Consumer Finance

In Roundtree v. Bush Ross, P.A., --- F.R.D. ----, 2014 WL 6969570 (M.D.Fla. 2015), Judge Whittemore found that an FDCPA class action could still be certified despite questions of whether the obligation was consumer or commercial merely by excluding commercial debts from the class definition.  The case arose from a purported “overshadowing” collection letter sent to collect delinquent condominium association… Read More

In Walker v. Transworld Systems, Inc., 2015 WL 631390 (M.D.Fla. 2015), Judge Moody denied summary judgment to a TCPA defendant because, he found, the defendant’s use of “Live-Vox” constituted use of an ATDS under the TCPA. TSI is correct that Walker cannot prevail on her TCPA claim if TSI did not use an ATDS to call Walker. The record reflects… Read More

In In re Capital One Telephone Consumer Protection Act Litigation, --- F.Supp.3d ----, 2015 WL 605203 (N.D.Ill. 2015), Judge Holderman approved a TCPA-class settlement, but reduced Plaintiffs’ counsel’s fee request by approximately 30%. The Settlement Agreement requires Defendants to establish a non-reversionary settlement fund of $75,455,099. (Settlement Agreement § 2.42.) After subtracting notice and administration costs ($5,093,000), Class Counsel's requested… Read More

In Wallace v. Optimum Outcomes, Inc., 2015 WL 627944 (E.D.N.C. 2015), Judge Flanagan entered summary judgment for a TCPA plaintiff who had told a debt collector not to call anymore on one cell phone number but continued to receive calls on another cell phone number. Pertinent to the facts of this case and the earlier one intertwined with it, initiated… Read More

In Slaughter v. LVNV Funding, LLC, 2015 WL 627954 (N.D.Ala. 2015), Judge Bowdre found that an FDCPA claim arising from the defendant’s filing Proofs of Claim on expired debt remained a “core” proceding under Crawford and the reference to the bankruptcy court should not be withdrawn Given the court's determination that the FDCPA claim is inextricably related to the bankruptcy… Read More

In Vantu v. Echo Recovery, L.L.C., --- F.Supp.3d ----, 2015 WL 571102 (N.D.Ohio 2015), Judge Carr found a repossession loses its exemption under the FDCPA when it violates state law. In any event, the fact that Echo's principal business is not debt collection would not save it from liability under the FDCPA. That is so, because Vantu has plausibly alleged Echo is… Read More

In Daniels v. ComUnity Lending, Inc., 2015 WL 541299 (S.D.Cal. 2015), Judge Hayes properly analyzed the distinction between the TCPA’s regulation of cellular and residential lines. The Moving Defendants contend that Plaintiffs have failed to state a violation of the TCPA for making calls to Plaintiffs' residential telephone lines because the Moving Defendants had an established business relationship with Plaintiffs,… Read More

In Sykes v. Mel S. Harris and Associates LLC, --- F.3d ----, 2015 WL 525904 (2d Cir. 2015), the Court of Appeals for the Second Circuit certified a class against a debt collector who purported to operate a mill that resulted in illegal default judgments in New York City.  These default judgments, in the words of plaintiffs, are the result… Read More

In Bentkowsky v. Benchmark Recovery, Inc, 2015 WL 502948 (N.D.Cal. 2015), Judge Chhabria addressed whether an intent element is required for imposition of a statutory penalty under the Rosenthal Act versus the FDCPA’s “strict” liability provision. The defendants also contend that the Court lacked authority to award $1,000 more in damages, for the same violation, under section 1788.17. On further… Read More

In Lopez v. Asbury Fresno Imports, LLC, --- Cal.Rptr.3d ----, 2015 WL 513150 (Cal.App. 5 Dist. 2015), the Court of Appeal affirmed a bench trial award in favor of a car dealer against a consumer.   The Court of Appeal rejected Plaintiffs’ claim under the Rees-Levering Automobile Sales Finance Act, finding that even if a “Four-Square” was a “purchase order” under… Read More

In Glauser v. GroupMe, Inc., 2015 WL 475111 (N.D.Cal. 2015), Judge Hamilton found that GroupMe's business model did not trigger or violate the TCPA because the software that sent the text was triggered by GroupMe's customers and, therefore, there was "human intervention". This putative class action arises under the Telephone Consumer Protection Act (“TCPA”), which prohibits the making of any call (including… Read More

In Blandina v. Midland Funding, here, Judge Quinones Alejandro held that the $500,000 statutory class action penalty under the FDCPA applies "per lawsuit" and not "per defendant". While the Third Circuit has not addressed directly whether the FDCPA statutory limit for class actions provides a maximum amount of recovery per action as opposed to per defendant, the Third Circuit, along… Read More

In Smith v. Markone Financial, LLC, 2015 WL 419005 (M.D.Fla. 2015), Judge Corrigan granted partial summary judgment to a TCPA plaintiff on the basis that a LiveVox dialing system used by the defendant was an ATDS under the TCPA. As it is undisputed that MarkOne called Smith using a LiveVox system, the Court only needs to determine whether that system… Read More

In McKenna v. WhisperText, 2015 WL 428728 (N.D.Cal. 2015), Judge Grewal found that a TCPA plaintiff pleaded himself out of a TCPA claim because there was no allegation of an absence of human intervention. A little over a year ago, Plaintiff Tony McKenna got a text he did not expect from “16502412157.” The text was an invitation to download the… Read More

In Orr v. Credit Protection Ass'n, L.P., 2015 WL 439343 (M.D.Fla. 2015), Judge Corrigan denied summary judgment on the basis that a triable issue of fact existed as to whether a TCPA customer had, in fact, given consent to be autodialed on her cellular telephone. The key issue is therefore whether either Mr. or Mrs. Orr provided prior express consent to call… Read More

In Meyer v. Bebe Stores, Inc., 2015 WL 431148 (N.D.Cal. 2015), Judge Rogers found that a TCPA plaintiff stated a claim for a class-wide TCPA violation. Plaintiff is a California resident. (FAC ¶ 6.) FN1 Defendant, a California corporation, operates retail clothing stores throughout the United States. (Id.¶¶ 7–8, 15.) On or about December 10, 2013, plaintiff visited one of… Read More

“A secured party is the master of its own termination statement,” or so said the Supreme Court of Delaware in ruling that a UCC-3 termination statement, which was filed by mistake and resulted in the termination of a $1.5 billion term loan, was effective because the filing was authorized by the secured parties involved. The Uniform Commercial Code (the “UCC”)… Read More

In Bayol v. Zipcar, Inc., 2015 WL 394515 (N.D.Cal. 2015), Judge Henderson found that a Plaintiff stated a claim for the imposition of illegal late fees under a fractional auto renter’s agreement. California law places significant restrictions on a party's ability to use a consumer contract to set what damages it will be entitled to in the event of a… Read More

In Kielty v. Midland Credit Management, Inc., 2015 WL 400584 (S.D.Cal. 2015), Judge Bashant held that a debt collector stating that payment could help repair the debtor’s credit did not trigger the Credit Repair Organizations Act. Unlike FreeScore, Midland does not offer any service for the purpose of providing assistance or advice to improve consumers' credit record in return for… Read More

In Gensel v. Performant Technologies, Inc., 2015 WL 402840 (E.D.Wis. 2015), Judge Randa stayed a TCPA—wrong party case under the Primary Jurisdiction Doctrine. Lennett Gensel's cell phone provider assigned her a number that was previously assigned to a woman who defaulted on a student loan. Performant Technologies, Inc. repeatedly called that number in an attempt to collect on the debt.… Read More