In Owen v. I.C. System, Inc. --- F.3d ----, 2011 WL 43525 (11th Cir. 2011), the Court of Appeals for the Eleventh Circuit gave guidance in the post-Jerman world on the application of the bona-fide error defense. The Court explained that a ‘legal error’ under Jerman actually requires some exercise of legal judgment, explaining: There is no evidence, nor does… Read More
In Kelemen v. Professional Collection Systems, 2011 WL 31396 (M.D.Fla.), Judge Antoon ruled on what constitutes ‘obscene’ or ‘profane’ under the FDCPA 's section 1692d(2) (violation of the FDCPA for a debt collector to use “obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.”). Harkening back to Justice Stewart’s concurrence in… Read More
In Kramer v. Autobytel, Inc., --- F.Supp.2d ----, 2010 WL 5463116 (N.D.Cal. 2010), Judge Wilken rejected a constitutional challenge to the TCPA after the United States intervened and opposed the argument. The case involved a suit against Defendants Autobytel, Inc ., B2Mobile, LLC, and LeadClick Media, Inc., under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (… Read More
In the context of debt collection, non-disclosure, blocking, or misrepresentation through telephone caller identification equipment has received attention from the FTC and courts. For example, one FTC complaint pleaded: 19. In numerous instances, including in connection with newly-acquired loans, [collector] has made collection calls to borrowers repeatedly and with excessive frequency under the circumstances. In addition, in numerous instances, [collector]… Read More
What is the frequency with which a creditor can attempt to reach, or actually communicate with, a debtor in connection with the collection of a consumer obligation? The FDCPA established no statutory safe-harbor minimum or maximum call frequency; Congress specifically declined to issue bright line rules. Recent jurisprudence has moved away from a numbers-based approach to examine the call frequency… Read More
In Kropf v. TCA, Inc., --- F.Supp.2d ----, 2010 WL 4722282 (E.D.Mich. 2010), Judge Lawson addressed whether a Plaintiff, who had filed suit against a debt collector and its president alleging violations of the FDCPA, should prevail on an FRCP 12(b)(6) motion as to debt collector’s counterclaim for attorney's fees and costs. Judge Lawson noted that the FDCPA provides that,… Read More
In Cardenas v. AmeriCredit Financial Services Inc., 2010 WL 3619851 (N.D.Cal. 2010), the Plaintiffs sued to prevent the Defendant from collecting further based on a purportedly defective NOI letter. Plaintiff filed a class action against the defendant, alleging claims for (1) violation of the UCL, which, in turn, is predicated on a violation of Rees-Levering Automobile Sales Finance Act, Cal.Civ.Code §… Read More
In Karapetian v. Kia Motors America, Inc., --- F.Supp.2d ----, 2010 WL 4678691 (C.D.Cal. 2010), Judge Carney exercised his discretion to reduce Plaintiff’s attorneys’ fees in a lemon law case. In Karapetian, the Plaintiff’s counsel rejected the defendant’s Rule 68 offer and did not do better in the ultimate settlement of the Action, even though Plaintiff prevailed in the case. … Read More
In Brown v. Hosto & Buchan, PLLC (2010 Wl 4352932 (W.D.Tn. 2010), Judge Mays framed the issue on a Motion to Dismiss as whether "a debt collector calling a debtor's telephone seventeen times in one month and impermissibly calling a cellular telephone at least once plausibly violates section 1692d(5)". The Court found that Plaintiff stated a claim, explaining that "the… Read More
In Jiminez v. Accounts Receivable Management, Inc., Judge Wu relied on the Arteaga decision, and granted summary judgment for a debt collector on Plaintiff's FDCPA claim, which arged that 69 calls in a 115 day period constituted harassment. A copy of Judge Wu's order can be found here. 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 Shami v. National Enterprise Systems, 2010 WL 3824151 (E.D.N.Y. 2010), Judge Mauskopf concluded that a debt collector’s addition of an optional fee for payment by telephone potentially violated the FDCPA. The letter stated, in part: You can now pay by automated phone system ... or on the internet. Transaction fees will be charged if you use the automated… Read More
Not kidding. The FTC's Press Release states that the "New Business Center Can Help Boost Compliance with [the] FTC Law". http://www.ftc.gov/opa/2010/11/businesscenter.shtm Read More
We previously reported on the AT&T v. Concepcion argument scheduled for earlier this week. http://www.calautofinance.com/?p=1404 A transcript of the proceedings can be found here. Read More
One could say that "Bank Error in Your Favor" did not entitle the FCRA Plaintiff to $200. In Ross v. F.D.I.., --- F.3d ----, 2010 WL 4261819 (4th Cir. 2010), the Court of Appeals found no malice when a Bank acted merely negligently under FCRA. The facts were a bit complicated: James Williams executed a mortgage on a home… Read More
The United States Supreme Court decided not to take a better look at the Court of Appeals for the Ninth Circuit's holding in Gorman that FCRA did not pre-empt any remedy available under the Consumer Credit Reporting Agencies Act. The cite is FIA Card Services, N.A. v. Gorman -- S.Ct. --, 2010 WL 1047883 (2010) Read More
In AT&T v. Concepcion, the U.S. Supreme Court will decide whether the Federal Arbitration Act of 1925 requires enforcement of arbitration clauses, even if such clauses contain class-action bans. Oral argument is scheduled for November 9. The parties’ briefs can be found here: petitioner's brief and respondent's brief; although many amicus briefs have been filed on both sides, we attach only the… Read More
In Perez v. Midland Funding, LLC, 2010 WL 4117461 (N.D.Cal. 2010), Judge Koh held that the National Bank Act and OCC regulations pre-empted Rees-Levering’s disclosure requirements that afford post-repossession reinstatement/redemption rights to consumers who have had their vehicles repossessed. Judge Koh followed the Aguayo decision, and held that: Thus, although this Court agrees with the holding of Alkan, it… Read More
In Watts v. Enhanced Recovery Corp., 2010 WL 4117452 (N.D.Cal. 2010), Judge Koh held that the UCL does not provide standing to a plaintiff hinging the UCL claim on credit reporting problems -- in the absence of the plaintiff being deprived money in which the plaintiff held a property interest. Judge Koh explained: In 2004, California voters limited standing under… Read More
In Mora v. Harley-Davidson Credit Corp, 2010 WL 4008156 (E.D.Cal. 2010), Judge Wanger held that HDCC’s NOI letter failed Rees-Levering’s disclosure requirements – even if Rees-Levering allowed “substantial compliance”. Judge Wanger explained: Plaintiff contends that Defendant's NOI was deficient, inter alia, because the notice failed to state the actual amount Plaintiff was required to pay to effect… Read More
