Bankruptcy

In Tillman v. Mich. First Credit Union, & Sec. Auto Loans, No. 19-12860, 2021 U.S. Dist. LEXIS 66146, at *9 (E.D. Mich. Apr. 5, 2021), Judge Lawson granted summary judgment to an automobile lender on a challenge to the consumer report listing payment amounts post-bankruptcy discharge. The Sixth Circuit recently clarified the showing that must be made to sustain the… Read More

In Fca Us Llc v. Santander Bank, N.A., No. 19 C 1516, 2021 U.S. Dist. LEXIS 52353 (N.D. Ill. Mar. 17, 2021), Judge Lee estopped a dealership from asserting defenses against a Floorplan lender. Here, Santander asserts that it is entitled to the funds held by FCA under the following logical sequence: (1) New City entered into and defaulted under… Read More

In In re Loucks, No. 20-42265, 2020 Bankr. LEXIS 2824 (Bankr. E.D. Mich. Oct. 9, 2020), Judge Tucker said that the bankruptcy code does not require, but merely permits, a vehicle finance company to repossess a vehicle or release its lien under a Chapter 13 plan. This case is before the Court on the motion filed by the Debtor on… Read More

In Hogue v Silver State Schools Credit Union, the Court of Appeals for the Ninth Circuit affirmed dismissal of an FCRA case due to lack of Article III standing. First, Hogue has not shown actual harm to his concrete interests. The district court found that “no third parties made an adverse credit decision as to [Hogue] based on this disputed… Read More

In In re Ferreira, No. 18-5264, 2019 Bankr. LEXIS 3342, at *6-8 (Bankr. N.D. Ga. Oct. 24, 2019), the Bankruptcy Court found no fiduciary duty between a floorplan lender and dealer. A number of courts have considered whether contracts in a floor planning relationship create such a technical trust. As the bankruptcy court explained in VW Credit, Inc. v. Salim… Read More

In Auto. Fin. Corp. v. Nunez (In re Nunez), Nos. 17-33845-hdh7, 18-03004, 2019 Bankr. LEXIS 824 (Bankr. N.D. Tex. Mar. 15, 2019), Judge Hale denied a Floorplan lender’s non-dischargeability claim. The Plaintiff alleges that the Defendant committed fraud in securing advances from the Plaintiff and by transferring the Secured Vehicles without being paid in full. The Plaintiff also alleges the… Read More

In In re Ocwen Loan Servicing LLC Litig., No. 3:16-cv-00200-MMD-WGC, 2019 U.S. Dist. LEXIS 25968 (D. Nev. Feb. 19, 2019), Judge Du found that a mortgage company had a permissible purpose to ‘soft’ pull a consumer report post-bankruptcy discharge.  The facts were as follows. Plaintiffs are Christopher Marino, Henry L. Farrin, Jr., Joshua E. Hardin, Kristen Hardin, Dionne Horton, Deonca… Read More

In In re: Dunn, 2018 WL 3549310, at *4–5 (E.D.Pa., 2018), Judge Leeson affirmed the bankruptcy court's finding that the repossession of a vehicle violated the automatic stay. Here, the Bankruptcy Court, following the court’s decision in In re Rice concluded that the BAPCPA eliminated the ride-through option. Neither party disputes this determination, nor is it necessary for this Court… Read More

In Delgado v. Ally Financial, et. al., 2018 WL 2128661, at *5–6 (S.D.Cal., 2018), Judge Benitez ordered an FCRA case to arbitration, rejecting the Plaintiff's argument that the bankruptcy eliminated the arbitration clause. Delgado also opposes the enforcement of the arbitration provision on the basis his bankruptcy discharge rendered the arbitration provision unenforceable. (Doc. No. 25 at 4.) This assertion,… Read More

In re Jones, 2018 WL 1898140 (Bkrtcy.W.D.Wash., 2018), Judge Allston found that a bankrupt debtor’s vehicle did not secure the amounts financed to pay for optional service and GAP contracts. This claim objection appears to present an issue of first impression to the Court: whether optional contracts for gap insurance and vehicle maintenance should be treated as secured under the… Read More

