Consumer Finance

In Stemple v. QC Holdings, Inc., 2014 U.S. Dist. LEXIS 125313 (S.D.Cal. 2014), Judge Bashant certified a TCPA Class comprised of "All persons whose 10-digit cellular telephone numbers with a California area code were listed by an account holder in the Employment and/or Contacts fields of a California customer loan application produced to [Defendant], which were called by [Defendant] using an [ATDS]… Read More

In Olney v. Job.com, 2014 WL 4629062 (E.D.Cal. 2014), the Plaintiff filed a TCPA class action based on calls he received after signing up for Defendant's resume service.  The Plaintiff and Defendant entered into a Discovery Stipulation allowing the parties to designate certain information as "Confidential".  The Defendant produced, and marked confidential, three recordings of telephone conversations with the Plaintiff.  As a… Read More

The Consumer Financial Protection Bureau (CFPB) released its larger participant rule for nonbank vehicle finance companies yesterday before a scheduled field hearing in Indianapolis.  See CFPB Larger Participant Supervisor Highlights; CFPB Larger Participante Proposed Rule; and CFPB Larger Participant Rule Proxy Information. The CFPB defines “larger participants” as companies making, acquiring, or refinancing 10,000 or more loans or leases in a… Read More

In Raceway Ford Cases, --- Cal.Rptr.3d ----, 2014 WL 4589808 (Cal.App. 4 Dist. 2014), the Court of Appeal reversed the trial court's finding in favor of defendant car dealer as to backdating claims, but remanded to the trial court to determine whether the action could still be maintained as a class action.  The Court of Appeal's decision is important because of its… Read More

In Zyburo v. NCSPlus, Inc., --- F.Supp.3d ----, 2014 WL 4536932 (S.D.N.Y. 2014), Judge Rakoff granted class certification in a TCPA class action. This is a putative class action brought under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C § 227 et seq., which prohibits certain kinds of telephone solicitations without the recipient's consent. Plaintiff alleges that the defendant repeatedly… Read More

In CarMax Auto Superstores California, LLC v. Superior Court, 2014 WL 4533445 (Cal.App. 4 Dist. 2014), the Court of Appeal in an unpublished decision took the extraordinary step of issuing a Peremptory Writ of Mandate directing the trial court to enter summary judgment to a Car Dealer on a consumer’s CLRA claim on the basis that the Car Dealer had… Read More

In Peterson v. Mazda Motor of America, Inc., --- F.Supp.3d ----, 2014 WL 4494872 (C.D.Cal. 2014), Judge Carter applied a narrow intepretation of the California Court of Appeal’s Mexia decision that had expanded the time during which a consumer can bring a breach of implied warranty claim. Mazda argues that Ms. Peterson's Song– Beverly claims fails because the allegation that… Read More

In Leyse v. Bank of America, 2014 WL 4426325, (D.N.J. 2014), here, Judge Wiggington found that a roommate who answered a call intended for the other roommate who was the defendant's debtor lacked standing to sue under the TCPA. In line with that reasoning, Judge Koeltl found that “while the prerecorded message did not address Dutriaux by name and it was Leyse who… Read More

In Pollard v. Law Office of Mandy L. Spaulding--- F.3d ----, 2014 WL 4402213 (1st Cir. 2014), the 1st Circuit Court of Appeals found that an attorneys' debt collection letter contained threats that overshadowed a consumer's 30-day right to dispute under the FDCPA. On October 23, 2012, the defendant sent the plaintiff a collection letter (a copy of which appears… Read More

In Harley-Davidson Credit Corp. v. Galvin, 2014 WL 4384632 (D.N.H. 2014), Judge McCafferty rejected the debtor's arguments that Harley-Davidson did not fetch enough money for the aircraft that it repossessed from the debtor, and found that the debtor owed the balance. At its core, Galvin's argument is that SAS did not receive as much as it should have for the Aircraft, and… Read More

