In Dalton v. Santander Consumer USA, Inc., --- P.3d ----, 2014 WL 7463867 (N.M.App. 2015), the New Mexico Court of Appeal found that an arbitration clause an automobile RISC was unconscionable, and that the unconscionability analysis was not preempted by the FAA. A recent decision of a federal court applying California's unconscionability doctrine to an arbitration scheme identical to that in this… Read More
In Collins v. Experian Information Solutions, Inc., --- F.3d ----, 2015 WL 55345 (11th Cir. 2015), the Court of Appeals for the 11th Circuit held that a FCRA Plaintiff need not show an actual declination of credit in order to support an emotional distress claim under FCRA. Curtis J. Collins appeals the district court's grant of summary judgment in favor of… Read More
In Gesten v. Stewart Law Group, LLC, --- F.Supp.3d ----, 2014 WL 7243330 (S.D.Fla. 2014), Judge Cohn denied a TCPA defendant’s Motion to Dismiss the Plaintiff’s complaint, rejecting the argument that the Plaintiff must plead that she was charged for the call. Defendant first argues that Plaintiff lacks standing to sue under the TCPA because Plaintiff has not alleged that… Read More
In McGill v. Citibank, N.A., --- Cal.Rptr.3d ----, 2014 WL 7202035 (Cal.App. 4 Dist. 2014), the California Court of Appeal held that Concepcion overruled California’s Broughton-Cruz rule. Citibank petitioned to compel McGill to arbitrate her claims based on an arbitration provision in her account agreement. The trial court granted the petition on McGill's claims for monetary damages and restitution, but… Read More
In Flannery v. VW Credit, Inc., --- Cal.Rptr.3d ----, 2014 WL 7174376 (Cal.App. 2014), the Court of Appeal for the 4th Appellate District reversed a trial court’s sustaining of a demurrer without prejudice on a class action filed under California’s Vehicle Leasing Act. The VLA requires a statement be mailed to the debtor after repossession of a leased vehicle that… Read More
In Johnson v. Yahoo!, Inc., 2014 WL 7005102 (N.D.Ill. 2014), Judge Shah denied Yahoo!'s motion for summary judgment on Plaintiff's TCPA case, on the basis that triable issues of fact remained as to whether Yahoo! used an ATDS. Plaintiffs are cell phone subscribers who each received at least two text messages from defendant Yahoo!. The first: personalized text messages originally sent… Read More
In Morse v. Allied Interstate, LLC, --- F.Supp.3d ----, 2014 WL 7004036 (M.D.Pa. 2014), Judge Nealon granted Plaintiffs' Motion for Partial Summary Judgment on a TCPA case, finding that the defendant had used an ATDS. Here, the parties agree there was no human intervention at the time the calls were placed. The calls were made without a human contemporaneously dialing the number… Read More
In Lopez v. Mid–America Accounts Control Bureau, 2014 WL 6908140 (W.D.Mo. 2014), the District Court granted summary judgment to an FDCPA defendant whose voicemail message to the debtor did not identify the call as being from a debt collector. Plaintiff claims Defendant's single voicemail on May 10, 2013, violated the FDCPA because the caller did not identify herself as a debt collector.… Read More
In Grandidier v. Quantum3 Group, LLC, 2014 WL 6908482 (S.D.Ind. 2014), Judge Young found that the FDCPA prohibits filing proofs of claim in bankruptcy court on debts that would be barred by the statute of limitations. The Eleventh Circuit recently decided a case nearly identical to the one before the court. See Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.2014).… Read More
In Derderian v. Southwestern & Pacific Specialty Finance, Inc., 2014 WL 6980525 (S.D.Cal. 2014), Judge Lorenz granted summary judgment to a lender on a FCRA claim that alleged that the lender had accessed the Plaintiff's credit report for an impermissible purpose without making a Firm Offer of Credit. The facts were as follows: On September 15, 2012 and March 15, 2013, Southwestern… Read More
