Consumer Finance

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

In Vazquez v. Triad Media Solutions, Inc., 2016 WL 155044, at *4-5 (D.N.J., 2016), Judge Walls struck an affirmative defense in a TCPA text message case asserting EBR, strikes a ruinous penalty affirmative defense, but allows a First Amendment challenge to proceed.  Judge Walls  found EBR not properly asserted in a text message case because "The Third Circuit has held that the… Read More

In Powers v. Selcon Community Credit Union, et. al., 2016 WL 126739, at *4-5 (D.Or. 2016), Judge McShane denied summary judgment to a FCRA furnisher defendant on the reasonableness of its re-investigation.  The takeaways from the decision are four, from someone who has handled a number of such cases.  First, the decision demonstrates how granular these cases can get in terms of… Read More

We previously reported on the Gannon v. Metwork Telephone Services, Inc., decision where the District Court denied class cert in a TCPA class action.  (http://www.calautofinance.com/?p=4181).  In Gannon v. Network Telephone Services, Inc., 2016 WL 145811, at *1 (9th Cir. 2016) (unpublished), the Court of Appeals for the Ninth Circuit affirmed the District Court's denial of class certification. Paul Gannon challenges the district court's denial of… Read More

In McCormick v. Citibank, NA, 2016 WL 107911, at *5 (W.D.N.Y., 2016), Judge Curtin ordered a TCPA case to arbitration, holding that the TCPA itself did not preclude arbitration. Because plaintiff asserts a federal statutory claim, the court must consider “whether Congress evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” . .… Read More

In Lathrop v. Uber Technologies, Inc., 2016 WL 97511, at *4-5 (N.D.Cal., 2016), Judge Tygar refused to stay the TCPA litigation pending the outcome of the ACA litigation or Spokeo. The Court finds that a stay in favor of the D.C. Circuit's decision in ACA International is not appropriate. . . Moreover, as counsel for Uber acknowledged at the hearing on this motion,… Read More

In Abplanalp v. United Collection Bureau, Inc., 2016 WL 81498, at *3 (W.D.N.C., 2016), Magistrate Judge Keesler stayed a TCPA case pending the outcome of the ACA litigation in the DC Circuit. Based on Defendant's arguments and citations, and the lack of any rebuttal from Plaintiff, the undersigned finds good cause to recommend that this matter be stayed until the related… Read More

In Rose v. Friendly Finance Corp., 2016 WL 98597, at *1 (S.D.Ohio, 2016), Magistrate Judge Kemp alleged a consumer's claim to proceed against an automobile finance company for its practice of force placing insurance. Ms. Rose alleges that Friendly Finance improperly added the cost of automobile insurance, procured through American Modern, to her loan balance and the loan balances of the… Read More

In J & D Towing, LLC v. American Alternative Insurance Corporation, 2016 WL 91201, at *1-2 (Tex., 2016), the Texas Supreme Court held that a party can recover loss of use in both partial and total loss situations.    Enjoy.   Nearly a century ago, a Texas attorney argued that the rule at issue in this case made it “cheaper to… Read More

In Buckley v. AFNI, Inc., 2016 WL 70847, at *2-3 (S.D.Ind., 2016), Judge Baker found that a debt collector violated the FCRA and the FDCPA when it initiated collection activities against a bankrupt debtor.  First, the District Court found that the debt collector's pulling of a credit report violated the FCRA because no debt existed post-bankruptcy. Both parties have moved for summary judgment… Read More

In Sandusky Wellness Center, LLC, v. ASD Specialty Healthcare, Inc., 2016 WL 75535, at *2-4 (N.D.Ohio 2016), Judge Zouhary denied class cert in a TCPA blast-fax case. Identifying fax recipients is typically accomplished by examining fax logs that confirm which faxes successfully transmitted and which failed. See e.g., Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684–85 (7th Cir. 2013)… Read More

In Kostik v. ARS National Services, Inc., 2016 WL 69904, at *2-4 (M.D.Pa. 2016), Judge Nealon declined to certify a Douglass-type FDPCA case for interlocutory review, believing that there is no substantial grounds for a difference of opinion. Defendant claims that there are substantial grounds for difference of opinion as to whether the disclosure of a barcode allegedly embedded with plaintiff's… Read More

In Lennartson v. Papa Murphy's Holdings, Inc., 2016 WL 51747, at *1-2 (W.D.Wash., 2016), Judge Leighton stayed a TCPA class action pending Spokeo even though the Court recognized that the Plaintiff suffered actual damages and thus had Article III standing. In 2011, Papa Murphy's started texting those who had signed-up on its website to receive promotional messages and those who had texted… Read More

In Ott v. Mortgage Investors Corporation of Ohio, Inc., 2016 WL 54678, at *1 (D.Or., 2016), Magistrate Judge Stewart approved a class action settlement on largely the following terms: Plaintiffs filed this class action on April 18, 2014, alleging violations by defendants of the Telephone Consumer Protection Act, 47 USC § 227 et seq (“TCPA”), by means of a nationwide telemarketing scheme… Read More

In Telephone Science Corporation v. Asset Recovery Solutions, LLC, 2016 WL 47916, at *4 (N.D.Ill., 2016), Judge St. Eve stayed a TCPA case pending the outcome of Spokeo.  Telephone Science operates a service called “Nomorobo”, designed to help consumers avoid incoming computerized telephone calls that the Federal Trade Commission refers to as “robocalls”—calls in which the caller uses a recorded or… Read More

In Youssofi v. Allied Interstate LLC, 2016 WL 29625, at *2-3 (S.D.Cal., 2016), Judge Curiel struck an FDCPA defendant's assertion of FDCPA pre-emption over the Rosenthal Act. Plaintiff argues that these affirmative defenses fail as a matter of law and cites to the holding in Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055 (9th Cir. 2011). Defendant opposes contending… Read More

In Sain v. Adams Auto Group, Inc., 2016 WL 47730, at *1 (N.C.App.,2016), the North Carolina Court of Appeal addressed an increasingly common factual situation. Plaintiffs purchased a used 2010 Honda Civic automobile (“the vehicle”) from defendant, Adams Auto Group (“Adams”) on 18 January 2013. The vehicle was previously owned by the Freemans, who are not a party to this action.… Read More

In Shamblin v. Obama for America, 2015 WL 1909765 (M.D. Fla. 2015), Judge Covington denied class certification in this TCPA litigation.  First, Judge Covington found no commonality amongst the putative classmembers. Based on the current record, the Court determines that there can never be common answers to the questions of whether (1) the telephone number dialed was assigned to a… Read More

In Consumer Financial Protection Bureau v. CashCall, Inc., 2015 WL 9591569, at *1-2 (C.D.Cal., 2015), Judge Walter said that the CFPB was not alleging an ipso facto rule, namely that a state court violation automatically constitutes a UDAAP violation.  Accordingly, Judge Walter allowed the Complaint to survive a pleadings challenge. Defendants' primary argument for dismissal is based on a mischaracterization of the… Read More

The FTC announced that it is seeking comment on the FTC Holder Rule, which preserves against the Holder all claims and defenses that a consumer can assert against the seller.  The FTC identified the following specific areas for comment: The Commission solicits comment on the following specific questions related to the Holder Rule: (1) Is there a continuing need for… Read More