Consumer Finance

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

In Libby v. Alessi & Koenig, LLC, 2014 WL 5506794 (D.Nev. 2014), Judge Mahan granted summary judgment to a debt collector on the “bona fide error” defense. On December 27, 2012, defendant sent plaintiff a letter advising that the defendant would be taking over the foreclosure process. (See doc. # 10). The December 27, 2012 letter contained language warning plaintiff… Read More

In Aitken v. Debt Management Partners, LLC, 2014 WL 5469876 (C.D.Ill. 2014), Magistrate Judge Hawley discussed the ‘sliding-scale’ applicable to determining recovery of emotional distress, and found that Plaintiff had created a triable issue of fact to defeat summary judgment. There was much else to this opinion on the parties’ motions and positions about various purported violations of the FDCPA, but… Read More

In Bates v. Dollar Loan Center, LLC, 2014 WL 5469221 (D.Nev. 2014), Judge Dawson scheduled an evidentiary hearing on the question of whether a TCPA class action could be certified for a class consisting of calls placed to borrowers’ references listed by the borrower in the loan application. Defendants argue that the class is overbroad because liability requires both a… Read More

In Meyer v. Diversified Consultants, Inc., 2014 WL 5471114 (M.D.Fla. 2014), Judge Toomey found that a “regular user” was the “called party” under Osorio/Breslow. In the Motion to Dismiss, Defendant argues that “[b]ecause plaintiff was not the subscriber of the telephone, she was not the ‘called party’ under the TCPA and Count I of the class action complaint must be… Read More

In Palm Beach Golf Center–Boca, Inc. v. Sarris, --- F.3d ----, 2014 WL 5471916 (11th Cir. 2014), the Court of Appeals for the Eleventh Circuit held that the TCPA is a “bounty” statute that affords Article III standing in federal courts even without actual injury. The TCPA provides standing under this theory because it is a “bounty” statute, specifically providing… Read More

In Johnston v. USAA Federal Savings Bank, 2014 WL 5439965 (D.Colo. 2014), Judge Babcock found that a TCPA Plaintiff could revoke prior express consent, but that unspecified oral protestations were unsufficient to do so. Written notice setting forth the revocation and the cellular telephone number at issue, however, would be effective to revoke consent. Because Plaintiff expressly agreed that Defendant… Read More

In Marks v. Crunch San Diego, LLC, --- F.Supp.3d ----, 2014 WL 5422976 (S.D.Cal. 2014), Judge Bashant found that defendants' text message system was not an ATDS within the meaning of the TCPA. Defendant Crunch San Diego, LLC (“Crunch”) operates gyms in San Diego, California, as well as in several other states. Compl. ¶ 3, ECF 1. Plaintiff Jordan Marks entered into… Read More

In Stratton v. Portfolio Recovery Associates, LLC, --- F.3d ----, 2014 WL 5394517 (6th Cir. 2014), the Court of Appeals for the 6th Circuit found that attempts to collect pre-judgment interest before a judgment was obtained violated the FDCPA due to the intersection of the state’s usury statute with its pre-judgment interest statute. This case involves the intersection of the… Read More

In Barnes v. Bakersfield Dodge, Inc., 2014 WL 5392963 (Cal.App. 5 Dist. 2014), the Court of Appeal found in an unpublished decision that a previous order finding that a car dealer had waived its right to arbitrate a class-action plaintiffs’ claim did not mean that the car dealer had waived its right to arbitrate the claims of members of the… Read More

In Cokeley v. Midland Credit Management, Inc., 2014 WL 5341919 (D.Kan. 2014), Judge Lungstrum granted summary judgment to a debt collector on an FDCPA claim grounded in harassment. The Court first concludes that defendant cannot have violated Section 1692d(5) because it did not call plaintiff “repeatedly or continuously.” Defendant called plaintiff for the first time on September 7, 2013, and… Read More

We previously reported that Judge Maria Elena James denied CashCall’s summary judgment motion on the issue of whether CashCall’s loans were unconscionable. (http://www.calautofinance.com/?p=5208) CashCall filed a Motion for Reconsideration, arguing that to deny summary judgment on the Unconscionability Claim was incorrect because the UCL cannot be used as a basis for Plaintiffs' Unconscionability Claim because ruling on that claim would… Read More

In Miller v. NRA Group, LLC, 2014 WL 5343529 (W.D.Mich. 2014), Judge Carmody granted summary judgment to a debt collector on a Plaintiff’s TCPA claim due to the consent the Plaintiff had provided to the Creditor. Pursuant to the Telephone Consumer Protection Act (TCPA), it is unlawful “to make any call (other than a call made for emergency purposes or… Read More

In In re Banks, --- B.R. ----, 2014 WL 5320539 (Bkrtcy.M.D.Ga. 2014), Judge Carter held that a finance company who finances a vehicle for a Chapter 13 debtor who acquires the vehicle post-petition and post-confirmation, but pre-discharge, violates the automatic stay by repossessing the vehicle on default. The Debtor filed a Chapter 13 Voluntary Petition on August 5, 2013. On… Read More

In Jordan v. Nationstar Mortgage LLC, 2014 WL 5359000 (N.D.Cal. 2014), Judge Orrick lifted a previous stay of a TCPA case under the Primary Jurisdiction Doctrine. On September 4, 2014, I issued an order postponing the decision on Nationstar's motion and staying the case until October 15, 2014. Dkt. No. 48. I did so to allow time for the FCC to respond… Read More

Please see the Firm's Consumer Finance Report (Fall 2014) at www.severson-newsletter.com Topics include:     Read More

In Luna v. Shac, LLC dba Sapphire Gentlemen's Club,  2014 WL 5324291 (N.D.Cal. 2014), Judge Lloyd denied a Motion to Dismiss a TCPA claim. The facts were as follows. Plaintiff brings this proposed class action against Shac, Club Texting, and CallFire, alleging violations of the TCPA. In January 2014, Plaintiff received an unsolicited text message on his cellular telephone from… Read More

In Moore v. Dish Network L.L.C., 2014 WL 5305960 (N.D.W.Va. 2014), Judge Groh granted summary judgment to a TCPA “wrong party” Plaintiff. The facts were as follows. On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone… Read More

In Durocher v. Westborn Chrysler Jeep Inc., 2014 WL 5162384 (Mich.App. 2014), the Michigan Court of Appeal found in an unpublished case that a Plaintiff could state a case through trial for violation of state law by concealing negative equity in the purchase price of a vehicle notwithstanding representations to the contrary. Durocher testified that Westborn represented that he would… Read More

In Nigro v. Mercantile Adjustment Bureau, the Court of Appeals for the Second Circuit reversed the District Court's grant of summary judgment on a TCPA claim.  We previously reported on the FCC’s submission to the Second Circuit here (http://www.calautofinance.com/?p=5172) and on the District Court’s Opinion here (http://www.calautofinance.com/?p=3940)   The facts were as follows: Nigro asserts that, while attempting to collect his… Read More