In Borden v. Efinancial, Ltd. Liab. Co., No. 21-35746, 2022 U.S. App. LEXIS 31613, at *3-4 (9th Cir. Nov. 16, 2022), the Court of Appeals for the 9th Circuit found that to be an ATDS, the system must randomly or sequentially generate telephone numbers, not other sorts of numbers. So a system that selects telephone from a previously entered list… Read More
In Jeffrey Chong v. Bank of Am., N.A., No. 22-00151 JMS-KJM, 2022 U.S. Dist. LEXIS 203101, at *2-5 (D. Haw. Nov. 8, 2022), Judge Seabright found no waiver of arbitration of an FCRA case under the SCOTUS' decision in Morgan. In the Ninth Circuit (until recently), "[a] party seeking to prove waiver of a right to arbitration must demonstrate: (1)… Read More
In Beard v. John Wester Chevrolet, LLC, No. 5:21-CV-173-D, 2022 U.S. Dist. LEXIS 204379, at *7-9 (E.D.N.C. Nov. 9, 2022), Judge Dever found that ringless voicemail technology is a 'call' under the TCPA. Although only a few courts have addressed whether a ringless voicemail is a call under the TCPA, every court that has addressed this question has held that… Read More
In Hylton v. Titlemax of Va., Inc., No. 4:21-cv-163, 2022 U.S. Dist. LEXIS 202470, at *8 (S.D. Ga. Nov. 7, 2022), Judge Baker denied a TCPA defendant's summary judgment in a re-assigned number case. Titlemax argues that summary judgment is warranted because Jennings consented to Titlemax calling the 7270 Number concerning his account. (Doc. 65-1, pp. 7-9.) This argument fails.… Read More
In Scarbo v. Wisdom Fin., No. 22-1398, 2022 U.S. App. LEXIS 31020, at *9 (3d Cir. Nov. 9, 2022), the Court of Appeals for the 3rd Circuit held that a furnisher conducted a reasonable investigation as a matter of law. We conclude that the District Court properly granted summary judgment in favor of LVNV and Great Lakes on Scarbo's claims… Read More
In Church v. Collection Bureau of the Hudson Valley, Inc., Civil Action No. 20-3172 (SDW)(LDW), 2022 U.S. Dist. LEXIS 201523, at *9 (D.N.J. Nov. 4, 2022), Judge Wigenton allowed an FDPCA class representative to limit the class to a single zip code. In this case, Plaintiffs seek to certify the following classes: (1) all New Jersey residents who received a… Read More
In Concha v. Debt Recovery Res., No. CV 22-2842 PA (MARx), 2022 U.S. Dist. LEXIS 201558, at *6-8 (C.D. Cal. Nov. 2, 2022), Judge Anderson exercised jurisdiction over a counter-claim on the debt against an FDCPA Plaintiff because the FDCPA claim was related to the debt itself. A number of district courts in the Ninth Circuit have found that actions… Read More
In Miller v. Westlake Servs. LLC, No. 8:21-cv-00692-JLS-KES, 2022 U.S. Dist. LEXIS 197076, at *21-30 (C.D. Cal. Oct. 28, 2022), Judge Staton granted partial summary judgment to an FCRA Plaintiff who claimed that she was a victim of identity theft. First, the Court declines Plaintiff's invitation to rule that "solely engaging in data conformity" renders a furnisher's investigation per se… Read More
In Fitzpatrick v. Capital One Bank United States N.A., No. 2:22-cv-00312-MCE-DB, 2022 U.S. Dist. LEXIS 196670, at *7-9 (E.D. Cal. Oct. 28, 2022), Judge England dismissed a class action premised on the alleged unlawful charging of late fees during the pandemic. The Agreement explicitly permits Defendant to charge the fees challenged in this case. Accordingly, Plaintiff contends instead that: (1)… Read More
In Dhital v. Nissan N. Am., Inc., No. A162817, 2022 Cal. App. LEXIS 887, at *11-22 (Ct. App. Oct. 26, 2022), the California Court of Appeal found that the economic loss rule did not bar a fraudulent inducement claim so long as the claim was completely separate and apart from the Song-Beverly warranty claim. As noted, the trial court sustained… Read More
