Consumer Finance

On July 21st, an ex parte was filed with the FCC asking it to interpret the TCPA consistent with Utility Air Regulatory Group v. Environmental Protection Agency, 2014 U.S. LEXIS 4377 (June 23, 2014), where the United States Supreme Court Supreme Court decision supporting the position advanced by Wells Fargo that the term “called party” under the Telephone Consumer Protection Act (TCPA)… Read More

In Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, --- F.3d ----, 2014 WL 3440174 (6th Cir. 2014), the Court of Appeals for the 6th Circuit purported to set a “baseline” of what the FDCPA requires as far as debt validation in response to a consumer dispute, but said that what validation is required depends on the circumstances. These cases… Read More

We previously reported on District Court's decision in Nigro v. Mercantile Adjustment Bureau here (http://www.calautofinance.com/?p=3940).  The Plaintiff appealed the District Court's granting summary judgment to the TCPA Defendant, and the Second Circuit Court of Appeals asked for comment from the FCC.  The FCC's response is reflected here. Read More

In Crawford v. Franklin Credit Management Corp., --- F.3d ----, 2014 WL 3377175 (2d Cir. 2014), the Court of Appeals for the Second Circuit held that that a Plaintiff who had filed Chapter 13 bankruptcy lost standing when she filed the Petition, but regained standing when she dismissed the Petition. We conclude that Crawford has standing to pursue her present claims because her… Read More

In Crawford v. LVNV Funding, LLC, --- F.3d ----, 2014 WL 3361226 (11th Cir. 2014), when the 11th Circuit sets it put this way, you pretty much know how its coming down. A deluge has swept through U.S. bankruptcy courts of late. Consumer debt buyers—armed with hundreds of delinquent accounts purchased from creditors—are filing proofs of claim on debts deemed unenforceable under… Read More

In Molnar v. NCO Financial Systems, Inc., 2014 WL 3371414 (S.D.Cal. 2014), Magistrate Judge Burkhardt allowed subpoenas to go forward issued by a TCPA defendant to the class Plaintiff's creditors and telephone carriers. The parties' dispute concerns defendant's requests for eight categories of documents from plaintiffs' creditors.FN1 The documents sought are to support defendant NCO's defense that it called plaintiffs to collect… Read More

In Pacleb v. Cops Monitoring, 2014 WL 3101426 (C.D.Cal. 2014), Judge Snyder denied a TCPA Defendant’s Motion to Dismiss, following Soppett. On February 24, 2014, plaintiff Florencio Pacleb filed this putative class action against defendants Cops Monitoring and Does 1 through 10. The operative first amended complaint (“FAC”) asserts claims for: (1) negligent violations of the Telephone Consumer Protection Act… Read More

In Kolinek v. Walgreen Co., 2014 WL 3056813 (N.D.Ill. 2014), Judge Kennelly granted Plaintiff’s Motion to Reconsider the Court’s previous dismissal of Plaintiff’s TCPA claim.  We previously reported on this case here:  http://www.calautofinance.com/?p=4653 . Walgreens moved to dismiss. It argued that Kolinek's complaint established that he had given “prior express consent” for the call within the meaning of the TCPA, and… Read More

In Sartori v. Susan C. Little & Associates, P.A.,--- Fed.Appx. ----, 2014 WL 3302588 (10th Cir. 2014), the Tenth Circuit Court of Appeals – in an unpublished case involving a pro per Plaintiff -- held that a TCPA defendant need not show either that consent was obtained in writing or that the consumer had to consent to be autodialed. Sartori… Read More

In Cabrera v. Government Employees Ins. Co., 2014 WL 2999206 (S.D.Fla. 2014), Magistrate Judge Seltzer tailored a discovery order in a TCPA class action to the revised class definition proposed during the discovery Motion to Compel proceedings. Judge Seltzer made numerous rulings granting and denying discovery, some of which are highlighted below. Request Nos. 5,FN9 33, and 34 seek production… Read More

In In re Trujillo, 2014 WL 3051319 (Bkrtcy.D.N.M. 2014), Judge Jacobvitz found that a debtor’s giving an RV to a third party in derogation of the lender’s rights did not constitute willful misconduct so as to render the debt non-dischargeable because the debtor did not profit from the arrangement. Mountain America correctly points out that Mr. Trujillo violated the Loan… Read More

In Makreas v. Moore Law Group, A.P.C., --- Fed.Appx. ----, 2014 WL 2979018 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit held that a Plaintiff failed to demonstrate that a creditor was vicariously liable under the FDPCA/Rosenthal Act or that the UCL was a proper vehicle to obtain relief under those statutes. The district court properly dismissed… Read More

In Thomas v. Taco Bell Corp., --- Fed.Appx. ----, 2014 WL 2959160 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit held that Taco Bell could not be held vicariously liable for the TCPA violations of entities it hired to send text messages. Indeed, in a recent declaratory ruling, the FCC expressly agreed with the district judge in… Read More

Two recent California District Court decisions suggest the propriety and effect of pursuing the third party who provided the cellular telephone number in an application that turned out to be subscribed to by another. In Webb v. Healthcare Revenue Recovery Group, LLC, 2014 WL 2967559 (N.D.Cal. 2014), Judge Donato permitted a TCPA defendant to file a third party claim against… Read More

In De Los Santos v. Millward Brown, Inc., 2014 WL 2938605 (S.D.Fla. 2014), Judge Marra found that a TCPA Plaintiff had standing to pursue a TCPA claim despite the fact that the Plaintiff was not charged for the call. Defendant moves to dismiss Plaintiff's complaint for lack of standing, arguing that the TCPA requires a plaintiff to be charged for… Read More

In Hill v. Asset Acceptance, LLC, 2014 WL 3014945 (S.D.Cal. 2014), Magistrate Judge Major granted in part and denied in part Rosenthal Act discovery in a class action, some rulings for which are highlighted below. The facts were as follows: Plaintiff seeks actual damages, statutory damages, attorneys fees, and costs for the alleged violations. Id. at 9. The alleged violations… Read More

In Penn v. NRA Group, LLC, 2014 WL 2986787 (D.Md. 2014), Judge Bredar granted summary judgment to a debt collector on a Plaintiff’s TCPA claim, stating that the customer’s providing his cellular telephone number to his doctor was the same as providing it to the doctor’s collector once the Plaintiff defaulted on the debt. The undisputed facts show that Penn's… Read More

In Taylor v. Universal Auto Group I, Inc., 2014 WL 2987395 (W.D.Wash. 2014), Judge Strombom rejected the argument that the TCPA requires the Plaintiff to have incurred a cost for the call, but agreed that Plaintiff’s providing his cellular telephone number to a predecessor business constituted consent to be called by the successor business. Tacoma Dodge Chrysler Jeep (Tacoma Dodge)… Read More

In Warnick v. Dish Network LLC, 2014 WL 2922660 (D.Colo. 2014), Judge Daniel refused to certify a TCPA class against DISH Network as documented in DISH’s “TCPA Tracker” database. Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded “robocalls” received from Defendant DISH Network LLC [“DISH”] on his cellular telephone without his prior express consent.… Read More

In Morse v. Allied Interstate, LLC, 2014 WL 2916480 (M.D.Pa. 2014), Judge Nealon denied a Motion to Stay a TCPA under the Primary Jurisdiction Doctrine because the matters were not appropriate for submission to the FCC. Defendant requests this matter be placed on hold because the allegations of the complaint turn on two issues currently pending before the Federal Communications… Read More