Common Law Torts

In Dabney v. Total Relocation Services, LLC, Not Reported in A.3d, 2013 WL 68727 (N.J.Super.A.D. 2013), the New Jersey appellate court found, in an unpublished decision, complete preemption of common defamation claims by FCRA. Having canvassed the vast array of judicial opinions dealing with FCRA preemption, we conclude that the straight forward total preemption approach of these courts of appeal is most… Read More

In Kleiman v. Equable Ascent, 2013 WL 49754 (C.D.Cal. 2013), Judge Snyder allowed an FDCPA-telephonic harassment claim to proceed as adequately pleaded. Defendant's argument that plaintiff must allege the exact time debt collection phone calls occurred and the names of the individuals who made the calls appears to rest on the mistaken assumption that the heightened pleading standards of Federal Rule… Read More

In Mann v. Wells Fargo Bank, 2012 WL 3727369 (N.D.Cal. 2012), Judge Ryu found defamations completely preempted by FCRA.  The facts, arising out of a mortgage loan, were as follows: In July 2005, Plaintiffs obtained first and second home mortgages in the amounts of $484,000 and $121,000, respectively, on their home and real property located in El Dorado Hills. (Compl.¶ 11.) Wells… Read More

In Carson v. Bank of America, N.A., 2012 WL 5041359 (E.D.Cal. 2012), Judge Englund found that FCRA pre-empted Plaintiff’s tort claims for false light and invasion of privacy. Plaintiffs' seventh claim is for false light invasion of privacy. Plaintiffs allege, specifically, that Defendant “reported Plaintiffs late on their mortgage payments, when they were not in fact late, and initiating foreclosure… Read More

In Los Angeles Federal Credit Union v. Madatyan (2012) 2012 WL 4830255, the customer purchased a 2000 Bentley, financed by his credit union.   The RISC required the customer to insure the car against collision damage and name the credit union as a loss payee.  The car was damaged.  The customer's repair shop estimated repair costs at $39,000.  The insurer paid… Read More

In Smith v. Capital One Financial Corp.  2012 WL 1669347 (N.D.Cal. 2012), Judge Hamilton held that an FDCPA claim and common law invasion of privacy claim would not lie against a credit card company collecting its own obligations. However, a company that extends a consumer credit line (e.g., a credit card company) is in the business of extending credit, not the… Read More

In McEndree v. Rash Curtis & Associates, 2012 WL 1640465 (E.D.Cal. 2012), Judge England found that liability cascaded down through the Rosenthal Act and FDCPA when a debt collector communicated about the debt with a girlfriend whom the debt collector mistakenly believed was the debtor's spouse.  Judge England found liability for impermissibly violating the prohibition against discussing more than location information… Read More

In McNichols v. Moore Law Group, 2012 WL 667760 (S.D.Cal. 2012), Judge Hayes held (without analysis) that a Plaintiff stated vicarious FDCPA liability against a Bank for the collection actions of its counsel.    Plaintiff alleges in the Complaint that Defendant Dis-cover Bank “uses an instrumentality of interstate commerce or the mails in a business the principal purpose of which… Read More

In Bourgi v. West Covina Motors, Inc., 2011 WL 2207477 (2011), the California Court of Appeal held in an unpublished decision that a dealer’s use of non-OEM parts to repair a new vehicle damaged in shipment did not negate the safe harbor of Vehicle Code 9990-1.  In a previous opinion, the Court had held that   In Bourgi I, we… Read More

In Stuart v. AR Resources, Inc., 2011 WL 904167 (E.D.Pa. 2011), Judge Buckwalter allowed a Plaintiff's TCPA-FDCPA claim to proceed, explaining: Plaintiff next asserts that Defendants have violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by calling her cellular telephone with automated recordings. (Compl.¶¶ 15, 36.) Under the TCPA, it is unlawful:  (A) to make any call… Read More

In Bailey v. Household Finance Corp. of California, 2010 WL 4569950 (S.D.Cal. 2010), Judge Hayes found that a Plaintiff stated a tort claim arising from defendant’s recording of their collection communications, explaining:   Plaintiff alleges that Defendants violated California's Invasion of Privacy Act, California Penal Code § 630, et seq. by using “a software system that enables [Defendants] to secretly… Read More

In Marseglia v. JP Morgan Chase Bank, --- F.Supp.2d ----, 2010 WL 4595549 (S.D.Cal. 2010), Judge Houston put to rest questions about the common law torts of invasion of privacy and “tort-in-se”, as well as the question regarding whether the Rosenthal Act provides multiple penalties for debt collection torts.    As to the invasion of privacy claim deriving from purportedly… Read More

In Begg v. Dell Financial Services, L.L.C., 2010 WL 3909914 (S.D.Cal. 2010), Judge Benitez defined the “intrusion on seclusion” tort in the FDCPA context, finding that Plaintiffs failed to state a claim.   “To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the… Read More

In Paul v. Providence Health System-Oregon, --- P.3d ----, 2010 WL 3894650 (Or.App. 2010), the Oregon Court of Appeal rejected a claim by approximately 365,000 individuals whose unencrypted records containing personal, medical, and financial information were stolen from the car of one of defendant's employees.  Plaintiffs alleged that defendant had negligently failed to safeguard those records.   Plaintiffs sought injunctive relief… Read More

In Ruiz v. Gap, Inc. Ruiz v. Gap, Inc. 2010 WL 2170993 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit found speculative Plaintiff’s claims of fear of future identity theft based on theft of a laptop computer that contained the Plaintiff’s social security number. The Court of Appeals explained, in an unpublished opinion, that:   The district… Read More

In Hariton v. Chase Auto Finance Corp., 2d, 2010 WL 3075609 (C.D.Cal. 2010), Judge Matz granted summary judgment for an automobile finance company who was sued under FCRA and for negligence in their reporting of their customer’s account.    Whether damages are or are not an element of a FCRA claim depends on whether the noncompliance was willful or negligent.… Read More

In Perlas v. GMAC Mort., L.C.C. – Cal.Rptr.3d –, 2010 WL 3155946 (2010), the California Court of Appeal held that a finance company owed no duty to the borrower to determne the borrower’s ability to repay. Though Perlas involved a home mortgage loan, the same principle may apply to auto finance as well. The Court of Appeal explained:   Neither… Read More