The Federal Trade Commission and the Federal Reserve Board are seeking public comment on proposed amendments to the Risk-Based Pricing Rule that would require creditors, as of July 21, 2011, to disclose credit score information to consumers when a credit score is used in setting or adjusting credit terms. The Notice is set forth here and is summarized as follows: On… Read More
Today, over a vigorous dissent, the Court of Appeals for the Ninth Circuit denied en banc rehearing in In re: Penrod, here. Eight other circuit courts have ruled in favor of industry on the so-called "hanging paragraph" of BAPCPA. Justice Bea, joined by four other judges, objected (in part) to the denial of en banc review: Neither loan would ever have… Read More
In Santino v. NCO Financial Systems, Inc., Judge Curtin held, here, that the TCPA does not regulate land-line collection activities by a debt collector. After surveying the TCPA’s regulatory history, Judge Curtin concluded: In addition, several decisions subsequent to Watson provide support for defendant’s position that prerecorded calls intended solely for the collection of a debt–even calls received by non-debtors–are… Read More
The Summary, found here, states in part that "Through its consumer protection goal, the FTC focuses its efforts on fighting consumer fraud, deception, and unfair practices, and protecting consumer data and privacy. Agency law enforcement actions will continue to target deceptive and other illegal practices involving mortgage lending, debt collection, and other financial services. These practices can have severe consequences… Read More
In Wright v. Saxon Mortgage Services, Inc., 2011 WL 500798 (N.D.Cal. 2011), Judge Armstrong held that the Rosenthal Act's incorporation of federal law did not confer federal question jurisdiction, explaining: Even assuming that Plaintiff's sixth cause of action incorporates provisions of the FDCPA, relevant authority provides that federal question jurisdiction cannot be premised on that basis. See Ortega v. HomEq… Read More
In Aniebue v. Jaguar Credit Corporation, -- S.E.2d -- 2011 WL 522039 (Ga.App.2011), the Georgia Court of Appeal rejected a vehicle lessee's argument that a post-repossession notice applicable to security agreements was required because the lease was not a 'true lease' but, rather, a disquised security agreement. The Court of Appeal explained: Aniebue argues that the trial court erred in… Read More
The Federal Trade Commission issued its annual report to the Federal Reserve Board on FTC enforcement activities regarding the Equal Credit Opportunity Act, Electronic Fund Transfer Act (EFTA), Consumer Leasing Act, and Truth in Lending Act. This year’s report also discusses FTC activities under the Dodd-Frank Wall Street Reform and Consumer Protection Act, such as enforcement of new EFTA requirements… Read More
In Meadows v. Franklin Collection Service, Inc., 2011 WL 479997 (11th Cir. 2011), the Court of Appeals for the Eleventh Circuit found in an unpublished opinion that a triable issue of material fact existed as to whether 300 telephone calls over a 2 ½ year period constituted harassment. We find that the district court erred in granting summary judgment… Read More
In Anderson v. EMC Mortg. Corp., --- F.3d ----, 2011 WL 409095 (8th Cir. 2011), the Court of Appeals for the Eighth Circuit held that a furnisher did not violate FCRA by failing to re-investigate a purported inaccuracy as to which month an account was past due on. The Court of Appeals held that the Plaintiff had failed to notify… Read More
In DeSiqueira v. Toyota Motor Ins. Services, Inc., 2011 WL 362400 (2011), the California Court of Appeal held in an unpublished opinion that a manufacturer’s extended service contract did not violate the Song-Beverly Act merely because the Plaintiff “has a dismal opinion of the importance or value of the Contract's additional benefits”. The Court of Appeal explained: The Warranty… Read More
The Red Flag Program Clarification Act of 2010 narrows the definition of the term “creditor” to include only entities that that use consumer reports, furnish information to consumer reporting agencies, or to others who extend credit. More specifically, it amends the Fair Credit Reporting Act, with respect to federal agency (red flag) guidelines regarding identity theft and the users of consumer… Read More
In Scott v. Federal Bond and Collection Service, Inc., 2011 WL 176846 (N.D.Cal. 2011), Judge Koh found that a Rule 68 offer made in an FDCPA case might deprive a federal court of jurisdiction to hear the matter due to the absence of a case or controversy. Judge Koh explained: In support of their 12(b)(1) motion, Defendants rely on… 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
The Federal Trade Commission has issued a fourth interim report to Congress describing progress the agency has made on a national study examining the accuracy of credit reports. Congress directed the FTC to conduct a study of credit report accuracy and provide interim reports every two years, starting in 2004 and continuing through 2012, with a final report in 2014. According… Read More
In Narog v. Certegy Check Services, Inc., --- F.Supp.2d ----, 2011 WL 70595 (N.D.Cal.), Judge Illston found that credit reporting activity occurring after a debt was paid-in-full did not trigger FDCPA issues, explaining: It is clear from plaintiff's pleadings that he has alleged that a debt existed at one time. However, plaintiff complains only of acts or omissions relating… Read More
In Allen v. LaSalle Bank, -- F.3d – (3d Cir. 2011), here, the Court of Appeals for the Third Circuit disagreed with the Ninth Circuit’s decision in Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934-39 (9th Cir. 2007) and found inter-counsel communications are subject to the FDCPA, explaining: As noted above, the issue here is whether § 1692f(1)… Read More
In Zimmerman v. Zwicker & Associates, -- F.Supp.3d – (D.N.J. 2011), here, Judge Schneider rejected a propose class settlement arising from collection letters that purportedly violated the FDCPA on the basis that the settlement conferred a “phantom benefit” on the class. The parties propose that in exchange for no payment, 800,000 consumers release all claims they could have asserted… Read More
In Bankston v. Americredit Financial Services, Inc., 2011 WL 89730 (N.D. Cal. 2011), Judge Armstrong rejected a UCL claim based on an allegedly faulty post-repossession NOI letter on the basis that Plaintiff had not met the injury-in-fact prong of the UCL. With respect to the injury-in-fact requirement, Plaintiff argued that she suffered an injury in two ways: (1) “[h]er payment… Read More
In Walsh v. Hannah & Assoc., here, Judge Burrell of the USDC for the Eastern District of California found that an attorney disclaimer in a collection letter that no attorney had reviewed the file negated a claim that the letter was a 'false representation or implication that . . .any communication was from an attorney" under 15 U.S.C. 1692(e)(5). The District… Read More
The California Legislature enacted AB 2782, which purports to align the definition of "Credit Insurance Agent" in the Insurance Code with the definition used in the National Association of Insurance Companies (NAIC) Producer Licensing Model Act (PLMA). The PLMA definition permits these credit insurance agents to transact Guaranteed Automobile Protection (GAP) insurance -- insurance which protects a car buyer/lessee with… Read More
