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District Court (Nev.) Grants MSJ to Defendant on FDCPA Claim Based on Bona Fide Error Defense

by Scott J. Hyman |

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

District Court (Ill.) Finds Plaintiff Creates Triable Issue of Fact on Recoverable Emotional Distress Damages under the FDCPA When the Conduct Alleged Was So Inherently Degrading That It Would Be Reasonable to Infer that a Person Would Suffer Emotional Distress from the Defendant’s Actions

by Scott J. Hyman |

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

District Court (Nev.) Schedules Evidentiary Hearing on Whether TCPA Class Can Be Certified for Class of Consisting of References Listed in Borrowers’ Credit Application Who Were Called By an ATDS

by Scott J. Hyman |

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

District Court (Fla.) Says Breslow/Osorio’s TCPA Holding that “Called Party” Means “Subscriber” Actually Meant “Regular User”

by Scott J. Hyman |

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

11th Cir. Says TCPA is a “Bounty Statute” That Affords Article III Standing without Actual Injury

by Scott J. Hyman |

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

District Court (Colo.) Says that Unspecified Oral Protestations Were Insufficient to Revoke TCPA Consent, but Written Notice Revoking Consent and Providing Cellular Telephone Number at Issue Would Be

by Scott J. Hyman |

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

District Court (Cal.) Says FCC Exceeded its Jurisdiction in Defining ATDS under TCPA; Grants MSJ to Defendant on the Basis that its Dialer Was Not an ATDS

by Scott J. Hyman |

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

What’s Up in Kentucky? 6th Cir. and District Court (Ky.) Address How FDCPA Regulates Debt Buyers’ Collection of Pre-Judgment Interest and Post-Charge-Off Interest

by Scott J. Hyman |

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

Court of Appeal (Cal.) Says Car Dealer Who Waived Right to Arbitrate Class Action Plaintiff’s Case Did Not Waive Right to Arbitrate Putative Classmembers’ Claims; Denial of Class Cert. Affirmed

by Scott J. Hyman |

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

District Court (Kan.) Grants MSJ to Debt Collector on FDCPA Harassment Claims; Calls After Debtor Said She Did Not Have Money to Pay is Not Conclusive Evidence of Harassment

by Scott J. Hyman |

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

District Court (Cal.) Reverses Itself in CashCall Unconscionability Claim; Says UCL Can Not Be Used to Regulate Economic Policy

by Scott J. Hyman |

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

District Court (Mich.) Grants MSJ to Debt Collector on TCPA Claim; Says Consent Given to Creditor Counts as Consent Given to Debt Collector

by Scott J. Hyman |

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

District Court (Ga.) Finds Creditor Who Finances Existing Ch. 13 Debtor’ s Purchase of Vehicle Violates Automatic Stay By Repossessing the Vehicle on Default

by Scott J. Hyman |

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

District Court (Cal.) Lifts “Primary Jurisdiction” Stay in TCPA Case After FCC Says They’ll Get Around to It When They Get Around to It

by Scott J. Hyman |

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

District Court (Cal.) Denies Alleged Common Carrier’s Motion to Dismiss TCPA Claim; Follows Couser’s Lead Denying Primary Jurisdiction Argument without More Discovery

by Scott J. Hyman |

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

District Court (W.Va.) Holds that “Wrong Party” Holder of “Life-Line” Phone Can Bring TCPA Claim Even if He Should Not Have Been Entitled to Such a Phone

by Scott J. Hyman |

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

Court of Appeals (Mich.) Finds that Car Buyer Stated a Claim against a Dealer for Including Negative Equity in Purchase Price of Vehicle Nothwithstanding Representations to the Contrary

by Scott J. Hyman |

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

2d Cir. Finds Person Who Called in to Utility for Dead Relative Did Not Consent to Receive Auto-Dialed Calls on His Cell Phone Under the TCPA

by Scott J. Hyman |

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

District Court (Wash.) Declines to Stay TCPA Case under Primary Jurisdiction Doctrine

by Scott J. Hyman |

In Knapp–Ellis v. Stellar Recovery, Inc., 2014 WL 5023632 (W.D.Wash. 2014), Judge Martinez declined to stay a TCPA case under the Primary Jurisdiction Doctrine. Upon review of the relevant factors, the Court declines to apply the doctrine of primary jurisdiction at this time. First, the Court is not persuaded that the issues involved in this matter are ones outside the… Read More

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