In In re Dumont, --- F.3d ----, 2009 WL 2928930 (9th Cir. 2009), the Court of Appeals for the Ninth Circuit held that BAPCPA eliminated the ‘pay-and-drive’ ride through which the Ninth Circuit had sanctioned in McClellan Fed. Credit Union v. Parker (In re Parker), 139 F.3d 668 (9th Cir.1998). The Court of Appeals explained, “Having decided that section 521(a)(2)(C),… Read More
In Fleming v. Heaton, the Court of Appeals for the Ninth Circuit held that the tort damages arising from a conversion cause of action do not arise out of a "transaction" under the FDCPA's definition of "debt". The Court of Appeals explained: We have held that “at a minimum, a ‘transaction’ under the FDCPA must involve some kind of business… Read More
In Beaudry v. Telecheck Services, Inc. , -- F.3d __, 2009 WL 2633205 (6th Cir. 2009), the Court of Appeals held that a FCRA plaintiff need not plead or prove actual damages -- e.g. denial of credit -- to recover for a willful violation of FCRA. The Court of Appeals described Plaintiff's claim as follows: In 2007, Cheryl Beaudry sued the defendants, a… Read More
SB 95 enacts the California Car Buyer' Protection Act of 2009. Specifically, this bill: 1. Increases the fee for a license issued to dealers and lessor-retailers by $25 for the original license, or any change which requires a new application and the annual renewal of a license, and the fee for an auto broker's endorsement to a dealer's license and annual renewals by $50.… Read More
In Ruth v. Triumph Partners, Ltd., --- F.3d ----, 2009 WL 2487092 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit held that a debt collector’s inclusion of a Gramm-Leach-Bliley privacy notice with its debt validation letter violated the FDCPA. The Court of Appeals explained: Upon receiving and reading the collection letter and the notice, the only… Read More
In Pollock v. Bay Area Credit Service, LLC, 2009 WL 2475167 (S.D.Fla.,2009), Judge Dimitrouleas refused to apply the Rosenthal Act extraterritorially, meaning to non-California debtors against whom debt collection was performed by a California LLC. Judge Dimitrouleas explained: The Court would note that commentary on the Rosenthal Act's protection discusses it in terms of debt collection within the state:… Read More
In In re: Johnson, __ F.3d __, 2009 WL 2386142 (10th Cir. 2009), the Court of Appeals for the Tenth Circuit addressed whether the dismissal of a debtor's bankruptcy divested the Bankruptcy Court of the power to determine whether the creditor violated the automatic stay for a post-petition repossession of the debtor's vehicle. The Court of Appeals held that the… Read More
In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 2009 WL 803127 (2009), the United States Supreme Court granted certiorari to address the question whether whether a debt collector's legal error qualifies for protection under the FDCPA's bona fide error defense. The question pits the 6th and 10th Circuits -- which held that the defense protects against such errors -- against… Read More
In Imperial Merchant Services v. Hunt, 2009 WL 2424543 (2009), the California Supreme Court granted a request by the United States Court of Appeals for the Ninth Circuit (Cal. Rules of Court, rule 8.548) to decide a question of California law: whether a debt collector recovering on a dishonored check may recover both a service charge under section 1719 and… Read More
In a case probably limited to its particular facts, the Court of Appeals for the Ninth Circuit applied the discovery rule to the FDCPA in Magnum v. Action Collection Services, Inc. , a copy of which can be found here. Read More
A copy of the Article can be found here. Source: Consumer Financial Services Law Report. Copyright 2009 by LRP Publications, P.O. Box 24668, West Palm Beach, FL 33416-4668. All rights reserved. For more information on this or other products published by LRP Publications, please call 1-800-341-7874 or visit their website at: www.shoplrp.com Read More
The 10th Circuit Court of Appeals agreed with its BAP's recent decision in In re: Padgett and found that the negative equity in a motor vehicle contract was part of the purchase money security interest protected from cram-down under 11 U.S.C. §1325(a). In re John Wesley Ford, Sr. (No. 08-3192) (10th Cir. 2009). Read More
In Savage v. NIC, Inc. 2009 WL 2259726 (D.Ariz. 2009) , Judge Teilborg explained the quantum of evidence necessary for a finding of harassment, as well as whether 15 U.S.C. § 1692e(4), which prohibits a debt collector from representing or implying to a plaintiff that nonpayment will result in garnishment of wages unless such action is lawful and the debt… Read More
In Durandisse v. U.S. Auto Task Force, 2009 WL 2337133 (S.D.N.Y. 2009), Judge Chin held that the FDCPA can apply to automobile repossession companies, explaining: For most provisions of the FDCPA, repossession agencies are not considered “debt collectors.” See Jordan v. Kent Recovery Services, Inc., 731 F.Supp. 652, 656-58 (D.Del.1990). For purposes of Section 1692f(6) of the FDCPA, however,… Read More
In Gonzalez v. Kay, --- F.3d ----, 2009 WL 2357015 (5th Cir. 2009), the Court of Appeals for the Fifth Circuit attempted to justify the various decisions involving whether a collection letter on law firm letterhead requires actual attorney involvement in the collection process. The Court of Appeals explained, in part, In sum, the main difference between the cases… Read More
See the FTC's Press Release here. Read More
In Fausto v. Credigy Services Corp., 598 F.Supp.2d 1049 (N.D.Cal. 2009), Judge Ware defined the quantum of proof necessary to recover “actual damages” under the FDCPA. The FDCPA permits an award of actual damages for a defendant's violation of the statutory scheme. 15 U.S.C. § 1692k(a)(1). “Actual damages [under the FDCPA] not only include any out of pocket expenses,… Read More
In Gruen v. EdFund, 2009 WL 2136785 (N.D.Cal. 2009), Judge White elaborated on who may be subject to the FDCPA: EdFund contends that it falls within the “bona fide fiduciary obligation” exemption to the FDCPA. The FDPCA exempts from the definition of “debt collector” any person “collecting or attempting to collect any debt owed or due or asserted to be… Read More
The Court of Appeals for the Tenth Circuit adopted the creditor's interpretation of the "hanging paragraph" of section 1325(a) of BAPCPA in In re: Padgett (BAP No. KS-08-069) (10th Cir. 2009) Read More
