPA restricts certain calls1 using an automatic dialing system2 or an artificial or prerecorded voice absent “prior express consent.” 47 U.S.C. § 227(b)(1)(A). The… Read More

In Schlotfeldt v. Wells Fargo Home Mortgage, Inc., 2016 WL 406341, at *5 (N.D.Ill., 2016), Judge Gettlemen dismissed a TCPA case because Plaintiff did not plead adequate "use" of an ATDS. As evidenced from the cases cited by each party, courts in this district are split concerning what is required to state a claim under the TCPA. See Martin v. Direct… Read More

In Rivera v. Exeter Finance Corp., 2016 WL 374523, at *3 (D.Colo., 2016), Judge Hegarty declined to stay a TCPA class action pending the outcome of the ACA proceedings in the DC Circuit. Finally, the parties note that other courts have addressed this precise issue with regard to the appeal of the latest FCC Ruling. The cases have gone both directions.… Read More

In Rodriguez v. DFS Services, LLC, 2016 WL 369052, at *2-3 (M.D.Fla., 2016), Judge Moody issued a short stay based on the SCOTUS deciding Spokeo, but said that he would not await the outcome of the TCPA proceedings in D.C. Here, the allegations of injury are likewise sparse, if present at all, even though Rodriguez's complaint does seek actual damages. Compare… Read More

In Fosnight v. Convergent Outsourcing, Inc., 2016 WL 317678, at *2-3 (S.D.Ind., 2016), Judge McKinney certified an FDCPA class action grounded on a purportedly defective debt validation letter.  The Court rejected the argument that individual issues predominated because questions might arise whether the debt validation letter was the initial communication. Defendants primarily argue that individual issues of fact preclude a… Read More

In Dykes v. Portfolio Recovery Associates, LLC., 2016 WL 346959, at *3-4 (E.D.Va., 2016), Judge Cacheris denied class certification in an FDCPA class action due to lack of ascertain ability. The class proposed in Plaintiff's Memorandum in Support of her Motion for Class Certification includes recipients of PRA's Spanish-language dunning letters who actually speak Spanish and indicated to PRA that… Read More

In Gregory v. Metro Auto Sales, Inc., 2016 WL 336861, at *2-3 (E.D.Pa., 2016), Judge McHugh found that a car dealer who allegedly inflated the purchase price of automobiles to offset inflated trade-in credits the dealer gave to the purchasers did not violate TILA. Count I of Plaintiff's Complaint alleges Defendant violated the Truth in Lending Act (“TILA”). Congress adopted… Read More

In Abeyta v. Bank of America, N.A., 2016 WL 304308, at *2 (D.Nev., 2016), Judge Jones found that a bank's reporting, post-discharge, of a consumer's pre-petition debt as being in default, did not violate the FCRA because the report was not inaccurate.  The facts were as follows. Plaintiff Ginney Abeyta filed for bankruptcy in this District in June 2010. (Compl.… Read More

In Jamison v. Esurance Services, Inc., 2016 WL 320646, at *3 (N.D.Tex., 2016), Judge Boyle denied a TCPA Defendant's motion to dismiss. The Report does not specifically list injuries that result from telephone advertising. But parallels to the facsimile advertising injuries can be inferred. For example, cellular telephone users generally incur charges or reduction in usable minutes when they receive… Read More

In Cox v. Sherman Capital LLC, 2016 WL 274877, at *4-6 (S.D.Ind., 2016), Judge Pratt properly found that a proposed class action was an impermissible fail-safe class.  The allegations were as follows: As a result of securitization, the Plaintiffs contend that LVNV did not own their debts based on three different, but related, arguments. First, as explained above, Plaintiffs argue… Read More

In remunerating borrowers, the Bureau thus faced a dilemma. Political exigency required the Bureau to design a process that would ensure that a sufficient number of alleged victims would be identified as eligible claimants; after all, if fewer claimants received checks than Director Cordray initially announced, the validity of the Bureau’s disparate impact methodology would be called into question. But,… Read More

In Campbell-Ewald Co. v. Gomez, 2016 WL 228345, at *1 (U.S.,2016), the SCOTUS held that: An unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the District Court retained jurisdiction to adjudicate Gomez's complaint.Article III's “cases” and “controversies” limitation requires that “an actual controversy ... be extant at all stages of review, not merely at the… Read More

In Cartrette v. Time Warner Cable, Inc.,  2016 WL 183483, at *4-6 (E.D.N.C., 2016), Judge Flanagan denied a TCPA defendant's summary judgment motion, holding that its subscriber agreement could not prohibit revocation of consent. However, such a contract does not prevent a consumer from revoking her prior express consent pursuant to the TCPA. See Gager, 727 F.3d at 273–74 (“The… Read More

The FCC's response is here: FCC Respondents Brief. Read More

In Stevens-Bratton v. TruGreen, Inc., 2016 WL 155087, at *2 (W.D.Tenn., 2016), Judge Anderson denied a class certification motion on the basis that the Defendant responded to it with a Petition to Compel Arbitration, finding that the Arbitration Clause was not unconscionable.  The unconscionability analysis is not unusual, so much as the procedural posture. TruGreen is a national lawn care… Read More