Consumer Finance

In Hartley-Culp v. Green Tree Servicing, LLC, --- F.Supp.3d ----, 2014 WL 5088230 (M.D.Pa. 2014), Judge Munley held that the TCPA imposed vicarious liability on Fannie Mae for the alleged TCPA violations of its servicer. The facts were as follows: Beginning on August 29, 2013, plaintiff received at least twenty-six (26) phone calls from Defendant Resolve Solution Services Corporation (hereinafter… Read More

Familiar scene: a disgruntled auto purchaser visits counsel to complain about having been defrauded by a dealer. After exiting the dealership, the dealer couldn’t place the customer’s retail installment contract and brought him back for a re-write of the deal on less favorable terms. To boot, the car broke down on the way home from the dealership. Counsel fly-specks the… Read More

In February 2014, Severson & Werson achieved a major victory on behalf of a shared vehicle start-up in Seattle, Washington. The court dismissed a nationwide TCPA class action in favor of Severson’s client, finding that the contours of “express consent” were broad enough to encompass instances where a customer received a text message after providing a cellular number as part… Read More

In the last five years, we have seen an unprecedented spike in lawsuits filed by individual borrowers against their lenders and loan servicers. These lawsuits were brought primarily to delay the foreclosure process, mostly lacking in merit. But because civil litigation is a slow process, simply filing suit was often enough to buy the delinquent borrower an extra three to… Read More

Courts differ as to whether the $500,000 statutory cap on class action recovery under the federal Fair Debt Collection Practices Act (“FDCPA”) (and its California counterpart, the “Rosenthal Act”) renders class certification the superior method for adjudicating mass unfair debt collection actions. The FDCPA, by itself and as incorporated by the Rosenthal Act, caps class action recovery at “the lesser… Read More

Preparing and filing a proof of claim in a bankruptcy case used to be a fairly simple process. Today, especially for mortgage servicers, proofs of claims are one of the most difficult (and tedious) aspects of servicing a mortgage loan where the borrower has filed for Chapter 13 bankruptcy relief. Since the addition of Bankruptcy Rule 3002.1 in 2011, nearly… Read More

The Private Attorneys General Act (“PAGA”) allows an aggrieved employee to bring a lawsuit to recover civil penalties against an employer personally or on behalf of other current and former employees for violations of the California Labor Code. Under PAGA, aggrieved employees can virtually sue for any alleged violation of the Labor Code. An employee suing under PAGA does so… Read More

The financial services industry knows well that California’s Unfair Competition Law (“UCL”) has an expansive scope, applying to any conduct that might be called a business practice and permitting courts to evaluate whether such conduct is “unfair” under subjective and uncertain standards. But the California Supreme Court’s recent decision in Loeffler v. Target Corp., 58 Cal. 4th 1081 (2014), reiterates… Read More

It’s an all too familiar story. Congress passes a consumer protection statute to remedy a perceived abuse–junk faxes and unwanted cell phone solicitations in the case of the Telephone Consumer Protection Act–with a per violation penalty (an automatic $500 per call and up to $1,500 for intentional violations). The class action bar looks at it as the next mother lode… Read More

In Istre v. Miramed Revenue Group, LLC, 2014 WL 4988201 (E.D.Mo. 2014), Judge Barton held that when a debtor tells the debt collector that she is represented by counsel, the debt collector has to stop the call. The facts were as follows: According to plaintiff's factual allegations, the following occurred. Plaintiff, a “consumer” for pur-poses of the FDCPA, resides in… Read More

In Gold v. Midland Credit Management, Inc., --- F.Supp.3d ----, 2014 WL 5026270 (N.D.Cal. 2014), Judge Freeman rejected the argument that factual questions regarding whether financial transactions were primarily for consumer or business purposes could defeat class certification in an FDCPA case. Plaintiff owes a financial obligation, “namely a consumer credit account issued by HSBC Bank Nevada, N.A,” that was… Read More

In Hallmark v. Cohen & Slamowitz, Midland Funding LLC, --- F.R.D. ----, 2014 WL 5017859 (W.D.N.Y. 2014), Judge Froschio did not require an FDCPA class action defendant to prepare audited financial statements where there were none, but, mere production of financial statements did not preclude plaintiff's inquiry into defendants raw data to allow Plaintiff to challenge defendant's valuation of its own business.… Read More

In Decker v. Advanced Call Center Technologies, LLC, 2014 WL 4976771 (W.D.Mich. 2014), Judge Quist entitled a Debt Collector accused of "Flat Rating" to enforce an Arbitration Clause in a Credit Card Agreement. The Court finds that there was a valid agreement to arbitrate. The Bank mailed Decker a copy of the Agreement with her credit card, and she accepted its terms by activating… Read More

In Nieto v. Allied Interstate, Inc., 2014 WL 4980376 (D.Md. 2014), Judge Blake granted summary judgment to a TCPA defendant on the basis that no ATDS was used to dial the call. No genuine dispute exists as to whether Allied used an ATDS in calling Nieto. In support of its assertion that it did not use an ATDS, Allied presents an affidavit… Read More

In Bank v. Independence Energy Group LLC, 2014 WL 4954618 (E.D.N.Y. 2014), Judge  Gleeson held that a Plaintiff's holding out his residential telephone line as a "business line" might disqualify it from protection under the TCPA.  Defendants had placed a call to Bank's residential telephone line using an artificial or prerecorded voice that advertised electricity-related services provided by the Defendants. The TCPA,… Read More

In Doucette v. GE Capital Retail Bank, 2014 WL 4955675 (D.N.H. 2014), Judge McCafferty dismissed a TCPA claim on the basis that debt collection calls to a residential line were not protected by the TCPA. GE issued Mrs. Doucette a credit card. She accumulated debt on the card, and then fell behind on her payments. In June of 2013, she “began to… Read More

In a case closely watched by corporations and the class action bar, on May 29, 2014, the California Supreme Court issued its decision in Duran v. U.S. Bank, N.A., 59 Cal. 4th 1 (2014). Although it was an employment law dispute, Duran has implications for class actions in California state court (and perhaps in federal court as well), including those… Read More

In Lynn v. Monarch Recovery Management, Inc.--- Fed.Appx. ----, 2014 WL 4922451 (4th Cir. 2014), the 4th Circuit Court of Appeals found that a debt collector could not rely on the TCPA's land-line/EBR exemption where the debtor was charged for the call. The TCPA specifically prohibits “mak[ing] any call ... using any [ATDS] or an artificial or prerecorded voice ... to any… Read More

In Inetianbor v. CashCall, Inc., --- F.3d ----, 2014 WL 4922225 (11th Cir. 2014), the Court of Appeals for the 11th Circuit found that an arbitration clause requiring a consumer to submit his claim to an authorized tribal arbitrator could not be enforced when the Tribe refused to authorize a tribal leader to arbitrate. To decide whether the forum selection… Read More

In De Armas v. Financial Corp. of America, --- F.Supp.3d ----, 2014 WL 4922373 (S.D.Fla. 2014), Judge Martinez found that a debt collector did not violate the FDCPA by failing to give validation notices in Spanish, or when the debt collector included instructions in Spanish for Spanish speakers to call the debt collector.  In Ehrich v. I.C. Sys., Inc., 681 F.Supp.2d 265 (E.D.N.Y.2010), the District… Read More