Consumer Finance

On September 23, 2008, we reported about the 9th Circuit BAP's ruling and treatment of negative equity in automobile retail installment contracts. AmeriCredit appealed to the Court of Appeals for the Ninth Circuit.  AmeriCredit received trade group and industry amicus support.  Review the Briefing here: Penrod -- AmeriCredit's Opening Brief  Penrod -- Trade Group Amicus Brief Penrod -- Industry Amicus Brief Read More

In Irvine v. 233 SKYDECK, LLC, --- F.Supp.2d ----, 2009 WL 347395 (N.D.Ill. 2009) Judge Leinenweber rejected a constitutional challenge to FACTA’s punitive damages provision, a challenge approved of in Grimes v. Rave Motion Pictures Birmingham, L.L .C., 552 F.Supp.2d 1302 (N.D.Ala., 2008). In Irvine, the district court held: Defendant's vagueness challenge relies on the Northern District of Alabama decision Grimes… Read More

In Piccini v. Wells Fargo Auto Finance, Inc. 2009 WL 307276 (D.Ariz. 2009), Judge Campbell of the District Court of Arizona enforced Wells Fargo’s arbitration clause to cover credit reporting claims under FCRA.  Judge Campbell explained   Plaintiff does not dispute the validity of his agreement with Wells Fargo, nor does he contend that the arbitration clause is unenforceable. Dkt. #… Read More

In Ward v. Fleetwood Motor Homes (2009) 2009 WL 311407, the California Court of Appeal in an unpublished decision denied relief to a motor home buyer under the Song Beverly Act.  The case involved engine trouble which California purchasers of an RV had with their RV while en route to Mt. Rushmore.  Caterpillar, the manufacturer of the engine, paid $2,206… Read More

In Gerber v. Citigroup, Inc. 2009 WL 248094 (E.D.Cal.2009), District Judge Moulds followed the Southern District's opinion in Sial v. Unifund CCR Partners, 2008 WL 4079281 (S.D.Cal.Aug.28, 2008), and rejected both the Norr-Pennington doctrine and the litigation privilege as defenses to a Rosenthal Act claim. This court is unpersuaded that the Noerr-Pennington doctrine bars actions under the FDCPA. Rather, this court finds… Read More

In Meyer v. Sprint Spectrum, L.P. (2009) --- Cal.Rptr.3d ----, 2009 WL 197560, the California Supreme Court held that a CLRA plaintiff must have actually been damaged in order to maintain a CLRA claim.   The case arose from the plaintiffs' lawsuit against their cellular telephone company, alleging that its arbitration agreement was unconscionable, even though plaintiffs did not allege that… Read More

In Sanai v. Saltz --- Cal.Rptr.3d ----, 2009 WL 162059 (2009), the Second District Court of Appeal declined to follow the First District Court of Appeal's decision in Liceaga on December 30, 2008, finding a private right of action under the CCRAA (Civil Code § 1785.25(a)) pre-empted by FCRA.  Instead, the Second District Court of Appeal followed the Court of… Read More

In Griffor v. Airport Chevrolet, Inc., 2009 WL 151698 (D.Or. 2009), Judge Hogan ruled on GMAC's Motion to Dismiss the plaintiff's claim for attorneys fees, which plaintiff claim was afforded by the FTC (and Oregon) Holder Rule(s).  Judge Hogan granted GMAC's Motion to Dismiss, holding: Under the FTC Holder Rule, the amount plaintiffs can recover against an assignee of a… Read More

In Lyman v. Mercedes-Benz, USA, LLC, 2009 WL 143695 (2009), the California Court of Appeal for the Fourth District held in an unpublished decision that the Song-Beverly Act does not protect a dealer who has issued special dealer plates rather than registered the vehicle under the Vehicle Code.  The Court of Appeal explained: The narrow issue in this appeal is… Read More