In Harold v. Steel,--- F.3d ----, 2014 WL 6981364 (7th Cir. 2014), the Court of Appeals for the Seventh Circuit affirmed dismissal of an FDCPA suit based on the Rooker-Feldman doctrine. The facts were as follows: A small claims court in Marion County, Indiana, entered a judgment against Kevin Harold for a little more than $1,000. He did not pay, even though… Read More
In Lee v. Gulf Coast Collection Bureau, 2014 WL 6978760 (M.D.Fla. 2014), Judge Bucklew denied summary judgment to a TCPA defendant because, where multiple medical services were given to the Plaintiff, the Defendant's Motion did not connect each call made to each service for which consent was given. Defendant argues that it called Plaintiff's cell phone with Plaintiff's prior express consent,… Read More
In Gonzalez v. Harris Farms, Inc., 2014 WL 6981429 (E.D.Cal. 2014), Judge O'Neill dismissed a cross-complaint for indemnity arising out of a purported FACTA violation. On December 4, 2013, Plaintiff Jose Gonzalez (“Gonzalez”) brought an action on behalf of himself and all others similarly situated in the Superior Court of the State of California, County of Fresno against Harris Farms, the owners… Read More
In In re Johnson, 2014 WL 6953306 (9th Cir.BAP 2014), the 9th Cir. BAP applied In re: Penrod to bifurcate secured and unsecured claims on an automobile subject to a retail installment sales contract, but found that the unsecured claim should not be reduced to zero. On August 3, 2012, Johnson purchased a 2013 Hyundai Accent from Win Hyundai Carson. Win Hyundai financed… Read More
In Coniglio v. Bank of America, 2014 WL 6882294 (M.D.Fla. 2014), Judge Kovachevhich refused to set aside a TCPA default judgment because the defendant's allegation that it did not use an ATDS was without merit and because Plaintiff had alleged that any consent given to be autodialed on his cellular telephone was revoked. 2. Bank of America alleges it did not use… Read More
In Ott v. Mortgage Investors Corp. of Ohio, Inc., 2014 WL 6851964 (D.Or. 2014), Judges Steward found that Plaintiffs had adequately pleaded a TCPA class action and allowed it to proceed beyond the pleadings stage. The facts were as follows: Plaintiffs, Kelly Ott, Nancy Luebben, and Benjamin Gesler, filed this class action against defendants for violations of the Telephone Consumer Protection… Read More
In Keim v. ADF Midatlantic, LLC, --- Fed.Appx. ----, 2014 WL 6734829 (11th Cir. 2014), the Court of Appeals for the 11th Circuit held that a Rule 68 Offer did not moot a TCPA class action plaintiff's claims. We have today issued our opinion in Jeffrey Stein, D.D.S., M.S.D., P.A. v. Buccaneers Ltd. Partnership, ––– F.3d ––––, No. 13–15417 (11th Cir.––––, 2014).… Read More
In McIvor v. Credit Control Services, Inc., --- F.3d ----, 2014 WL 6805380 (8th Cir. 2014), the Court of Appeals for the Eighth Circuit held that a debt collector’s reinvestigation of a credit dispute and communications with the CRAs was not a “communication” in connection with the collection of a debt under FCRA because, instead, it was the debt collector’s… Read More
In Toney v. Quality Resources, Inc., --- F.Supp.3d ----, 2014 WL 6757978 (N.D.Ill. 2014), Judge St. Eve found that the Defendant’s efforts to “upsell” the debtor on other products (so-called “dual purpose” calls) exceeded the limited consent the consumer had given to be called on her cellular telephone. The facts were as follows: Toney alleges that on December 8, 2012,… Read More
In Nunes v. Twitter, Inc., 2014 WL 6708465 (N.D.Cal. 2014), Judge Chhabria, found that Plaintiff adequately had pleaded use of an ATDS and an absence of consent under Soppett. At least two district courts have held that the FCC, in the above-referenced orders, unlawfully expanded the statute's definition of an automatic telephone dialing system. See Marks v. Crunch San Diego,… Read More
