Consumer Finance

In Smith v. NCO Financial Systems, Inc.,  2015 WL 2185252 (E.D. Cal. 2015), Judge Delaney dismissed an in pro per's TCPA complaint. Defendant moves to dismiss the TCPA claim on three grounds: (1) plaintiff's exhibit attached to the complaint shows that the phone number called (916–929–4665) was different than that alleged in the complaint (916–918–9481) and plaintiff does not allege that the… Read More

In Kristensen v. Capital One Bank, N.C., 2015 WL 2151751 (C.D.Cal. 2015), Judge Gee granted a stay of a TCPA re-assigned number case under the Primary Jurisdiction Doctrine. The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. Clark v. Time Warner… Read More

In Wilcox v. Green Tree Servicing, LLC, 2015 WL 2092671 (M.D. Fla. 2015), Judge Bucklew denied a TCPA Plaintiff’s summary judgment motion on the basis that Plaintiff had not adequately proved that Defendant used an ATDS. Defendant argues that the evidence shows that its agents manually dialed Plaintiff’s cell phone for all of the calls at issue. In support of… Read More

In Modica v. Green Tree Servicing, LLC., 2015 WL 1943222 (N.D. Ill. 2015), Judge Zagel granted summary judgment to a mortgage company on a TCPA claim because no ATDS was used.  The facts were as follows: Defendant employed two methods to place outgoing calls to Plaintiffs from October 2011 to April 24, 2012:(1) Aspect Unified IP Version 6.6 Service Pack 2 (“Dialer”),… Read More

Yesterday, the California Supreme Court heard oral argument in Sanchez (Gil) v. Valencia Holding Co. LLC, S199119. (B228027; 201 Cal.App.4th 74; Superior Court of Los Angeles County; BC433634) on whether the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempts state law rules invalidating mandatory arbitration provisions… Read More

In Cutler ex rel. Jay v. Sallie Mae, Inc., 2015 WL 1909482 (C.D. Cal. 2015), Judge Fitzgerald found that the FDCPA’s “continuing violation” doctrine did not apply to exempt a Plaintiff’s FDCPA claims from the FDCPA’s 1-year statute of limitations. Determining whether the statute of limitations bars a FDCPA and/or RFDCPA claim depends on an analysis of the type of… Read More

In Bartell v. National Collegiate Student Loan Trust 2005-3, 2015 WL 1907337 (N.D. Cal. 2015), Judge Seeborg found that an FDCPA plaintiff stated a claim against the debt collectors. On September 19, 2013, Bartell received a telephone voice message including neither the caller’s identity nor a clear indication of the caller’s purpose. Upon tracing the number, she discovered the call… Read More

In Alvarado v. Credit Protection Ass’n, L.P, 2015 WL 1815863 (M.D. Fla. 2015), Judge Covington held that, although a debtor consented to have his cell phone called when he provided the number in connection with the transaction creating the debt, a triable issue of fact existed as to whether a “pre-suit demand letter” constituted revocation of consent. Here, when Plaintiff… Read More

In Spokeo v. Robins,742 F.3d 409 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit found that FCRA itself provided Article III standing, even if the Plaintiff could prove no actual damage.  Spokeo contends, however, that Robins cannot sue under the FCRA without showing actual harm. But the statutory cause of action does not require a showing of… Read More

In Bayat v. Bank of the West, 2015 WL 1744342 (N.D. Cal. 2015), Judge Chen granted final approval to a TCPA class action settlement.   The settlement class consisted of “All persons within the United States to whom, on or after November 2, 2008 through [July 22, 2014], a non-emergency telephone call was attempted by Bank of the West, or any… Read More

In Roadhouse v. Patenaude & Felix, A.P.C. , 2015 WL 1691885  (D.Nev. 2015), Judge Navarro denied a debt collector’s Motion for Summary Judgment based on the bona-fide error defense because the debt collector continued to prosecute the underlying debt collection lawsuit despite knowledge provided by the debtor that the statute of limitations had run on the obligation. Defendant asserts that… Read More

In Mahdavi v. NextGear Capital, Inc., 2015 WL 1526538 (E.D. Va. 2015), Judge Buchanan found that a triable issue of fact existed as to whether a floorplan lender’s security interest was superior to a buyer-in-the-ordinary-course’s interest. Courts have used a variety of factors to determine if someone is a buyer in the ordinary course of business including where the sale… Read More

In Mogadam v. Fast Eviction Service, 2015 WL 1534450 (C.D. Cal. 2015), Judge Selna found use of an ATDS and a class action under the TCPA adequately pleaded. No single fact in particular must necessarily be present or absent to meet the sufficiency requirement for pleading the use of an ATDS in a TCPA claim; courts have considered the nature… Read More

In Booth v. Appstack, Inc., 2015 WL 1466247 (W.D. Wash. 2015), Judge Robart re-defined a TCPA-telemarking class definition to avoid fail-safe problems.  In its ascertainability analysis, the District Court redifined the class definition to deal with the fail-safe problem by eliminating the requirement of proof of non-consent by each classmember. Defendants’ final argument is that the class is not ascertainable… Read More

In Anderson v. Security Finance of Idaho, LLC, 2015 WL 1478440 (D. Idaho 2015), Judge Winmill found that manually dialed calls are exempt from the TCPA. The TCPA provides, in pertinent part, that “It shall be unlawful for any person within the United States ... to make any call (other than a call made for emergency purposes or made with… Read More

We received word that the Supreme Court (finally) scheduled oral argument in the Sanchez matter for May 5, 2015 at 9:00 in San Francisco.  We will report following oral argument. Read More

In Simon v. Healthways Inc, 2015 WL 1568230 (C.D.Cal. 2015), Judge O’Connell refused to stay a TCPA blast-fax class action based on the Primary Jurisdiction Doctrine. To begin. Defendants argue that the Court should stay these proceedings in accordance with the primary jurisdiction doctrine due to the FCC’s recent clarification that solicited faxes must provide opt-out notice. The primary jurisdiction… Read More

In Lafferty v. Wells Fargo Bank, 2015 WL 1383659 (Cal.App. 3 Dist. 2015), the California Court of Appeal found the FTC Holder Rule did not deprive a holder of a RISC of the opportunity to defend itself merely because the automobile purchaser had obtained a default judgment against the selling dealer. The Laffertys argue they are necessarily already the prevailing party because… Read More

In Soulliere v. Central Florida Inv., Inc., 2015 WL 1311046 (M.D.Fla. 2015), Judge Whittemore found that a non-subscriber/regular user of a cellphone had standing to bring a TCPA claim and that there was a triable issue of fact regarding whether there was consent or whether such consent had been revoked. Defendants argue that Plaintiff does not have standing because he… Read More

In Haghayeghi v. Guess?, Inc., 2015 WL 1345302 (S.D.Cal. 2015), Judge Houston refused to strike a TCPA class as an impermissible “fail-safe” class at the pleadings stage. Defendant argues Plaintiff's class definition must be stricken because it is an improper fail-safe class. Defendant maintains the purported class definition seeks to include only those people who received an unauthorized text message,… Read More