Consumer Finance

In Jacobson v. Persolve, LLC, 2014 WL 4090809 (N.D.Cal. 2014), Judge Koh found an FDCPA class-action defendant’s Rule 68 offer to the class representative did not moot either the Action or the represenative’s ability to bring class claims. The Court agrees with Persolve that Plaintiff's Motion to Strike Persolve's Offer of Judgment is procedurally improper. Persolve's Offer of Judgment was… Read More

In Fonteno v. Wells Fargo Bank, N.A., --- Cal.Rptr.3d ----, 2014 WL 4058867 (Cal.App. 1 Dist. 2014), the California Court of Appeal held that a person engaging only in activities leading towards a foreclosure sale is not a “debt collector” under the FDCPA. Plaintiffs' “debt collector” contentions rest on their theory that “First American's principal business IS debt collection by… Read More

In Davidson v. Capital One Bank (USA), N.A., 2014 WL 4071891 (N.D.Ga. 2014), Judge Duffey held that an entity that acquires a portfolio with both current and defaulted debt is not subject to the FDCPA as to those loans in the portfolio that were in default at the time of the purchase. Judge Duffey held that 15 USC 1692a(6)’s application… Read More

In Russell v. Absolute Collection Services, Inc., --- F.3d ----, 2014 WL 3973792 (4th Cir. 2014), the Court of Appeals for the Fourth Circuit held that a debtor need not first dispute the debt before he can sue under 15 USC 1692e. The Fourth Circuit also held that a debt collector needs to follow up with the creditor if the… Read More

Another Judge Karlton decision. In Davis v. Midland Funding, LLC, 2014 WL 3889971 (E.D.Cal. 2014), Judge Karlton held that it was permissible to ignore the FDCPA’s requirement that a debt arise out of a consumer transaction in situations of identity theft because, well, debt collectors are bad. The issue presented herein is whether a debt collector that attempts to collect… Read More

In Birchmeier v. Caribbean Cruise Line, Inc., --- F.Supp.2d ----, 2014 WL 3907048 (N.D.Ill. 2014), Judge Kennelly held that a TCPA class was ascertainable, rejected the Defendant’s argument that, under Soppet, only the subscriber had standing and it could not be determined whether the subscriber answered the cellular telephone. Defendants appear to be making a two-part argument: first, the people… Read More

In Ranwick v. Texas Gila, LLC, 2014 WL 3891663 (D.Minn. 2014), Judge Kyle refused to follow the Mais decision out of Florida. Ranwick seeks to avoid the application of these Rulings by arguing they are erroneous and not binding on the Court. To the contrary, the Hobbs Act reserves to the courts of appeals the “exclusive jurisdiction to determine the… Read More

In Lucas v. Telemarketer Calling From (407) 476-5680, 2014 WL 3845893 (S.D.Ohio 2014), Judge Siegel stayed a TCPA telemarketing case to allow the FCC to rule on Plaintiff’s novel liability theory. It is essential to understand who the current Defendants are in this litigation and their alleged relationship to one another. The Accuardi Defendants consist of three corporate entities and… Read More

In de la Torre v. CashCall, Inc., --- F.Supp.2d ----, 2014 WL 3752796 (N.D.Cal. 2014), Judge James granted partial summary judgment to class-action Plaintiffs on their allegation that CashCall’s the loans violated the UCL because they were conditioned on the debtors were required to check a box indicating that they authorized CashCall to withdraw their scheduled loan payments from their… Read More

In Robin v. Miller and Steeno, P.C., 2014 WL 3734318 (E.D.Mo. 2014), Judge Limbaugh treated an oral Notice of Representation given during a collection call like a Miranda warning, requiring the collector to terminate the call once the Notice was given. Without the prior consent of the consumer given directly to the debt collector or the express permission of a… Read More

In Thompson-Young v. Wells Fargo Dealer Services, Inc., 2014 IL App (1st) 132479-U, 2014 WL 3726900 (Ill.App. 1 Dist. 2014), the Illinois Court of Appeal found no breach of the peace by the repossession agent for the automobile finance company. This is primarily because, again, even accepting as true all well-pled facts and reasonable inferences from the amended complaint, Wells… Read More

In Neptune v. Whetstone Partners, LLC, --- F.Supp.2d ----, 2014 WL 3734549 (S.D.Fla.,2014), the District Court found:  Upon consideration, the Court concludes that Plaintiff's Complaint includes sufficient allegations that support his claim that the calls were autodialed or the messages were prerecorded. Plaintiff alleges that Defendant made approximately forty-five (45) calls to Plaintiff's cellular telephone from November 2013 through April… Read More

In Salvati v. Deutsche Bank Nat. Trust Co., N.A., --- Fed.Appx. ----, 2014 WL 3719186 (3rd Cir. 2014), the Court of Appeals for the Third Circuit found that an FDCPA Plaintiff need not have actually paid the illegal fees in order to sue under the FDCPA. The District Court held that dismissal of Count IV was warranted because “Salvati has… Read More

In Fischer v. Rent-A-Center, Inc., 2014 WL 3729553 (E.D.Cal. 2014), Judge England ordered a TCPA and Rosenthal Act claim to Arbitration. Judge England found the TCPA claim within the scope of the Arbitration Agreement. Plaintiff opposes Defendant's Motion on the grounds that Defendant has not established that its repeated calls to Plaintiff were in any way related to the loan… Read More

In Smith v. Law Offices of Patenaude & Felix, A.P.C., 2014 WL 3695473 (S.D.Cal. 2014), Judge Hayes found that a debtor must plead by clear and convincing evidence that the debtor did not receive a debt validation letter from the debt collector. Congress enacted the FDCPA to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting… Read More

In GANAS v. Wells Fargo Bank, N.A., 2014 WL 3400536 (Bkrtcy.E.D.Cal.), the Bankruptcy Court for the Eastern District of California was confronted with the question of whether a borrower could bring a Rosenthal Act claim against a mortgage servicer for filing an allegedly incorrect proof of claim in the borrower’s bankruptcy proceeding.  The Court first grappled with the question of… Read More

In McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014), the Court of Appeals for the Seventh Circuit found that a debt buyers’ collection letter purporting to collect on a time-barred debt that used the term “settle” falsely threatened litigation. Relying in part on the district court opinion in Rice v. Midland Credit Mgmt., Inc., 933 F.Supp.2d 1040… Read More

In Martin v. Pacific Parking Systems Inc., --- Fed.Appx. ----, 2014 WL 3686135 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit affirmed a denial of class certification in a FACTA—credit card digits truncation case that a class could not be certified because it could not be determined whether the cards used were consumer or business cards. The… Read More

In Nuvision Federal Credit Union v. Beliciu, 2014 WL 3670006 (Cal.App. 2 Dist. 2014), the Court of Appeal for the Second Circuit in an unpublished decision affirmed a trial court’s finding that a buyer of a car at a lien sale was not a bona fide purchaser because the buyer knew of the secured party’s lien and conspired to void… Read More

In Bates v. Dollar Loan Center, LLC, 2014 WL 3516260 (D.Nev. 2014), Judge Dawson found that the Defendant’s argument that manual calls were exempt from the TCPA bordered on Rule 11 sanctions. The Court found that the TCPA’s definition of ATDS focuses on “capacity”, not “use”, and all that defendant need have done is dump the numbers into the dialer… Read More