In Sepehry-Fard v. Department Stores National Bank, 2013 WL 6574774 (N.D.Cal. 2013), Judge Orrick, among other things, found that a debtor had failed to properly plead negligence and TCPA claims against his credit card company. As to Negligence, Judge Orrick found: In his negligence cause of action, plaintiff alleges that the Financial Entities harassed, intimidated and trespassed on plaintiff and… Read More
In Mashiri v. Ocwen Loan Servicing, LLC, 2013 WL 5797584 (S.D.Cal. 2013), Judge Lorenz found a TCPA claim adequately pleaded. First, Judge Lorenz rejected the Defendant’s argument that the TCPA does not apply to debt collectors placing calls to wireless telephone numbers by use of an autodialer: The TCPA contains separate provisions for calls made to residential telephone lines and… Read More
In Levy v. Receivables Performance Management, LLC--- F.Supp.2d ----, 2013 WL 5310166 (E.D.N.Y. 2013), Judge Bianco found an absence of consent under the TCPA for a debt collector calling a consumer's cellular telephone where the consumer had given a prior cellular number to the creditor. With respect to the issue of prior express consent, both the FCC and various federal courts… Read More
In Iniguez v. The CBE Group, --- F.Supp.2d ----, 2013 WL 4780785 (E.D.Cal. 2013), Judge Mendez addressed the propriety of a class-action lawsuit brought against a debt collection agency under TCPA by an “unintended recipient” of collection calls. The lawsuit was based on Plaintiff's allegations that Defendant placed numerous calls to her cell phone seeking to collect a debt owed… Read More
In Forrest v. Genpact Services, LLC, --- F.Supp.2d ----, 2013 WL 4516479 (M.D.Pa. 2013), Judge Nealon denied a Motion to Dismiss that was brought on the basis that the TCPA plaintiff had not alleged that she actually answered the autodialed calls to her cellular telephone. Defendant argues that Plaintiff's TCPA claims must fail because she fails to allege that she… Read More
In Huizar v. Mandarich Law Group LLP, 2013 WL 4209050 (C.D.Cal. 2013), a law firm was sued arising out of collection on an unpaid debt for the purchase of an engagement ring. The facts were as follows: Huizar purchased an engagement ring on credit from a now-defunct jewelry store. Compl. ¶ 21. Plaintiffs allege that defendant engaged in debt collection activities… Read More
In Castro v. Green Tree Servicing LLC, --- F.Supp.2d ----, 2013 WL 4105196 (S.D.N.Y. 2013), Judge Ramos found that including a GLB Privacy Notice with a collection letter was deceptive. Judge Ramos also denied the defendant’s Motion for Summary Judgment on Plaintiff’s TCPA claim. Judge Ramos found questions of fact that an auto-dailer was used and that trapping a consumer’s… Read More
In Volpe v. Caribbean Cruise Line, Inc., 2013 WL 3724858 (N.D.Ill. 2013), Judge Guzman found that the Plaintiff stated a claim under the TCPA notwithstanding defendant's argument that plaintiff's complaint triggered the defense of consent. The TCPA prohibits any person from “mak[ing] any call ... using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number… Read More
In Clayton v. Aaron's Inc., 2013 WL 3148174 (E.D.Va. 2013), Judge Spencer addressed whether a consumer who received debt collection text messages stated a claim under the TCPA. Judge Spencer held that the consumer could not. § 227(b)(1)(A)(iii) prohibits any person within the United States from making any call (or text message) to a cell phone number, other than for emergency purposes… Read More
In Lynn v. Monarch Recovery Management, Inc., 2013 WL 3071334 (D.Md. 2013), Judge Quarles refused to certify his opinion that a call to a land-line made over VoIP Protocol fell within the TCPA’s “charged call” liability provisions rather than the TCPA’s “land-line” exemption. The facts, recited in more detail below, were that the Plaintiff set up his land-line through VoIP… Read More
