In Warnick v. DISH Network LLC, 2014 WL 6680407 (D.Colo. 2014), Judge Daniel made permanent what he previously made only temporary: that Plaintiff could not plead a recursive “fail-safe” TCPA class consisting of recipients of auto-dialed calls to their cellphones who had not provided prior express consent. Plaintiff argues, however, that he has addressed concerns about the TCPA Tracker class… Read More
In Davidson v. Capital One, N.A., 2014 WL 6682532 (S.D.Fla. 2014), Judge Altonago found that a FCRA Plaintiff must prove inaccuracy in the credit reporting, even if a furnisher did not conduct an adequate re-investigation. Capital One argues an FCRA plaintiff must establish the underlying information reported to the CRA is incorrect. (See Capital One Mot. 10). The Davidson Response… Read More
In Lujan v. Professional Collection Consultants, 2014 WL 6698082 (Cal.App. 1 Dist. 2014), the Court of Appeal in an unpublished case found that Civil Code § 1714.10 does not provide protection to a debt collection attorney from a Rosenthal Act claim where no conspiracy claim was alleged and where the debt collection attorney engaged in conduct external to his/her role… Read More
In Maraan v. Dish Network, L.L.C., 2014 WL 6603233 (S.D.Ohio 2014), Judge Spiegel, found that a subscriber to a cellular telephone service had standing under the TCPA even if the subscriber was not the party who actually answered the call. On summary judgment, however, Defendant has reversed course on this issue, and now maintains that Plaintiff, because he is merely… Read More
In Wells v. Healthcare Financial Services, LLC, 2014 WL 6474276 (S.D.Miss. 2014), Judge Starrett held that unanswered calls are not “communications” within the meaning of the FDCPA. Section 1692a(2) defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). At least one district court has held that… Read More
In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through… Read More
In Mlnarik v. Smith, Gardner, Slusky, Lazer, Pohren & Rogers, LLP, 2014 WL 6657747 (N.D.Cal. 2014), Judge Freeman held that finds incurred for violating restrictive covenants in an HOA’s CC&Rs was neither a consentual transaction to constitute a “debt” under the FDCPA nor a “consumer credit transaction” under the Rosenthal Act. Because the allegations in the FAC indicate that the… Read More
In Inzerillo v. Green Tree Servicing, LLC, 2014 WL 6660534 (N.D.Cal. 2014), Judge James found that a debtor’s parents (i.e. third parties) who were repeatedly called in connection with the daughter’s debts were afforded no relief (i.e. lacked standing) under the Rosenthal Act. In their Second Cause of Action, Plaintiffs allege that the “acts and omissions of Defendants constitute numerous… Read More
We previously reported on the Taylor case’s holding that a TCPA plaintiff need not plead that they incurred a cost as a result of the TCPA-offending call. (http://www.calautofinance.com/?p=5147). This week, however, in Taylor v. Universal Auto Group I, Inc., 2014 WL 6654270 (W.D.Wash. 2014), Judge Strombom found that Plaintiff had met all of the usual requirements of FRCP 23 to… Read More
In Ybarra v. Dish Network LLC, 2014 WL 6085292 (N.D.Tex. 2014), Judge O’Connor granted summary judgment to a TCPA Plaintiff without requiring the Plaintiff to demonstrate the use of an ATDS, so long as the Plaintiff could show that a pre-recorded voice was used. The TCPA prohibits calls using an ATDS or a prerecorded voice. 47 U.S.C. § 227(b)(1)(A). DISH… Read More
In Zweigenhaft v. Receivables Performance Management, LLC, 2014 WL 6085912 (E.D.N.Y. 2014), Judge Dearie found a voicemail message did not violate the FDCPA. The case involved a voicemail message stating that a call was from a debt collector coupled with a return phone call where the voicemail message’s intended recipient is disclosed to a third-party. Courts addressing whether overheard voicemails… Read More
In Bunce v. Portfolio Recovery Associates, LLC, 2014 WL 5849252 (D.Kan. 2014), Judge Marten concluded that a creditor’s charge-off of an account did not preclude the debt collector from charging interest. The court concludes that simply because the original creditors charged off the accounts and stopped sending month statements does not preclude the assignee of the accounts from seeking to… Read More
Birchmeier, et al. v. Caribbean Cruise Line, Inc., Case No. 12 C 4069 (N.D. Ill. 2014), here, Judge Kennelly certified two nationwide classes of individuals who received robocalls offering a free cruise trip for participation in a political survey. The plaintiffs alleged that these robocalls violated the TCPA. Between August 2011 and August 2012, millions of calls were made, and… Read More
In Buchholz v. Valarity, LLC, 2014 WL 5849434 (E.D.Mo. 2014), Judge Adelman clarified his previous ruling on the parties’ summary judgment motions, finding that a TCPA plaintiff can orally revoke consent. This case stems from Defendant's use of an automatic telephone dialing system (“ATDS”) to repeatedly call Plaintiff's cell phone in an attempt to collect a $354 debt Plaintiff owed… Read More
In Jallo v. Midland Funding, LLC, 2014 WL 5810203 (S.D.Cal. 2014), Judge Benitez enforced an arbitration clause in a credit card agreement and ordered an FDCPA/Rosenthal Act class action to arbitration. The arbitration clause in dispute is broad. See Simula, Inc. v. Autolive, Inc., 175 F.3d 716, 720–21 (9th Cir.1999) (construing “all disputes arising in connection with” language as broad).… Read More
In Chatman v. GC Services, LP, --- F.Supp.3d ----, 2014 WL 5783095 (D.S.C. 2014), Judge Currie found that two voicemail messages left by a debt collector for the debtor violated the FDCPA because they did not meaningfully disclose the callers’ identity. The facts were as follows. Chatman received two very similar voice messages on her cellular telephone in May 2013.… Read More
In Schweitzer v. Northland Group Inc., 2014 WL 5782991 (S.D.Fla. 2014), Judge Cohn granted summary judgment to a debt collector on a debtor’s TCPA claim. Citibank asserts that Schweitzer's TCPA claim against it fails because Schweitzer consented to be called in connection with the debt upon which Defendants tried to collect. DE 40–1 at 9–12. Schweitzer bases his TCPA claim… Read More
Oh, the irony. In Shamblin v. Obama for America, 2014 WL 5780458 (M.D.Fla. 2014), Judge Covington allowed a class action to proceed, and not be mooted by a Rule 68 offer, as described as follows: In her August 14, 2014, Second Amended Complaint, Shamblin contends that “despite the prohibition of robocalls to cell phones, and the FCC's reminder that such calls are… Read More
In Shehan v. Wells Fargo Bank N.A., --- F.Supp.3d ----, 2014 WL 5529365 (N.D.Ala. 2014), Judge England declined to stay a TCPA case under the Primary Jurisdiction Doctrine. The primary factors a court considers when determining whether to stay an action based on primary jurisdiction grounds are (1) whether the specialized knowledge of the FCC is needed to answer the… Read More
In Kight v. CashCall, Inc. 2014 WL 5573457 (2014), on remand from a prior appeal in the same case, the defendant successfully moved to decertify the plaintiff class that alleged eavesdropping on telephone calls by CashCall's supervisors in violation of Penal Code 632. The opinion on the earlier appeal established that an objective test is applied to determine whether a call… Read More
