In Sclafani v. BC Services, here, Judge Huck held refused to allow an FDCPA harassment claim by a non-debtor to proceed against a debt collection agency. As to the mini-Miranda requirement, Judge Huck explained: To allow a person who knows that he does not owe a debt, and does not even know the debtor, to bring suit as a… Read More
In Owings v. Hunt & Henriques, 2010 WL 3489342 (S.D.Cal. 2010), Judge Lorenz found that a debt collector violated the Rosenthal Act in the collection of a debt from a National Guardsman called into military service. The definition of “debt collector” under California Civil Code Section 1788.2(c) expressly excludes “an attorney or counselor at law.” FN2 A creditor's counsel… Read More
In Fisher v. DCH Temecula Imports, LLC (2010) 2010 DAR 12715 , the California Court of Appeal refused to enforce an arbitration clause with a class action waiver in it, distinguishing Arguelles-Romero v. Superior Court (2010) 184 Cal.App.4th 825 as merely dealing with claims under the Rees-Levering Automobile Sales Finance Act, not the CLRA, -- the latter of which gives… Read More
In Engram v. JPMorgan Chase Bank, 2010 WL 3447390 (Ariz. App. 2010), the Court of Appeal in an unpublished decision reversed summary judgment granted to an automobile finance company on a consumer’s wrongful repossession claim. The facts were recited as follows: The Engrams bought a car in February 2005. The sales price, with tax, registration and fees, totaled $13,277.… Read More
In Edeh v. Midland Credit Management, Inc. (D. Minn. 2010) , Judge Schiltz found that a debt collector does not violate the FDCPA by reporting an account to the Credit Reporting Agencies after a debtor demands validation without first validating the debt, explaining The Court rejects Edeh’s argument that a debt collector who, before verifying a disputed debt to a consumer,… Read More
The Federal Trade Commission requests public comment on a proposed statement of enforcement policy regarding communications in connection with collection of a decedent's debts. here The statement addresses three issues pertaining to debt collectors who attempt to collect on the debts of deceased debtors. First, the proposed statement announces that the FTC will not bring enforcement actions for violations of Section… Read More
In Winer v. Family Inv. Co., Inc. 2010 WL 3920365 (2010), Chad E. Winer and Nicole M. Franklin, filed suit against Family Investment Company, Inc. dba Family Honda asserting causes of action for viola-tion of the Consumers Legal Remedies Act (Civ.Code, § 1750 et seq.) (CLRA), unfair business practices (Bus. & Prof.Code, § 17200 et seq.), negligent misrepresentation, and intentional misrepresentation.… Read More
In Minor v. Chase Auto Finance Corp. 2010 Ark. App. 670, 2010 WL 3902754 (Ark.App. 2010), the Court of Appeal affirmed a directed verdict in favor of an automobile finance company on the Plaintiff’s claim of breach of the peace during a repossession, explaining: Minor's first remaining argument is that he produced substantial evidence of wrongful repossession, conversion, and… 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
On District Court in North Carolina says that it does. In Racick v. Dominion Law Associates, --- F.Supp.2d ----, 2010 WL 3928702 (E.D.N.C.), Judge Fox applied the Twombly/Iqbal pleadings standards to affirmative defenses set forth by a debt collector in an FDCPA case, and set forth a primer on the split of authority amongst the district courts on the subject. … Read More
In Simmons v. Roundup Funding, LLC, --- F.3d ----, 2010 WL 3859609 (2d Cir. 2010), the Court of Appeals for the Second Circuit found that the bankruptcy code, not the FDCPA, provides the exclusive remedy for fraudulent or defective proofs of claim. Bankruptcy provides remedies for wrongfully filed proofs of claim. “It is beyond cavil that past bankruptcy practice,… 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 Sohns v. Bramacint, L.L.C., Judge Ericksen held that spoofing a caller identification identity to falsely represent the source of the call violates the FDCPA. Judge Ericksen explained: In Knoll, the plaintiff claimed that the defendant debt collector had violated §§ 1692d-1692f by “transmitting the false name of ‘Jennifer Smith’ via a caller identification device to consumers to lure them… Read More
Sen. Franken just introduced the "End Debt Collector Abuse Act of 2010", a copy of which is here. As a general proposition, the bill would (1) prohibit a request by a debt collector to have a warrant issued for the rest of any debtor, (2) add new debt validation notice requirements, (3) add new validation requirements in response to a… Read More
In McNall v. Credit Bureau of Josephine County, Inc., 2010 WL 3306899 (D.Or.) Judge Clarke affirmed that 15 U.S.C. § 1692e(8) requires a sequence before credit reporting obligations arise, but nevertheless granted summary judgment to a plaintiff against a debt collector, explaining: In this case, as shown in the pleadings, Defendant CBJC made a conscious decision not to report… Read More
The FDCPA offers no definitive number on how many telephone calls constitutes harassment under 15 U.S.C. 1692d(5) and Civil Code 1788.11(e). Recent jurisprudence, at least under the FDCPA, has suggested that a showing of pattern, intent, and consumer complaints about the excessive calls may be required. For example, in Winberry v. United Collection Bureau, Inc., 2010 WL 996144 (M.D.Ala. 2010), Judge… Read More
In Salvagne v. Fairfield Ford, Inc., 2010 WL 3292967 (S.D.Ohio 2010), the District Court found that use of a “Spot Delivery” contract addendum allowing rescission in the event financing was not secured violated TILA. The Court denied the dealer’s motion for summary judgment, explaining: Here, the parties do not dispute that the disclosures made in the RISC satisfy TILA's… Read More
In Carvalho v. Equifax Information Services, LLC, -- F.3d -- 2010 WL 3239477 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit confirmed FCRA pre-emption of California's CCRAA -- except Civil Code 1785.25(a). The Court of Appeals explained: Because the private right of action to enforce section 1785.25(a) is found in sections 1785.25(g) and 1785.31, which are not… Read More
In Riggs v. Prober & Raphael, 2010 WL 3238969 (N.D.Cal.), Judge Fogel held that, under Iqbal and Twombly, an FDCPA plaintiff failed to state a claim for lack of meaningful attorney involvement or for violating the Camacho standard for debt validation warnings. As to the former, Judge Fogel explained, Plaintiff contends that her allegations that (1) Defendants sent the… Read More
