Consumer Finance

In Janson v. Katharyn B. Davis, LLC, 2015 WL 7253244, at *2 (C.A.8 (Mo.),2015), a renter lost a state court collection action, and then sued in federal court claiming that an affidavit filed filed in the state court action was false; namely, because it asserted that he owed rent.   How this side-stepped the Rooker-Feldman doctrine escapes me, but the 8th… Read More

In Springer v. Fair Isaac Corp., 2015 WL 7188234, at *5 (E.D.Cal., 2015), the Court addressed what affirmative defenses may be pleaded in a TCPA action.  The Court allowed the affirmative defense of "good faith" to proceed. Defendant's third affirmative defense of reasonable and good faith states: "Defendant's actions were taken in good faith, in reliance upon information provided by its customers… Read More

In Snyder v. Nationstar Mortgage, LLC, 2015 WL 7075622, at *7-8 (N.D.Cal., 2015), Magistrate Judge Corley allowed a FCRA/Rosenthal Act claim past the pleadings stage.  As to the FCRA claim, the Court found that the question of FCRA accuracy is determined past the pleadings stage. To state a claim under the FCRA against...a furnisher of credit information, the [p]laintiff must allege that… Read More

In Curry v. Synchrony Bank, N.A., 2015 WL 7015311, at *2-3 (S.D.Miss.,2015), Judge Guirola found that a TCPA plaintiff did not plead facts to suggest that an ATDS was used under the TCPA. The Court has found no binding precedent within the Fifth Circuit with respect to the types of allegations required to raise a right to relief above the speculative… Read More

In Benzemann v. Citibank N.A., 2015 WL 7145772, at *4-5 (C.A.2,2015), the Court of Appeals for the Second Circuit found that an FDCPA violation “occurs” for the purposes of the FDCPA's statute-of-limitations provision when a bank freezes a debtor's bank account, not when a debt collector sends a restraining notice to the bank. We recognize that, in the context of FDCPA claims… Read More

In Vasquez v. Bank of America, N.A., 2015 WL 7075628, at *3 (N.D.Cal., 2015), Judge Seeborg found a FCRA Plaintiff's claims within the applicable statute of limitations. Federal courts are split on the question of whether each separate notice of dispute triggers a duty to investigate even if the information has been disputed previously. The majority of courts have concluded that “each… Read More

The United States Supreme Court will decide this term whether a strategy used by some class action defendants to minimize class action liability—including some banks in recent class actions—will continue to be a viable strategy to eliminate class action lawsuits. So-called “pick-off” settlements have long been controversial, and that controversy has now reached the high court. Because class actions bring… Read More

No, the Consumer Financial Protection Bureau (“CFPB”) is not meddling—at least not yet—in the fraught area of reproductive rights. “Concepcion” in this instance refers to the landmark decision of the United States Supreme Court in AT&T Mobility v. Concepcion, ___ U.S. ___, 131 S. Ct. 1740 (2011), that held that traditional one-on-one arbitration as envisioned by the Federal Arbitration Act… Read More

David Berkley (OC) and Eric J. Troutman (OC) represented a major automobile finance institution in an AAA arbitration brought by a claimant alleging that Severson’s client had violated the Telephone Consumer Protection Act and the Fair Debt Collection Practices Act and for common law violation of privacy. After hearing the evidence, the arbitrator found in favor of Severson’s client on… Read More

The 1970 Bank Secrecy Act (the “BSA”), as amended from time to time by laws such as the Annunzio-Wylie Anti-Money Laundering Act and the USA PATRIOT Act, was designed to require financial institutions to assist the government in detecting and preventing criminal activity such as money laundering, drug trafficking and terrorist financing. To accomplish its purpose, the BSA requires banks… Read More

In March 2014, President Obama directed the United States Department of Labor (“DOL”) to modernize and streamline the Fair Labor Standard Act’s (“FLSA”) overtime regulations. In response, the DOL published a notice of proposed rulemaking to bring nearly 4.7 million currently exempt employees within the scope of overtime protections. Currently, California’s minimum salary requirement is more restrictive than federal law,… Read More

Recently, in a year heavy on United States Supreme Court decisions involving Title 11 bankruptcy, the Supreme Court decided a case important to the residential lending and servicing industries. In Bank of American, N.A. v. Caulkett, ___ U.S. ___, 135 S. Ct. 1995 (2015), a Chapter 7 debtor sought to entirely void a junior lien on the ground that there… Read More

Suppose, hypothetically, that a large manufacturer of automobiles—call them People’s Car, Inc.—has a problem with computer chips in their engines. How might this impact financial service providers? In 1975, the Federal Trade Commission (“FTC”) promulgated the “FTC Holder Rule,” which was designed to limit the “holder in due course doctrine” that had allowed sellers to employ procedures in the course… Read More

Introduction. According to the Terminator movies, Skynet, the nefarious defense computer system that turned on and later waged war against humans, was to become self-aware at 2:14 a.m. on August 29, 1997. We all assumed we were safe when that date passed, and nothing happened. But perhaps Sarah and John Conner managed only to delay Skynet’s progress. The “Google Car”… Read More

When the Federal Communications Commission (“FCC”) issued its July 10, 2015 omnibus order regarding the Telephone Consumer Protection Act (“TCPA”), the agency made clear that it intends to find no bounds to the scope and application of the TCPA. The FCC’s latest move complements this theme, while bringing new questions to light. On September 11, 2015, the FCC issued dual… Read More

In In re Baroni, 2015 WL 6956664, at *12 (9th Cir.BAP (Cal.), 2015), the 9th Circuit BAP found that a debt secured by investment property was not an consumer "debt" under the FDCPA. As a second alternate theory for granting summary judgment against Allana on her FDCPA claim, the bankruptcy court held that the Carmel refinancing loan was not a… Read More

In Ellin v. Credit One Bank, 2015 WL 7069660 (D.N.J. 2015), Judge Wolfson ordered a TCPA case to arbitration. Having concluded that a valid agreement between the parties exists, the Court must next determine whether the dispute at hand falls within the ambit of the Agreement's arbitration clause. In making this determination, “the Court should keep in mind federal policy favors… Read More

In Mitchell v. LVNV Funding, LLC, 2015 WL 7016343, at *10-11 (N.D.Ind.,2015), Judge Springmann rejected an FDCPA defendant's argument that the FDCPA's $500,000 penalty cap and resulting de-minimus class recovery rendered the class action device an inferior means to adjudicate a mass-action. Despite these limits, the Defendants assert that a class action is not superior because recovery is de minimis where… Read More

In Ghawi v. Law Offices Howard Lee Schiff, P.C., 2015 WL 6958010, at *3-5 (D.Conn., 2015), Judge Arterton denied summary judgment to a TCPA defendant, rejecting the argument that the calls were not to a cellular telephone so long as the debtor told the caller that the calls were routed to a a cell phone. All Defendants argue that Mr. Ghawi's… Read More

In Grind Lap Services, Inc. v. UBM, LLC, 2015 WL 6955484, at *3 (N.D.Ill., 2015), Judge Gettlemen granted summary judgment to a TCPA Blast-Fax defendant, holding that the fax was not an advertisement. According to an order issued by the Commission, “messages whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter… Read More