In O'Connor v. Diversified Consultants, Inc., 2013 WL 2319342 (E.D.Mo. 2013), Judge Sippel denied class certification in an FDCPA/TCPA case. Judge Sippel declined to certify an FDCPA ‘overshadowing’ class, finding that individual inquires predominated. However, a debt collector cannot use collection tactics that lead a debtor to believe he does not have any right to challenge the debt. Such a… Read More
In Robbins v. Coca-Cola-Company, 2013 WL 2252646 (S.D.Cal. 2013), Judge Gonzalez found that the Plaintiffs stated a TCPA claim against Coke for SMS text messages sent promoting Coke products. “Whether Plaintiffs gave the required prior express consent is an affirmative defense to be raised and proved by a TCPA defendant, however, and is not an element of Plaintiffs' TCPA claim.”… Read More
In Blair v. CBE Group Inc., 2013 WL 2029155 (S.D.Cal. 2013), Judge Anello rejected a debt collector’s home-run FRCP 12(b)(6) motion to dismiss a TCPA class action at the pleadings stage. First, Judge Anello found that debt collectors such as CBE Group might be subject to the TCPA, and Plaintiff’s Complaint had pleaded enough. Relying on extensive legislative history and… Read More
In Meyer v. Receivables Performance Management, LLC, 2013 WL 1914392 (W.D.Wash. 2013), Judge Jones summarily disposed of a debt collector’s efforts to dismiss a TCPA class action at the pleadings stage. From February 2012 to April 2012, Ms. Meyer received many calls on her cellular phone from RPM. RPM is a debt collector. When Ms. Meyer did not answer, RPM… Read More
In Gragg v. Orange Cab Co., Inc., --- F.Supp.2d ----, 2013 WL 1788479 (W.D.Wash. 2013), Judge Lasnik found that a TCPA Plaintiff, on his second time around, pleaded enough facts to demonstrate use of an ATDS with sufficiency to state a claim under the TCPA in a text message case. Contrary to plaintiff's arguments about the pleading standard for alleging… Read More
In Kristensen v. Credit Payment Services Inc., 2013 WL 686492 (D.Nev. 2013), Judge Dawson found that Plaintiff’s bald recitation of the elements of a text-message TCPA claim was sufficient to survive an FRCP 12(b)(6) Motion. Plaintiff's complaint alleges that Defendant Credit Payment Services Inc. (“Defendant”), directly or through its agents, caused or directed unsolicited SMS text messages to be sent… Read More
In Moore v. CCB Credit Services, Inc., 2013 WL 211048 (E.D.Mo. 2013), Judge Sippel found no actionable FDCPA harassment, but held the matter over for trial on the issue of consent and charges for calls under the TCPA. The District Court found that the number of calls did not amount to actionable harassment: It is undisputed that CCB made 65… Read More
In Gragg v. Orange Cab Co., Inc., 2013 WL 195466 (W.D.Wash. 2013), Judge Lasnik found that Plaintiff’s TCPA failed under Iqbal/Twombly due to failure to plead an ATDS. However, Judge Lasnik set forth the standards for what a Plaintiff would have to allege to properly plead use of an ATDS. The Plaintiff alleges that he received an unsolicited text message… Read More
In Johansen v. Vivant, Inc., 2012 WL 6590551 (N.D.Ill. 2012), Judge Aspen found that Iqbal/Twombly require a TCPA plaintiff to plead at least something more under the TCPA than that an ATDS was used. The cases fall within three general categories. The first set of cases hold that reciting the statutory definition of an ATDS in the complaint suffices and that the validity… Read More
In Sacco v. Bank of America, N.A., 2012 WL 6566681 (W.D.N.C. 2012), Judge Voorhees conducted a lengthy examination of NBA/OCC/Dodd-Frank Pre-emption and whether those laws pre-empted the state fair debt collection laws. Judge Voorhees concluded that there was no pre-emption. The facts were as follows: Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that De-fendant Bank of America,… Read More
