In In re: Moroni (Ford Motor Credit Company v. Moroni), 2017 WL 436148, at *11 (Bkrtcy.N.D.Ill., 2017), Judge Cassling found that a car dealer's principals could not use the bankruptcy laws to discharge their debt to their floorplan lender. Some courts have held that “a debtor did not have the necessary fraudulent intent when the debtor used money in violation… Read More
In Keller v. Experian Information Solutions, Inc., 2017 WL 130285, at *6–8 (N.D.Cal., 2017), Judge Koh dismissed a FCRA plaintiff's argument that her creditor's reporting of an account during bankruptcy was inaccurate. Experian and Wells Fargo argue Plaintiff's FAC must be dismissed because Plaintiff fails to identify any inaccurate or misleading statements in Plaintiff's credit report. In response, Plaintiff argues… Read More
In Watts v. Diversified Adjustment Service, Inc., 2016 WL 6025496, at *1–2 (N.D.Cal., 2016), Judge Freeman granted a Motion to Dismiss, but granted leave to amend. Claim 1 is asserted under the FCRA, which is titled “Responsibilities of furnishers of information to consumer reporting agencies.” 15 U.S.C. § 1681s-2(b). The FCRA provides a private right of action under § 1681s-2(b) against… Read More
In McFarland-Rourk v. Drive Time Credit, Inc., 2016 WL 3014679, at *2-3 (M.D.Ga., 2016), Judge Land exercise jurisdiction and found an auto finance company's post-discharge of a consumer's vehicle to be proper. The general rule is that “[u]nless a lien is avoidable and the debtor has taken timely steps to avoid it, the lien survives the discharge in bankruptcy.” Holloway… Read More
In Blakeney v. Experian Information Solutions, 2016 WL 1535085, at *1-2 (N.D.Cal., 2016), Judge Koh grants a Motion to Dismiss filed by a FCRA furnisher who was alleged to have failed to properly re-investigate a dispute regarding an account that passed through Chapter 13. On November 7, 2014, Plaintiff filed for Chapter 13 bankruptcy. ECF No. 1 (“Compl.”) ¶ 5. “Chapter… Read More
In Asufrin v. Roundpoint Mortgage Servicing Corporation, 2016 WL 1056669, at *1 (N.D.Ill., 2016), Judge Aspen allowed a bankruptcy FCRA claim to proceed past the pleadings stage. In Asufrin, the Plaintiff alleged that RoundPoint mismanaged the credit reporting of her mortgage loan after she obtained a bankruptcy discharge. Despite Plaintiff's order of discharge, her Experian credit report revealed that RoundPoint was reporting the… Read More
In Mestayer v. Experian Information Solutions, Inc, 2016 WL 631980, at *1 (N.D.Cal., 2016), Judge Chen dismissed a Plaintiff's FCRA/CCRAA claims grounded in credit reporting during bankruptcy proceedings. On or about November 25, 2013, Ms. Mestayer filed for bankruptcy in the Northern District of California. On or about April 20, 2014, she received a bankruptcy discharge. During the bankruptcy proceedings, Ms.… Read More
In Abeyta v. Bank of America, N.A., 2016 WL 304308, at *2 (D.Nev., 2016), Judge Jones found that a bank's reporting, post-discharge, of a consumer's pre-petition debt as being in default, did not violate the FCRA because the report was not inaccurate. The facts were as follows. Plaintiff Ginney Abeyta filed for bankruptcy in this District in June 2010. (Compl.… Read More
In Garfield v. Ocwen Loan Servicing, LLC, 2016 WL 26631, at *2-3 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit said that FDCPA claims grounded in post-discharge misconduct are independent of the bankruptcy code. Where, as in this case, the later statute is the Bankruptcy Code, a distinction must be made between claims brought under the earlier statute during the… Read More
In In re Perry, 2015 WL 7188369, at *7-8 (Bkrtcy.C.D.Cal., 2015), Judge Mund granted summary judgment in an adversary proceeding for an auto finance company who failed to turn over a vehicle post-petition and then sold it. The facts were complicated and particular to the case, but the main point is that the Court got it right in distinguishing between… Read More
In In re Penrod, --- F.3d ---- (2015), the Court of Appeals for the Ninth Circuit found that the debtor who prevailed in the “hanging-paragraph” litigation was entitled to attorneys’ fees under Civil Code § 1717. AmeriCredit does not contest that the contract contains a unilateral attorney’s fees provision for purposes of the second condition. Nor does it contest that… Read More
I know it's a real property case, but the argument is something that we've seen a bit of in California on the personal property side. In Groff v. Wells Fargo Home Mortg., Inc., 2015 WL 2169811 (E.D. Mich. 2015), Judge Lawson found that the defendant did not violate the Fair Credit Reporting Act when it reported that the plaintiff’s bankruptcy-discharged… Read More
“A secured party is the master of its own termination statement,” or so said the Supreme Court of Delaware in ruling that a UCC-3 termination statement, which was filed by mistake and resulted in the termination of a $1.5 billion term loan, was effective because the filing was authorized by the secured parties involved. The Uniform Commercial Code (the “UCC”)… Read More
In Grandidier v. Quantum3 Group, LLC, 2014 WL 6908482 (S.D.Ind. 2014), Judge Young found that the FDCPA prohibits filing proofs of claim in bankruptcy court on debts that would be barred by the statute of limitations. The Eleventh Circuit recently decided a case nearly identical to the one before the court. See Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.2014).… Read More
In In re Johnson, 2014 WL 6953306 (9th Cir.BAP 2014), the 9th Cir. BAP applied In re: Penrod to bifurcate secured and unsecured claims on an automobile subject to a retail installment sales contract, but found that the unsecured claim should not be reduced to zero. On August 3, 2012, Johnson purchased a 2013 Hyundai Accent from Win Hyundai Carson. Win Hyundai financed… Read More
In In re Banks, --- B.R. ----, 2014 WL 5320539 (Bkrtcy.M.D.Ga. 2014), Judge Carter held that a finance company who finances a vehicle for a Chapter 13 debtor who acquires the vehicle post-petition and post-confirmation, but pre-discharge, violates the automatic stay by repossessing the vehicle on default. The Debtor filed a Chapter 13 Voluntary Petition on August 5, 2013. On… 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 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 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 In re Wallace, 2014 WL 1244792 (9th Cir.BAP 2014), the 9th Circuit BAP reversed and remanded for further proceedings a bankruptcy court’s finding that an automobile finance company’s post-petition retention of a repossessed vehicle was not a willful violation of the bankruptcy laws. The bankruptcy court here acknowledged that Carcredit's repossession of the automobile constituted a technical violation of… Read More