In Figueroa v. Us, No. B306275, 2022 Cal. App. LEXIS 883, at *4-9 (Ct. App. Oct. 25, 2022), the Court of Appeal held that a lemon law plaintiff who sold his lemon vehicle for a $3,000 profit got to keep the money. Subparagraph (B) establishes the amount of restitution FCA must pay. (§ 1793.2, subd. (d)(2)(B).) "[T]he manufacturer shall make… Read More
In Angulo v. Truist Bank, No. 22 C 923, 2022 U.S. Dist. LEXIS 193573, at *8 (N.D. Ill. Oct. 25, 2022), Judge Kendall granted a motion for judgment on the pleadings against an FCRA Plaintiff. The intangible humiliation and embarrassment of credit denial may also be considered a concrete injury in the FCRA context. In passing the FCRA, Congress found,… Read More
That California legislature last year passed last year SB 531, which became effective July 1, 2022, imposing additional validation requirements on certain debt collectors under the Rosenthal Act. The bill was designed to do as follows: This bill would require a debt collector to which delinquent debt, as defined and specified, has been assigned to provide to the debtor, upon… Read More
On October 20, the FTC announced an NPR with respect to “junk fees”, noting The FTC is concerned that junk fees are common in many sectors of the U.S. economy. The advance notice of proposed rulemaking announced today seeks public comment on the harms stemming from junk fees and associated junk fee practices and on whether a new rule would… Read More
In Valerio's Auto Sales v. Flowers, No. 1210295, 2022 Ala. LEXIS 102 (Oct. 21, 2022), the Alabama Supreme Court reversed the trial court’s denial of a car dealer’s petition to compel arbitration. In support of its motion to compel arbitration, Valerio's submitted to the trial court a copy of the contract Flowers signed when she purchased her vehicle; that contract… Read More
In Wakefield v. ViSalus, Inc., No. 21-35201, 2022 U.S. App. LEXIS 29228 (9th Cir. Oct. 20, 2022), the Court of Appeals held that aggregation of the TCPA’s penalties to $925 million raised due process concerns. ViSalus last argues that the Due Process Clause of the Fifth Amendment requires a reduction of the $925,220,000 statutory damages award. HN8 Whether a damages… Read More
In Ramirez v. Midland Credit Mgmt., Inc., No. 22-cv-02772-VC, 2022 U.S. Dist. LEXIS 191894 (N.D. Cal. Oct. 20, 2022), Judge Chhabria dismissed a Rosenthal Act case premised on the sale of the debt. Ramirez alleges that Capital One violated section 1692e of the FDCPA, which prohibits debt collectors from using "false, deceptive, or misleading representation or means in connection with… Read More
You have a pretty good idea where the decision is going to go when it starts with this sentence from James Madison in the Federalist Papers: An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced… Read More
In Collectional Pros., Inc. v. McDonough Dist. Hosp., No. 4:22-cv-04078-SLD-JEH, 2022 U.S. Dist. LEXIS 187320, at *8 (C.D. Ill. Oct. 13, 2022), Judge Darrow found no federal question in an FDCPA Plaintiff's challenge to the propriety of a dunning letter that purported to follow Reg. F's model form. Though certainly a policy against abusive debt collection is important, the Court… Read More
In Loury v. Westside Auto. Grp., 2022-Ohio-3673, ¶¶ 28-32 (Ct. App.), the Court of Appeals found no error in a car dealer repossessing a vehicle after a 30-day contract period within which it was supposed to obtain financing. As previously stated, the parties' Conditional Delivery Agreement provides that Loury is entitled to take immediate possession of the car while Westside… Read More
