Consumer Finance

In Johnson v. Santander Consumer USA Inc., 2015 WL 7567483, at *2-3 (D.Ariz., 2015), Judge Rayes ordered an FDCPA case to arbitration under a standard Arizona Automobile RISC. Both the RISC and the Amendment contain arbitration provisions that clearly and unmistakably delegate questions of arbitrability to the arbitrator. The RISC requires arbitration for any disputes “in contract, tort, statute or otherwise… Read More

The Agenda can be found at (http://www.consumerfinance.gov/blog/fall-2015-rulemaking-agenda/). Read More

In Harris v. Ally Financial, Inc.,  2015 WL 7588263, at *3 (W.D.Tenn., 2015), Judge McCalla held that a vehicle lessee stated a claim against a vehicle lessor for accord and satisfaction under the facts pleaded. Plaintiff asserts that Defendant breached an accord and satisfaction of the vehicle lease with Plaintiff and the co-buyer. (Compl. ¶ 19.) The parties' lease states that… Read More

 Kolinek v. Walgreen, Co., 2015 WL 7450759, at *7-8 (N.D.Ill., 2015), Judge Kennelly overruled objectors to a proposed TCPA class settlement, and their concern that they would receive pennies on the dollar compared to individual TCPA cases.  The decision is a reasonable primer on the terms to include in TCPA class settlement agreements in order to withstand objectors. For one thing, if… Read More

Dao v. Cello Partnership,  2015 WL 7572304, at *3-5 (D.Minn., 2015), Judge Tunheim granted summary judgment to a FCRA defendant because the Plaintiff -- from an evidentiary standpoint -- could no establish compensable loss. Dao first argues that he was denied mortgage refinancing with PrimeLending because of Verizon's failure to investigate and report the fraudulent accounts. Specifically, Dao contends that PrimeLending relied… Read More

In Ditlevson v. Legal Express, Ltd., 2015 WL 7454147, at *1-2 (N.D.Cal., 2015), Judge Chesney found that a Rosenthal Act defendant must plead specific facts to support a bona fide error affirmative defense, and cannot plead the litigation privilege as an affirmative defense at all. In the Third Affirmative Defense, Legal Express alleges that “any violation was unintentional and resulted despite the… Read More

In Jones v. All American Auto Protection, Inc., et. al., 2015 WL 7566685, at *2-3 (D.Nev. 2015), Judge Hicks found a TCPA defendant not vicariously liable under the TCPA. Plaintiffs argue that even though Royal did not physically place the calls itself, Royal is still vicariously liable under the TCPA because AAAP placed the calls on Royal's behalf. The FCC has… Read More

In Telephone Science Corporation v. Hilton Grand Vacations Company, LLC, 2015 WL 7444409, at *2-3 (M.D.Fla., 2015), Judge Mendoza stayed a TCPA fax class action pending the outcome of Spokeo.   As an initial matter, Telephone Science attempts to avoid a stay by distinguishing Spokeo, wherein the core issue is whether the alleged FCRA violation is a sufficient injury-in-fact. Particularly, Telephone Science… Read More

In Beider v. Retrieval Masters Creditors Bureau, Inc., 2015 WL 7454119 (E.D.N.Y., 2015), Judge Hurley dismissed an FDCPA claim grounded in Plaintiff's claim that the Defendant debt collector did not collect in its "true name" because it collected in a licensed "DBA", the name of which suggested specialization in collection of the type of debts owed. Plaintiff claims that defendant… Read More

In Vargas v. SAI Monrovia B, Inc., 2015 WL 7301781, at *5 (Cal.App. 2 Dist., 2015) (unpublished), the Court of Appeal found the RISC arb. clause not to be unconscionable.  What's interesting about the opinion is what to do with the class action allegations in granting the petition to arbitration.  The Court of Appeal found that the trial court properly… Read More

In Gillespie v. Svale Del Grande, Inc., 2015 WL 7307139, at *5-6 (Cal.App. 6 Dist., 2015) (unpublished), the Court of Appeal issued a lengthy opinion after remand from the Supreme Court in Sanchez that the Arbitration clause was enforceable.  The Court rejected the argument that neither the Arbitration Clause's choice of law or poison-pill provisions negated FAA pre-emption. The California Supreme Court disagreed… Read More

In Litt v. Portfolio Recovery Associates LLC, 2015 WL 7351781, at *7-8 (E.D.Mich. 2015), Judge Borman found that the debtor had standing, and a valid claim, to sue for 200+ "wrong number" calls to the debtor's parents, even if most of them went unanswered.  The District Court found that the Plaintiff should be entitled to summary judgment on his claim for violation… Read More

Okay, so the Bank's summary judgment motion was unopposed, but, the Court still got it right and they still won.  In Johnson v. JP Morgan Chase, 2015 WL 7301082, at *2 (S.D.Tex., 2015), Judge Harmon found that a Bank collecting on a mortgage account did not violate the TCPA. On October 31, 2011 Plaintiff expressly asked to be called at that… Read More

Yes, it's a bit far afield but Judge Chen confirmed the basic principle under California law that the CLRA does not regulate financial products, a principle that the Plaintiff's bar continues to test.  In Kissing v. Wyndham Vacation Resorts, Inc, 2015 WL 7283038, at *3-5 (N.D.Cal., 2015), Judge Chen held that vacation timeshares are not "goods" or "services" under the CLRA. The… Read More

In Brinkley v. Monterey Financial Services, Inc., 2015 WL 7302268 (Cal.App. 4 Dist., 2015), the California Court of Appeal found a TCPA/Call Recording case to be within the scope of an enforceable arbitration clause:= We conclude that Brinkley's claims fall within the scope of the arbitration agreement and that the arbitration agreement is enforceable, with the exception of one provision… Read More

In Nall v. Allied Interstate, LLC, 2015 WL 6529233, at *1-2 (S.D.Ind. 2015), Judge Baker allowed net worth discovery in an FDCPA class action as relevant towards the propriety of class certification. The cases cited by Plaintiff support the requested discovery. See Green, 997 F.Supp.2d at 935–36 (finding net worth helpful in deciding class certification). Net worth is helpful in… Read More

In Tripp v. Berman & Rabin, P.A., 2015 WL 5704075, at *7-10 (D.Kan. 2015), Judge Crabtree rejected the argument that the FDCPA's $500,000 cap prevents certification of an FDCPA class action. Defendants contend that plaintiff cannot carry her burden on this requirement. Defendants argue that the statutory damage cap that applies to a FDCPA class action combined with the large… Read More

In Brooks v. Niagara Credit Solutions, Inc., 2015 WL 6828142, at *1 (D.Kan. 2015), Judge Lungstrom declined to follow the Douglass glassine window case. As will be explained, the court declines to follow the Douglass opinion (which, of course, it is not bound by) and concludes that defendant's use of plaintiff's account number through the envelope's glassine window does not violate the… Read More

In Park v. ARS National Services, Inc., 2015 WL 6579686, at *5 (D.N.J., 2015), Judge Wigenton followed the Third Circuit's Douglass decision. Defendant's argument that the FDCPA does not apply to the barcode at issue because other laws and regulations prohibit third parties from scanning it is unpersuasive. Neither the text nor the underlying purposes of the FDCPA provide any basis… Read More

On Wednesday, the U.S. House of Representatives passed H.R. 1737 ("Reforming CFPB Indirect Auto Financing Guidance Act"), designed to repeal the CFPB's March 2013 bulletin covering indirect auto finance. The Bill "declares without force or effect Consumer Financial Protection Bureau (CFPB) Bulletin 2013-02 (Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act), published March 21, 2013" and "amends… Read More