In Aquair Ventures, LLC v. Gulf Stream Coach, Inc., 2009 WL 150963 (N.D.Cal. 2009), Judge Conti ruled on whether a corporate purchaser of a motor home who took delivery outside the state of Calfornia could obtain protection by the Song-Beverly Act.  As to the latter, Judge Conti said yes; as to the former, Judge Conti said no.  As to a… Read More

In Van v. Grant & Weber, the Court of Appeals for the Ninth Circuit held in an unpublished decision that including in collection letters certain location obligations permitted under the Rosenthal Act does not violate the FDCPA.  The Court of Appeals explained: Van argues that this statement is misleading because California Civil Code § 1788.21(b) requires such notification only in… Read More

In Offril v. J.C.Penney, Inc., 2009 WL 69344 (N.D.Cal. 2009), Judge Hamilton held that notice by a consumer to a creditor that it was represented by counsel did not, for purposes of the FDCPA, constitute notice to the collection agency hired by the creditor to collect the debt.  Judge Hamilton explained:  Although plaintiff did not allege or argue that JC Penny's actual knowledge of… Read More

In Moya v. Chase Cardmember Services, Inc., 2009 WL 57112 (N.D.Cal.2009), Judge Zimmerman gave guidance on what constitutes a permissible "statement of account" which may be sent to consumers notwithstanding notice that the consumer is represented by counsel.  Civil Code §1788.14(c) prohibits a debt collector from initiating communications with the debtor about a consumer debt, other than to provide a statement… Read More

In Paduano v. American Honda Motor Co., Inc. (2009) 2009 WL 57806, the California Court of Appeal held that Federal law (the Energy Policy and Conservation Act) specifying the use of EPA estimates of mileage preempts breach of warranty claims based on a Hybrid vehicle's failure to achieve EPA mileage estimates.  However, the EPCA did not preempt claims under the CLRA and… Read More

In Gorman v. Wolpoff & Abramson, LLP, __ F.3d __ 2009 WL 57091 (9th Cir. 2009) the Court of Appeals for the Ninth Circuit held, among other things, that FCRA does not pre-empt Civil Code 1785.25 of the CCRAA.  This holding overrules multiple district court opinions to the contrary, and is opposite to the California Court of Appeal's decision on December… Read More

In Guy's World, Inc. v. Condon -- So.2d --, 2008 WL 5411972 (Fla.App. 2008), the Florida Court of Appeal commented on whether the TCPA allows for class actions.  The Court of Appeal found the question "important", but apparently not "important" enough to decide:   On appeal, Guy's World argues that the TCPA does not authorize class actions. This is, indeed, a much litigated issue… Read More

In Liceaga v. Debt Recovery Solutions, L.L.C. __ Cal.App.4th __ 2008 WL 5392184 (2008), the First District Court of Appeal found no private right of action under California's Consumer Credit Reporting Agencies Act because FCRA pre-empts it.  The Court explained We are not alone in our determination that the California exception is limited and does not allow a private right… Read More

In Cassaday v. Union Adjustment Company, Inc. 2008 WL 4773976 (N.D.Cal. 2008), Judge Illston followed the decision in Sial v. Unifund CCR Partners, 2008 WL 4079281, *3-5 (S.D.Cal. Aug.28, 2008) by refusing to apply the Noerr-Pennington doctrine to bar FDCPA claims.  However, Judge Illston did not follow Sial's holding that the litigation privilege does not provide a defense to FDCPA… Read More

In Mendoza v. Ruesga (2008) __ Cal.App.4th __, the Fourth District Court of Appeal declined to allow a defendant to assert an unclean hands defense to its purported violation of a consumer protection statute (in this case, California's Immigration Consultant's Act).  The Court of Appeal, relying on analogy under California's UCL, used sweeping language as to why an unclean hands… Read More

In Bickelmann v. Assil Sinskey Eye Institute (2008) 2008 WL 5207090, the Second District Court of Appeal declined to certify a 'junk-fax' class under the TCPA because its 'established business relationship' requirement necessitated individualized questions of fact, explaining: Plaintiff contends that the burden is on the drafter or sender of the advertisement, not the putative class member, to show an… Read More