In Wenzel v. National Creditors Connection, Inc., 2018 WL 1902699, at *12 (D.N.H., 2018), Judge McCafferty granted summary judgment to a debt collector on a Plaintiff's FDCPA harassment claim. The evidence in the record shows that Carrington called Wenzel’s cell phone seven times between July 28 and October 11, 2016, and never more than once on a single day. There… Read More
In Echlin v. PeaceHealth, 2018 WL 1801582, at *5–6 (C.A.9 (Wash.), 2018), the Court of Appeals for the Ninth Circuit held that a debt collector who engaged meaningfully in the debt collection process did not engage in “flat rating”. Echlin primarily argues that CCI did not meaningfully participate in the attempts to collect her debts because CCI did not engage… Read More
In Bell v. Northland Group., 2018 WL 1792368, at *1–2 (E.D.Mich., 2018), Judge Michelson found that a debt collector's good faith reliance on information provided by the creditor is not a defense to an FDCPA claim when the debt collector is not relying on a bona fide error defense Northland Group asserts that, because it relied in good faith on… Read More
In CFPB v. Weltman, Weinberg & Reid, Co., 2018 WL 1709408, at *3 (N.D.Ohio, 2018), Judge Nugent denied the CFPB’s and a debt collection law firm’s motions for summary judgment as to whether the law firm had meaningful involvement in the collection of the debts. Interestingly, the law firm defended the CFPB’s MSJ on the basis that the law firm… Read More
In Byrne v. Crown Asset Management, LLC., 2018 WL 1609479, at *2 (N.D.Cal., 2018), Judge Chen found that California's elder abuse statute permits trebling of the Rosenthal Act penalty. Defendant TRG argues that Section 3345 only authorizes trebling of punitive damages, and therefore the request should be interpreted as a “de facto” demand for punitive damages, which are unavailable under the… Read More
In Marshall v. CBE Group, Inc., 2018 WL 1567852, at *4–8 (D.Nev., 2018), Judge Navarro followed the ACA Int'l decision and, in the absence of interpretative guidelines by the FCC, applied the TCPA's "plain language". In light of this ruling, the Court will not stray from the statute's language which “mandates that the focus be on whether the equipment has… Read More
In Picazo v. Kimball, Tirey, & St. John, LLP, 2018 WL 1583228, at *5 (S.D.Cal., 2018), Judge Miller granted an Anti-SLAPP action filed by a debt collector in a Rosenthal Act claim arising from alleged misconduct in a state court UD action. Judge Miller first found that the Rosenthal Act prevailed over the litigation privilege under the facts of the… Read More
A copy of Erik Kemp's and Scott Hyman's article "The Consumer Financial Protection Bureau Regulates Pay-by-Phone 'Convenience” Fees'", CFSC Newsletter: ABA Business Law Section, (March 2018) can be found here: https://www.americanbar.org/content/dam/aba/administrative/business_law/newsletters/CL230000/full-issue-201803.authcheckdam.pdf Read More
Readers know that we've complained about this before -- that Courts apply different standards in individual and class actions when it comes to determining whether a debt was incurred primarily for consumer or business purposes. (Hyman & Walser-Jolly, The Effect of the FDCPA’s “Consumer Limitation on Class Certification: Do Courts Apply Different Standards in Individual and Class Actions? 70 Conf.… Read More
In Davidson v. Seterus, Inc., 2018 WL 1281873, at *7–10 (Cal.App. 4 Dist., 2018), the Court of Appeal found that a mortgage servicer was subject to the Rosenthal Act. Although the defendants concede that “secured debt could still be a 'consumer debt,' “ they nevertheless argue that this “does not mean a mortgage debt is a consumer debt.” The defendants… Read More
In O'Dell v. National Recovery Agency, 2018 WL 1172435, at *11–13 (E.D.Pa., 2018), Judge Smith granted class cert in an FDCPA case over procedural objections to the class definition. . . .NRA contended that its net worth is $84,000. A net worth this low could foreseeably result in a de minimis recovery for each individual class member (one percent of $84,000… Read More
In Romero v. Department Stores National Bank, 2018 WL 1079728, at *1 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA plaintiff had Spokeo standing. The district court erred in concluding that Romero lacked standing under Article III to bring a TCPA claim. The district court did not have the benefit of Van… Read More
In Lee v. Professional Recovery Systems, Inc., 2018 WL 1008432, at *3–6 (Cal.App. 1 Dist., 2018), the Court of Appeal held in an unpublished decision that the FCRA preempts the Rosenthal Act. Defendants contend this claim [violation of section 1788.17 --Ed.] is preempted by title 15 of the United States Code, section 1681t (governing credit reporting). . . . The violations plaintiff alleges… Read More
In Usry v. Equity Experts.Org, LLC, 2018 WL 934897, at *3 (S.D.Ga., 2018), Judge Hall held that a putative FDCPA class action was an impermissible "fail-safe" class. “A fail-safe class is a class whose membership can only be ascertained by a determination of the merits of the case because the class is defined in terms of the ultimate question of… Read More
In Hagy v. Demers & Adams, 2018 WL 914953, at *3–5 (C.A.6 (Ohio), 2018), the Court of Appeals for the 6th Circuit held that "[w]e know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury.". Thus, the 6th Circuit held that a bare FDCPA violation without correlative injury did not vest Article III… Read More
In Tatis v. Allied Interstate, LLC., 2018 WL 818004, at *3 (C.A.3 (N.J.), 2018), the Court of Appeals for the Third Circuit held that a letter that offered to "settle" a time-barred debt could be deceptive. Thus, Huertas stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so… Read More
In Roth v. Solomon & Solomon, P.C., 2018 WL 718402, at *4–6 (E.D.N.Y., 2018), Judge Seybert denied a debt collector's motion to dismiss an FDCPA class action. First, Judge Seybert held that the Plaintiff's bankruptcy did not deprive her of standing to sue. Here, after receiving the Letter, Plaintiff filed for bankruptcy but did not initially disclose her FDCPA claim… Read More
In Ngyuen v. LNV Funding, LLC, 2018 WL 769415, at *2–3 (S.D.Cal., 2018), Judge Burns entered summary judgment for a debt collector on the basis that the FDCPA plaintiff was precluded from using the FDCPA to challenge whether an underlying debt judgment was obtained by a timely filing. While the Court understands Nguyen’s argument—the California courts only decided that he owed… Read More
In McMillion v. Rash Curtis & Associates, 2018 WL 692105, at *4 (N.D.Cal., 2018), Judge Rodgers found that a TCPA Defendant used an ATDS during the class period. The record reflects that defendants used three dialers during the class period, namely (i) DAKCS/VIC, (ii) Global Connect, and (iii) TCN. Plaintiffs offer the testimony of Rash Curtis executives who state DAKCS/VIC and… Read More
In Lindblom v. Santander Consumer USA, Inc., 2018 WL 573356, at *5 (E.D.Cal., 2018), Judge McAuliffe found that the class representative was not typical because her claim fell outside the statute of limitations and was not subject to equitable tolling. As proposed by Plaintiff, the class definition includes individuals who paid Speedpay fees during the applicable limitations period, which is on… Read More
