Consumer Finance

In Buchholz v. Valarity, LLC, 2014 WL 2882504 (E.D.Mo. 2014), Judge Adelman denied summary judgment to the parties in a TCPA/FDCPA telephonic harassment case. The District Court found that Plaintiff’s allegation that he did not know whether he provided his cellular telephone number to the Defendant was sufficient to defeat summary judgment. Defendant first argues that no genuine issue of… Read More

In Hudson v. Sharp Healthcare, 2014 WL 2892290 (S.D.Cal. 2014), Judge Anello granted summary judgment to a TCPA defendant, finding that Plaintiff had consented to be called on her cellular telephone and had not revoked consent. On September 24, 2012, Plaintiff and her minor child, S.H., went to Sharp Grossmont Hospital to receive treatment for possible food poisoning. Upon admission,… Read More

In McLaughlin v. Phelan Hallinan & Schmieg, LLP, --- F.3d ----, 2014 WL 2883891 (3rd Cir. 2014), the Court of Appeals for the Third Circuit held that an FDCPA Plaintiff need not demand debt validation as a pre-requisite to filing an FDCPA action. PHS argues that it nonetheless cannot incur “liability as a matter of law where it has complied… Read More

In Higgingbotham v. Hollins, 2014 WL 2865730 (D.Kan. 2014), Judge James stayed another TCPA case based on the primary jurisdiction of the FCC. Plaintiff alleges that Defendant contacted her on her cellular telephone, using a prerecorded voice message, in an attempt to collect on an alleged debt from someone other than Plaintiff.  Plaintiff further alleges that she did not consent… Read More

In Tourgeman v. Collins Fin. Serv., Inc. (9th Cir. 2014) 2014 DAR 8247, here, the Court of Appeals for the Ninth Circuit held, following Robins v. Spokeo, Inc. (9th Cir. 2014) 742 F.3d 409 and other similar cases, that, in general, a plaintiff may establish Article III standing by showing only that the defendant has violated some right or protection granted the… Read More

In Brown v. Mandarich Law Group, LLP, 2014 WL 2860631 (N.D.Cal. 2014), Judge Corley allowed a creditor to offset an FDCPA case against a previously obtained state court judgment on the debt itself. The facts were as follows: On an unknown date, Plaintiff incurred a financial obligation in the form of a consumer credit account with MBNA America N.A. (Dkt.… Read More

In NLRB v. Canning, the U.S. Supreme Court struck down three of President Obama’s recess appointments to the National Labor Relations Board (NLRB) in a unanimous 9-0 decision. Why does that matter here?  In the same set of appointments, President Obama appointed Richard Cordray to be the Director of the Consumer Financial Protection Bureau.   Read More

In Altman v. J.C. Christensen & Associates, Inc., 2014 WL 2612124 (E.D.N.Y. 2014), Judge Ross refused find a deceptive statement for a settlement offer collection letter mailed during tax season. In Landes v. Cavalry Portfolio Services, LLC, the District Court for the Eastern District of Virginia cogently addressed nearly the same circumstances as are presented here. In Landes, the defendant… Read More

In Johnson v. Stephens & Michaels Associates, Inc., 2014 WL 2506253 (N.D.Ohio 2014), Judge Gaughan found no violation of the FDCPA where a  message was left on an answering machine but no third party heard it. For the following reasons, the Court agrees with defendant that summary judgment must be granted.  ¶  15 U.S.C. § 1692c(a)(3) specifically prohibits communication by… Read More

In Davis v. Hollins Law, --- F.Supp.2d ----, 2014 WL 2619651 (E.D.Cal. 2014), Judge Karlton held a bench trial and awarded $250 in statutory penalty under the FDCPA, but nothing under the Rosenthal Act, due to the difference in statutory language between the two statutes.  Judge Karlton awarded, however, $35,813.30 in attorneys’ fees to Plaintiffs’ counsel as the prevailing party… Read More

In Hillis v. Trans Union, LLC, 2014 WL 2581094 (E.D.Pa. 2014), Judge Davis denied a furnisher's summary judgment in a FCRA claim brought by a divorced husband who claimed that his ex wife was obligated to pay the auto loan under their divorce decree. On April 10, 2007, the Hillises were divorced. ( See Decree of Divorce 6, Def.'s Mot. Summ.… Read More

In Gray v. Morgan Drexen, Inc., 2014 WL 2573227 (M.D.Fla. 2014), Judge Steele denied Summary Judgment to a TCPA defend based on a triable issue of fact as to whether the Plaintiff had orally revoked consent to be auto-dialed on her cellular telephone.  The facts were as follows: This case concerns alleged violations of the Telephone Consumer Protection Act (TCPA),… Read More

In Trainor v. Citibank, Nat. Ass'n, 2014 WL 2574527 (D.Minn. 2014), Judge Magnuson refused to stay a TCPA case based on the Primary Jurisdiction Doctrine. Citibank seeks a stay of this action to allow the FCC to rule on several pending petitions that will determine whether Citibank's telephone equipment meets the definition of automatic telephone dialing system (“ATDS”) in the… Read More

In Fontell v. Hassett, --- Fed.Appx. ----, 2014 WL 2464987 (4th Cir. 2014), the Court of Appeals for the Fourth Circuit distinguished between “default” and mere “delinquency” in determining, under the FDCPA,  whether an account was “in default” at the time it was obtained. Excluded from the FDCPA's definition of debt collectors, see 15 U.S.C. § 1692a(6) is “any person… Read More

In Murray v. Diversified Consultants, Inc., 2014 WL 2574042 (M.D.Fla. 2014), Judge Moody refused to stay a TCPA based on the Primary Jurisdiction doctrine. The first issue regarding whether the TCPA applies to non-telemarketing calls such as debt collection calls has already been addressed by the Eleventh Circuit in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.2014).… Read More

The Court of Appeals for the 11th Circuit replaced it's June 5, 2014 decision, and issued a substitute opinion here, stating that the issue on appeal previously was decided by its Osorio decision, which had defined “called party” as the subscriber, and that “each succeeding panel is bound by the holding of the first panel to address an issue of law,… Read More

In Breslow v. Wells Fargo, here, the 11th Circuit followed the 7th Circuit's Soppett decision to find that "called party" under the TCPA is the subscriber to the cellular telephone.  "At bottom, the FCC recognized that debt collectors are in a better position to determine whether a party’s consent is still valid. That is, a person who is assigned a… Read More

In Fenescey v. Diversified Consultants, Inc., 2014 WL 2526571 (M.D.Pa. 2014), Judge Conaboy refused to stay a TCPA case based on the Primary Jurisdiction Doctrine because he believed the issues presented already had been decided by the Third Circuit Court of Appeals. Here the question of whether the TCPA applies to non-telemarketing calls made to a cellular phone has been… Read More

In Grant v. Unifund CCR, LLC, --- Fed.Appx. ----, 2014 WL 2444600 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit held that an FDCPA case removed to federal court and then challenged based on the Rooker-Feldman doctrine must be remanded, not dismissed. Once the district court dismissed with prejudice the first class of claims, all of the… Read More

In Sterk v. Path, Inc., --- F.Supp.2d ----, 2014 WL 2443785 (N.D.Ill. 2014), Judge Der-Yeghiayan found, after discovery was permitted on the subject, that a text message service used an ATDS within the meaning of the TCPA. The parties both argue that they are entitled to judgment as a matter of law as to whether Path used an ATDS to… Read More