In Florence v. Cenlar Federal Savings & Loan, 2018 WL 1145804, at *5–7 (D.Nev., 2018), Judge Navarro held that a mortgage debt was accurately reported through and after Chapter 13 bankruptcy proceedings. As a court stated in this District, “[t]he [c]ourt was unaware of any statute or case providing that discharge in bankruptcy makes a debt unreportable as opposed to uncollectable.”… Read More

In Nissou-Rabban v. Capital One Bank (USA), N.A., 2018 WL 538962, at *6 (S.D.Cal., 2018), Judge Houston found that an FCRA plaintiff whose credit card account has passed through bankruptcy sufficiently alleged an "inaccuracy" under the FCRA and that such claim could proceed as a class action.  After allowing the Plaintiff to amend the Complaint to allege a class action, the… Read More

In Gadomski v. Wells Fargo Bank N.A., 2018 WL 263903, at *3–4 (E.D.Cal., 2018), Judge Nunley rejected a consumer's claim that her FCRA claim was not subject to contractual arbitration because she'd had an intervening bankruptcy discharge. Plaintiff first argues the Agreement was rendered unenforceable because of the Bankruptcy Action. (ECF No. 15 at 5–6.) However, Plaintiff offers no cases… Read More

Scott Hyman, Don Cram, and Bernie Kornberg published an article in the Conference on Consumer Finance Law Quarterly entitled Hyman, Cram, & Kornberg, The Intersection of the Fair Credit Reporting Act and the Federal Consumer Bankruptcy Laws, 70 Conf. Con. Fin. L. Q 113 (Summer 2017). A copy of the article can be found here. Read More

In Ford Motor Credit Company v. Hall, No. 16-13333, 2017 WL 3084373 (D. Mich. July 20, 2017), Judge Borman found that the bankruptcy court exceeded its authority by sua sponte rejecting an auto finance company’s negotiated reaffirmation agreement and, instead, imposing conditions on the finance company that resembled a judicially created “ride-through”. Appellant challenges the Bankruptcy Court “Order Disapproving Reaffirmation… Read More

In In re: Edwards, No. 14–50717, 2017 WL 3037451 (W.D. Ky, July 17, 2017), Judge Stout found that a marine retailer's conversion of funds out-of-trust from the sale of collateral rendered his debt to his floorpan lender non-dischargeable. Taking these points together, this Court has no trouble finding that Mr. Edwards both read the documents he signed, and was aware of CFSB's… Read More

In Huizer v. Wells Fargo Bank, et. al., 2017 WL 2813181, at *3–4 (E.D.Cal., 2017), Judge O'Neill denied a furnisher's motion to dismiss a CCRAA claim grounded in post-bankruptcy credit reporting. This standard is met when a complaint plausibly alleges that a furnisher failed to report a debt as discharged. Venugopal v. Dig. Federal Credit Union, 2013 WL 1283436, at… Read More

In In re Keller, BAP No. EC–16–1152–BJuTa, Bk. No. 12–22391, 2017 WL 2312849  (9th Cir. BAP May 26, 2017), the Court of Appeals for the 9th Circuit BAP held that a creditor did not violate the automatic stay or the order confirming the debtor's Chapter 13 plan by reporting a debt to a credit reporting agency as overdue or delinquent during… Read More

In  Midland Funding, LLC v. Johnson, the SCOTUS held that allowing bankrupt debtors to invoke the FDCPA would upset a “delicate balance” and “authorize a new significant bankruptcy-related remedy in the absence of language in the [Bankruptcy] Code providing for it.”  Instead, barring debt collectors from filing stale claims would require creditors to investigate the merits of affirmative defenses. “The upshot… Read More

Anderson v. Experian Information Solutions, Inc., 2017 WL 914394, at *3–6 (N.D.Cal., 2017), Judge Freeman dismissed an FCRA claim grounded in a furnisher's and CRA's Ch. 13 credit reporting. Experian argues that even if Plaintiff had alleged his FCRA claim under § 1681i, the claim would fail because Plaintiff has not alleged facts showing that Experian's credit reporting was inaccurate.… Read More