In Yovan v. Lithia Motors, Inc. --- P.3d ----, 2009 WL 704737 (Or.App. 2009), the Oregon Court of Appeal reviewed a trial court’s remittitur of a $100,000 punitive damages verdict arising out of a dispute surround a car dealer’s sale of a vehicle. This case involves a complaint filed by plaintiff to rescind defendant's purchase of a car from… Read More
On January 12, 2009, Paul D. S. Edwards filed a petition with the FCC for an expedited clarification and declaratory ruling regarding the Commission’s rules under the Telephone Consumer Protection Act (TCPA). Specifically, Edwards asks the Commission to clarify whether a creditor may place autodialed or prerecorded message calls to a telephone number associated with wireless service that was provided to… Read More
In Okefenokee Aircraft, Inc. v. Primesouth Bank, 2009 WL 724113 (Ga. App. 2009), the Georgia Court of Appeal was asked to address whether the UCC prohibited entry of judgment in favor of a creditor on a contractual balance notwithstanding the fact that the creditor had repossessed, but not yet sold, the collateral. The Court concluded that “a secured creditor can… Read More
In Allers-Petrus v. Columbia Recovery Group,C08-4433FDB (D.Or. 2009), Judge Burgess held that a debtor's failure to disclose a pending FDCPA claim in her Ch. 13 Bankruptcy schedules judicially estopped her from bringing those claims later in the district court. Nor could the debtor re-open her bankruptcy to cure the issue. Judge Burgess explained: Plaintiff Allers-Petrus filed her bankruptcy petition with… Read More
In Robinson v. Equifax Information Services, Inc. __ F.3d __ (4th Cir. 2009), the Court of Appeals for the Eight Circuit affirmed in part a jury verdict against a credit reporting agency for $200,000 in actual damages under FCRA. The facts arose out of an identity theft situation: In April 2000, Robinson discovered that a woman named Nicole Antoinette… Read More
In Satterfield v. Simon and Schuster, 2007 WL 1839807 (N.D.Cal. 2007), Judge Wilken addressed what constitutes an “automatic telephone dialing system” and what constitutes “consent” under the TCPA. The case arose from promotional text messages sent to cellular telephones regarding a new Steven King novel “Cell”. The cellular telephone owners received the messages because they signed up for nextones.com to… Read More
In Rowe v. Educational Credit Management Corporation, 2009 WL 692006 (9th Cir. 2009), the Court of Appeals ruled on whether the Plaintiffs had pleaded a claim under the FDCPA against ECMC – a guaranty agency under the Higher Education Act of 1965 – or whether ECMC was exempt because its collection activity was “incidental to a bona fide fiduciary obligation.” … Read More
The Court of Appeals for the Ninth Circuit today allowed the National Association of Screening Agencies, the California Bankers Association, and the Consumer Data Industry Association leave to file amicus curiae briefs in support of Defendant-Appellee’s Petition for Rehearing and Rehearing En Banc. See the Order here and my article here regarding the split of authority between the federal and state appellate… Read More
In Drew v. Equifax, 2009 WL 595459 (N.D.Cal. 2009), Judge Illston held that a furnisher was on notice of a consumer dispute when the CRA merely sent a letter to the furnisher notifying the furnisher that it had deleted the customer’s trade-line because the account was fraudulent. Judge Illston explained: Chase contends that it is entitled to summary judgment… Read More
See my March 4, 2009 article in the Consumer Financial Services Law Report 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
In Kwikset Corp. v. Superior Court, __ Cal.App.4th __ (2009), the Fourth District Court of Appeal denied relief under the UCL for a party who purchased Kwikset locks but claimed it was misled by Kwikset's "Made in U.S.A. label". The Court of Appeal stated: Absent a showing of some complaint about the cost, quality, or operation of the mislabeled locksets… Read More
In Hahn v. Triumph Partnerships, LLC, the Court of Appeals for the Seventh Circuit held that the FDCPA's prohibition against "false, deceptive, or misleading representation or means in connection with the collection of any debt" under 15 U.S.C. 1692e requires materiality. In ruling on whether the debt collector had properly disclosed the debt and attendant interest, the Court of Appeals… Read More
The Federal Trade Commission today released the list of top consumer complaints received by the agency in 2008, identity theft topping the list. See the FTC Press Release: http://www.ftc.gov/opa/2009/02/2008cmpts.shtm FTC also issued its Annual Report to Congress, and urged modernization of Federal Debt Collection Law See the FTC Press Release: http://www.ftc.gov/opa/2009/02/fdcpa.shtm The FTC suggested many changes, including (1) Requiring… Read More
In In re On-Star Contract Litigation, 2009 WL 415990 (E.D.Mich. 2009), Judge Cox allowed a claim to proceed as pleaded under the CLRA, denying an FRCP 12(b)(6) Motion. The Plaintiffs allege that In 2002 Defendants' OnStar equipment relied on analog cellular signals to function.”(MAC at 4).“In August 2002, the Federal Communications Commission (“FCC”) ruled that cellular telephone companies need not… Read More
In Zimmerman v. Bank of America, , 2009 WL 418606 (N.D.Miss 2009), Judge Mills ruled on what constitutes a “reasonable investigation” by a furnisher after it receives a consumer dispute verification from a credit reporting agency which gives notification of such dispute by the consumer. Judge Mills found the question of “reasonableness” best left to Mississippi juries. The Fifth… Read More
In Wahl v. Midland Credit, Inc. --- F.3d ----, 2009 WL 426055 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit addressed whether a debt collector used a false and deceptive means to collect a debt because it included in the “principal” balance amounts which the original creditor levied as “interest”. The Court of Appeals described Plaintiff’s argument… Read More
In Berry v. Indianapolis Life Ins. Company, 2009 WL 424549 (N.D.Tex. 2009), Judge Boyle found the CLRA inapplicable to insurance products. Judge Boyle explained: Indianapolis Life also argues that the Complaint fails to state a claim based on the alleged violation of the CLRA, because the CLRA applies only to the “sale or lease of goods and services.” Cal.… Read More
Not California, but in Fitts v. King Richard’s Auto Sales, Inc. 2009 WL 256379 (D.R.I. 2009), Judge Lisi held that an automobile dealer properly disclosed trade-in negative equity by increasing the cash price of the vehicle purchased. The Court explained: The parties agree that Plaintiffs had negative equity in the Taurus. TILA does not require that negative equity in… Read More
In Rudek v. Frederick J. Hanna & Associates, P.C. 2009 WL 385804 (E.D.Tenn.2009), Judge Collier ruled on what constitutes proper verification of a debt in response to a debt collector’s 30 day letter under 15 U.S.C. § 1692g(b). Judge Collier held that independent validation requiring proving the merits of the obligation is not required: Defendant contends it complied with… Read More
In Wold v. Dell Financial Services, L.P., 2009 WL 397235 (D.Minn. 2009), Judge Davis ordered a FCRA claim to arbitration due to an arbitration clause contained in Dell’s computer purchase agreement. Wold argues that the arbitration clause at issue in this case is unconscionable because, if enforced, it would require him to take his federally-protected claims to arbitration rather… Read More
