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
In Overholt v. CarMax Auto Superstores California, LLC, 2015 WL 403873 (E.D.Cal. 2015), Judge Burrell granted summary judgment to a car dealer who allegedly had falsely stated that the vehicle was “certified” and allegedly had failed to disclose that the vehicle was prior daily rental. On December 31, 2011, Plaintiff purchased a used 2010 Jeep Liberty (the “Jeep.”) from CarMax.… Read More
After the landmark decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), businesses with arbitration clauses in their consumer and employment agreements breathed a sigh of relief. There was finally some protection against the legalized extortion racket that we know as class actions. But Concepcion involved an arbitration clause that expressly precluded the arbitrator from hearing class claims.… Read More
In recent years, distribution of class settlement funds to various charitable groups has become commonplace. For distributions to class members that are unclaimed, impractical to distribute, or de minimis, courts will often bless a distribution of settlement funds to a charitable organization under the "cy pres" doctrine. The doctrine takes its name from the French Norman term "cy pres comme possible,"… Read More
In another blow to the financial services industry, the Nevada Supreme Court has dropped a bombshell on lenders who make senior loans secured by real property in Nevada, and potentially other states that have adopted the Uniform Common Interest Ownership Act ("UCIOA"). SFR Invs. Pool I, LLC v. U.S. Bank, N.A., 334 P.3d 408 (Nev. 2014). UCIOA was promulgated in… Read More
There has been a recent round of investigations by at least one government agency looking into whether trustees violated California Civil Code Section 2923.3(c)(1) and (d)(1) when they record a Notice of Default or a Notice of Sale that does not have the single-sentence translation required by that statute appearing on the first page. This investigation appears to be based… Read More
"A secured party is the master of its own termination statement," or so says 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 ("UCC") tells… Read More
Effective July 1, 2015—All California Employers Must Offer Paid Sick Time To Part-Time, Temporary and Full-Time Employees To Care for Themselves, Extended Family, and Victims of Domestic Violence On September 10, 2014, Governor Jerry Brown signed the Healthy Workplaces, Healthy Families Act of 2014 (the "Act"), which provides paid sick days to millions of Californians—roughly 40% of the state’s workforce—who… Read More
What is a "Legal Department"? Must it have lawyers? Can a finance company call its collection employees who perform quasi-legal functions its "Legal Department"? The Federal Trade Commission ("FTC") says maybe not. The FTC recently sued RTB Enterprises, Inc., and its principal, for improper debt collection practices, one of which included using legal-sounding terms that left consumers with the impression… Read More
Recently, regulators—particularly the Federal Trade Commission ("FTC")—have taken an active interest in companies charging "transaction fees" when collecting on their accounts. Regulators are particularly concerned about situations where the borrower is not given any meaningful choice to avoid extra costs and fees. Fees for payments by phone, overnight delivery, online payments, and any other "convenience" charges are subject to regulation.… Read More
The Fair Credit Reporting Act ("FCRA") prohibits furnishers of credit from providing inaccurate or misleading information to Consumer Reporting Agencies ("CRAs"). The meaning of "inaccuracy," however, remains hotly-litigated. The manual published by the Consumer Data Industry Association ("CDIA") states that the "purpose of [the CDIA] guide is to document [the credit reporting] process" and the "Industry Standards" for consumer reporting.… Read More
In Palm Beach Golf Center—Boca, Inc. v. Sarris, 771 F.3d 1274 (11th Cir. 2014), the Eleventh Circuit Court of Appeal rejected a constitutional "injury in fact" standing defense where the plaintiff had no memory of receiving, seeing or reading a one-page fax. The court held that injury sufficient for standing purposes was established by tying up of a fax transmission… Read More
In Zarichny v. Complete Payment Recovery Services, Inc., --- F.Supp.3d ----, 2015 WL 249853 (E.D.Pa. 2014), Judge Dalzell struck an FDCPA/TCPA class at the pleadings stage because it was an impermissible "fail-safe" class. Because plaintiff's class definitions create impermissible fail-safe classes, we need not consider defendants' second ground for striking her class allegations—that plaintiff is not an adequate class representative because… Read More
In Alvarado v. Bay Area Credit Service, LLC, 2015 WL 224950 (N.D.Cal. 2015), Judge Conti denied a Motion to Stay a TCPA case. Precisely this issue was recently raised in another case in this District. In Nationstar, Judge Orrick considered whether pending FCC decisions counseled a stay of that matter. One such issue before the FCC was “whether dialing equipment… Read More
In Buchanan v. Northland Group, Inc.,--- F.3d ----, 2015 WL 149528 (6th Cir. 2015), the Court of Appeals for the 6th Circuit found a debt-buyer's collection deceptive because it did not disclose that the statute of limitations on the debt had run and, if the debtor made a partial payment, it would commence a new statute of limitations. The “settlement offer”… Read More
In Powers v. Credit Management Services, Inc., --- F.3d ----, 2015 WL 160285 (8th Cir. 2015), the Court of Appeals for the 8th Circuit reversed certification of an FDCPA class action because it was not the superior means of adjudicating the claims. The Court of Appeals, Loken, Circuit Judge, held that: (1) consumers' claim that debt collector's standard collection complaints improperly… Read More
In Johns v. Wells Fargo Bank, N.A., 2015 WL 143753 (S.D.Ala. 2015), Judge DuBose found that a mortgage servicer who acquired defaulted debt had to comply with the FDCPA's Mini-Miranda and debt validation requirements. In this case, the Johns allege that servicing of their loan was transferred to the defendant on or about February 16, 2007—while their bankruptcy petition was pending—at a… Read More
In Wales v. Arizona RV Centers, LLC, 2015 WL 137260 (E.D.La. 2015), Judge Lamelle explained the scope of the FTC Holder Rule's "Claims and Defenses" language in connection with the sale of a defective RV. As the foregoing reveals, Defendant's contentions as to the ability of buyers to assert affirmative claims against lenders under the FTC Holder Rule are contradicted by the… Read More
In Hernandez v. W.R. Thomas, Inc., 2015 WL 112799 (Cal.App. 4 Dist. 2015), the Court of Appeal found in an unpublished decision that a consumer failed to meet its burden of demonstrating that the arbitration clause found in the standard for automobile RISC was unconscionable. After considering these submissions, the court issued an order scheduling an evidentiary hearing “on the limited issue… Read More
In Kalkstein v. Collecto, Inc., --- F.R.D. ----, 2015 WL 59246 (E.D.N.Y. 2015), Judge Spatt found that the fact that a putative class member would receive less in a class settlement than if the class member sued individually did not defeat class certification. The superiority element of Rule 23(b)(3) requires the court to examine whether a class action is superior… Read More
