The Consumer Credit and Debt Protection Act, introduced by Bobby Rush (D. Ill) on May 7, 2009, and co-sponsored by Doris Matsui (D. Cal.) and Janice Schakowski (D. Ill), currently is pending before the House of Representatives. (H.R. 2309) Section 2 of the Bill would authorize the FTC to regulate automobile sales: (2) AUTOMOBILE SALES- The Federal Trade Commission shall… Read More
In early may, the SBA expanded eligibility for its 7(a) loan guarantee program. On May 29, the SBA announced a pilot program to, for the first time — provide eligible car dealers with government-backed lines of credit to finance their automobile and RV vehicle inventory. SBA 5.28.09 Press Release Read More
On May 28, SB 98 passed Committee by a vote of 7-5. This bill (1) would enact the California Car Buyers Protection Act of 2009. This bill increases from $50,000 to $100,000 the bond required of a vehicle dealer for issuance or renewal of a dealer's license by the Department of Motor Vehicles (DMV); (2) provides that a person who… Read More
In Marlin v. Chase Cardmember Services, Inc. 2009 WL 1405196 (E.D.Cal. 2009), Judge Beck held that, in an FDCPA case, a counter-claim for the debt is permissive, rather than compulsory. Judge Beck explained: However, although the Ninth Circuit has not specifically decided whether a counterclaim for the underlying debt in an FDCPA action is compulsory or permissive, most, if… Read More
In In re: Jamster Marketing Litigation, 2009 WL 1456632 (S.D.Cal. 2009), Judge Miller ruled on whether a Wireless Provider could be held vicariously liable under the CLRA and UCL for alleged misleading advertising by Content Providers. While a bit far afield from auto finance, the point of law is pertinent as to whether defendants sued under such legal theories may… Read More
In Clark v. Superior Court, --- Cal.Rptr.3d ----, 2009 WL 1414903 (2009), the Court of Appeal for the Second District was asked to decide the following question: Civil Code section 3345 (section 3345) authorizes the award of an enhanced remedy-up to three times greater than the amount of a fine, civil penalty “or any other remedy the purpose or… Read More
For our auto finance colleagues who, like us, also work in the mortgage industry, we post here our summary of the recently-enacted 2009 Foreclosure Prevention Act. 2009 California Foreclosure Prevention Act For more information, contact Sunny S. Huo at (415) 677-5519 or ssh@severson.com or any of the Financial Services Group attorneys. Read More
In Jones v. Midland Funding, LLC, --- F.Supp.2d ----, 2009 WL 1385140 (D.Conn. 2009), District Judge Martinez ruled on whether a debt collector could offer the testimony of a renowned author of a treatise on the FDCPA that collection letters were consistent with industry standards. The defendants offer Newburger as an expert “who will be called to provide an… Read More
The California Supreme Court issued a landmark B&P Code 17200 case today in In re: Tobacco II Cases. How these rules affect auto finance class actions remains to be seen. The holding of the decision was as follows: On review, we address two questions: First, who in a UCL class action must comply with Proposition 64's standing requirements, the class… Read More
In Wideman v. Monterey Financial Services, Inc., 2009 WL 1292830 (W.D.Pa. 2009), Magistrate Judge Hay held that an obtuse e-mail sent to a third party about a debtor could state a claim for third party disclosure violation under the FDCPA. In Wideman, the Plaintiff claimed that the debt collector violated § 1692c(b) when it left a message with the plaintiff’s… Read More
In Galicia v. Country Coach, Inc. 2009 WL 1144224 (9th Cir. 2009), an unpublished opinion, the Court of Appeals for the Ninth Circuit held that deliver of an RV outside the state of California prevented application of the Song-Beverly Consumer Warranty Act to the transaction. The district court did not err in granting McMahon's summary judgment. The Galicias' Song-Beverly… Read More
The FTC recently added a web page to offer assistance to businesses attempting to comply with its Red Flag identity theft rules. http://www.ftc.gov/redflagsrule Read More
In Marshall v. Swift River Academy, 2009 WL 1112768 (9th Cir. 2009), the Court of Appeals for the Ninth Circuit confirmed (for the third time) that 15 USC 1681s-2(a) affords no private right of action. Marshall may not maintain a claim under the FCRA for violation of Section 1681s-2(a), which imposes certain duties on those who furnish information to… Read More
In Piontek v. IC System, Inc. 2009 WL 1044596 (M.D.Pa. 2009), Judge Rambo held that a Plaintiff seeking emotional distress damages put at issue other lawsuits she had filed. Here, Plaintiff's motivation for her actions giving rise to the suit, or for bringing the suit, are irrelevant to the issue of whether Defendants violated the FDCPA through their dealings… Read More
In Fairbanks v. Superior Court, 2009 WL 1035264 (2009), the California Supreme Court held that life insurance is neither a “good” nor a “service” subject to the CLRA. The Supreme Court explained: The Consumers Legal Remedies Act defines “goods” as “tangible chattels bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for… Read More
In Hepler v. Washington Mut. Bank, F.A., 2009 WL 1045470 (C.D.Cal. 2009), Judge Snyder held that a mortgage company foreclosing on a home was not subject to either the FDCPA nor the Rosenthal Act, explaining: To be held liable for violation of the FDCPA, a defendant must-as a threshold requirement-fall within the FDCPA's definition of “debt collector.” See Heintz… Read More
The new rules can be found here: http://www.jamsadr.com/rules/class_action.asp Read More
In In re: Saunders, Judge Rodriguez ruled in favor of an auto finance company's claim regarding negative equity financed into an automobile purchase transaction, holding that The Court thus concludes that the hanging paragraph applies to FMC’s claim regardless of whether the charge for negative equity constitutes a purchase-money obligation. Nevertheless, the FMC’s purchase-money security interest encompasses the amount financed for… Read More
In Pickering v. Coast Center for Orthopedic Arthroscopic Surgery, 2009 WL 932629 (2009), the California Court of Appeal for the Fourth District, in an unpublished decision, reviewed a jury’s finding that an orthopedic doctor’s group was liable under the FDCPA notwithstanding its status as a creditor. The Court of Appeal affirmed the jury’s finding that the doctor’s group’s retention of… Read More
