Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), the ability of a debtor to "cramdown" the secured amount of a motor vehicle claim was commonplace. BAPCPA seemingly precluding the cramdown of claims secured by a purchase money security interest in certain vehicles obtained within 910 days of the bankruptcy filing. But the 2005 BAPCPA… Read More
In Miller v. Midland Funding, LLC, 2008 WL 4093004 (C.D.Cal. 2008), Judge Otis Wright clarified the type of penalties and damages recoverable under the FDCPA. As to the $1,000 penalty, Judge Wright explained: Defendants are correct that statutory damages are limited to $1,000 per action, not $1,000 per defendant. Clark v. Capital Credit & Collection Services, Inc. 460 F.3d 1162, 1178 (9th… Read More
In Catalfamo v. Countrywide Home Loans, 2008 WL 4158432 (E.D.Cal. 2008), Judge O'Neal held that the FDCPA does not afford a right to punitive damages, since the FDCPA already affords a right to a penalty. Mr. Catalfamo may not recover punitive damages for his RESPA, FDCPA, and breach of contract claims. RESPA and FDCPA provide for compensatory relief, reasonable attorneys'… Read More
After favorable treatment of the Noerr-Pennington Doctrine by the Court of Appeals for the Ninth Circuit in Sosa v. DirectTV, 437 F.3d 923, 929 (9th Cir. 2006), many saw analogy to FDCPA claims. In Sial v. Unifund CCR Partners, 2008 WL 4079281 (S.D.Cal. 2008), Judge Miller refused to apply the defense to litigation-related debt collection conduct. The Noerr-Pennington doctrine derives… Read More
The Motion, scheduled for hearing on October 31, can be reviewed here: leckler-v-cashcall-motion-to-dismiss-under-hobbs. Read More
In Kelly v. Wolpoff & Abramson, LLP, 2008 WL 2397689 (D.Colo. 2008), District Judge Nottingham rejected a consumer's claim that a debt collector violated the FDCPA by collecing on a "charged off" account. Judge Nottingham rejected the misperception some consumers have that "charging off" an account equates to debt extinguishment. According to generally accepted accounting principles codified into federal regulations and… Read More
In Reed v. Global Acceptance Credit Company, 2008 WL 3330165 (N.D.Cal. 2008), Judge Whyte rejected plaintiff's claim under Foti v. NCO Fin. Systems, Inc. 424 F.Supp.2d 643 (S.D.N.Y. 2006) and Hosseinzadeh v. M.R.S. Assocs, Inc. 337 F.Supp.2d 1104 (C.D.Cal. 2005) that a debt collector's failure to identify itself as a "debt collector" under 15 U.S.C. 1692e(11) violated that provision. Here,… Read More
In Yasin v. Equifax Information Services, Inc. 2008 WL 2782704 (N.D.Cal. 2008), Judge Chesney conducted an analysis of FCRA and held that "equitable relief is not available as a remedy" under FCRA, citing Howard v. Blue Ridge Bank 371 F.Supp.2d 1139, 1145 (N.D.Cal.2005). Judge Chesney also used an analogy to the FDCPA, finding in dicta that the FDCPA does not either. Read More
On July 3, 2008, Judge Conti ruled in Cruz v. MRC Receivables, Inc. -- F.Supp.2d -- 2008 WL 2627143 (N.D.Cal. 2008) on a debt collector's summary judgment motion in an FDCPA claim alleging that inclusion of the Notice of potentially adverse credit reporting required by California Civil Code § 1785.26 and 15 U.S.C. 1681s-2(a)(7)(A)(i) constituted an unfair collection tactic because… Read More
On July 7, 2008, the Court of Appeals for the Ninth Circuit in Reichert v. National Credit Systems, Inc. held that, in an action by a debtor against a debt collector under the FDCPA arising out of a debt that the debtor owed a former landlord, the debt collector bore the burden of proving the bona fide error defense. The… Read More
In Witt v. Experian Information Solutions, Inc. 2008 WL 2489132 (E.D.Cal. 2008), Witt sued a Real-Time Resolutions, Inc., a furnisher of credit information under FCRA. On June 16, Judge O'Neal of the USDC for the Eastern District dismissed Real-Time's collection action, which Real-Time filed as a counter-claim to the FCRA claim. Judge O'Neal, following Sparrow v. Mazda American Credit 385… Read More
In Murphy v. Triad Financial, Judge Benitez of USDC for the Southern District dismissed a Rosenthal Act claim as lacking federal question jurisdiction. Judge Benitez rejected the argument that since Civil Code § 1788.17 incorporates the federal FDCPA, claims filed under that section trigger federal question jurisdiction under the "substantial federal question" doctrine. The parties "argue that Murphy's Rosenthal Act… Read More
On June 2, 2008, Judge Jeremy Vogel held in an unpublished decision that although an act to enforce the FDCPA must be filed within one year from the date of the violation, "conduct occurring outside the statute of limitations is actionable under a continuing violation theory". (Cruz v. International Collection Corp. 2008 WL 2263800 (N.D.Cal. 2008). Judge Vogel explained that… Read More
On May 22, 2008, Judge Fogel of the United States District Court for the Northern District of California held that the TCPA's requirement that TCPA claims be filed in state court did not deprive federal courts of diversity jurisdiction to hear such claims. The TCPA dictates that an individual may bring a private right of action in state court. (47 U.S.C. § 227(b)(3),… Read More
In Saunders v. Branch Banking & Trust of Virginia, the Court of Appeals for the Fourth Circuit affirmed a punitive damage award against an automobile lender that had failed to report to the Credit Reporting Agencies in response to a Consumer Dispute Verification that the consumer disputed the account. The Court of Appeals found that a furnisher's failure to report… Read More
In Grimes v. Rave Motion Pictures No. 07-AR-1397-S (N.D.Ala. 2008), Judge William Acker found FACTA's penalty provision of "damages of not less than $100 and not more than $1,000" for each violation unconstitutionally vague in the context of a FACTA claim arising out of businesses' failure to truncate credit card numbers on electronically printed receipts. The Court noted that imposing… Read More
In Leckler v. CashCall, Inc, Judge Susan Illston of the United States District Court for the Northern District refused to follow the FCC's January 4, 2008 interpretive ruling of the Telephone Consumer Protection Act, which had permitted lenders to use autodialers and prerecorded message calls to wireless numbers so long as express consent had been given, such as if the consumer provided… Read More
On May 8, 2008, the Court of Appeals for the Ninth Circuit in Reusser v. Wachovia Bank, __ F.3d __ (9th Cir. 2008) applied the Rooker-Feldman doctrine to bar re-litigation in federal court of the propriety of a non-judicial foreclosure that had been stayed by the consumer's bankruptcy. The Rooker-Feldman doctrine holds that federal courts lack jurisdiction to review claims seeking… Read More