In Porter v. Dollar Financial Group, Inc., 2014 WL 4368892 (E.D.Cal. 2014), Judge Shubb found the allegations of a TCPA claim to be outside of an Arbitration Agreement because the complaint alleged that the calls placed did not relate to the subject of the contract that contained the arbitration clause. On December 29, 2011, plaintiff signed a Deferred Deposit Loan Note in… Read More

In Benson v. Energy Solutions, Inc., 2014 WL 4311755 (D.Ariz. 2014), Judge Anderson found that an FDCPA claim premised on a debt collector’s obtaining a default judgment and employing garnishment procedures based thereon was barred by the Rooker-Feldman doctrine. “Determining what constitutes a forbidden de facto appeal, however, has sometimes proven difficult for the lower courts.” Kougasian, 359 F.3d at… Read More

In Douglass v. Convergent Outsourcing (3d Cir., Aug. 28, 2014, 13-3588) 2014 WL 4235570, the Third Circuit Court of Appeals found that a debt collector's disclosure of debtor's account number on envelope violated the FDCPA.  On May 16, 2011, Plaintiff Courtney Douglass received a debt collection letter from Convergent Outsourcing (“Convergent”) regarding the collection of a debt that Douglass allegedly… Read More

In Holcombe v. Credit Protection Ass'n, LP, --- F.Supp.2d ----, 2014 WL 4252277 (M.D.Ga. 2014), Judge Royal refused to stay a TCPA case based on the primary jurisdiction of the FCC. Here, Defendant admits in its Answer that it uses a predictive dialer but alleges that the equipment lacks the “present capacity” to store or produce random or sequential numbers. Defendant… Read More

In Lambert v. Buth–Na–Bodhaige, Inc., 2014 WL 4187250 (E.D.Cal. 2014), Chief Judge England stayed a TCPA case under the Primary Jurisdiction Doctrine. However, as demonstrated by the Coalition of Mobile Engagement Providers' (“CMEP”) petition now pending before the FCC,  ECF No. 12–2, Exh. 5), “express consent” provided by a customer prior to October 16, 2013, could obviate the need to… Read More

In Lee v. loanDepot.com, LLC, 2014 WL 4145504 (D.Kan. 2014), Judge Humphreys stayed a TCPA case under the Primary Jurisdiction Doctrine while the FCC addresses what an ATDS is. Defendant contends that three petitions currently pending before the FCC specifically address the interpretation of “capacity” as stated in the TCPA. In all three petitions, the filing parties (Communication Innovators, YouMail,… Read More

In Calhoun v. Certegy Check Services, Inc., 2014 WL 4146886 (M.D.Fla. 2014), Judge Whittemore found that a Plaintiff stated a FCRA claim against a check services company for failing to report an account as ‘disputed’ during its reinvestigation. Plaintiff brought this action alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., the Fair Debt… Read More

In Hill v. Homeward Residential, Inc., 2014 WL 4105580 (S.D.Ohio 2014), Judge Frost found that a Plaintiff’s claim that he did not remember calling Defendant, combined with Defendant’s lack of evidence of how it obtained Plaintiff’s number, was sufficient to overcome Defendant’s summary judgment on the basis that Plaintiff had given “prior express consent” to be called on his cellular… Read More

In Hazel's Cup & Saucer, LLC v. Around The Globe Travel, Inc., --- N.E.3d ----, 2014 WL 4106870 (Mass.App.Ct. 2014), the Massachusetts Court of Appeal reversed a trial court's denial of class certification, when the trial court denied class cert because the potential massive exposure under the TCPA if the class was certified outweighed the harm caused. This case presents… Read More

In Patrick v. Pyod, LLC,--- F.Supp.2d ----, 2014 WL 4100414 (S.D.Ind.. 2014), Judge Young held that filing a proof of claim in bankruptcy court on time-barred debt violates the FDCPA. The Eleventh Circuit recently decided a case nearly identical to the one before the court. See Crawfrod v. LVNV Funding, LLC, No. 13–12389, 2014 WL 3361226 (11th Cir. Jul. 10,… Read More