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Dear 'blog Users, Our state and federal appellate courts in California just haven't been that busy on issues facing us recently.  Perhaps that's a good thing.  It's not that we haven't been checking; we just haven't seen good, blog-worthy cases to fill your email box with.   We did not want to get to the end of the Holiday Season without giving thanks… Read More

In Nichols v. GC Services, LP, 2009 WL 3488365 (D. Ariz. 2009), the United States District Court for Arizona addressed purported threats regarding what the debt collector may or may not do:   In determining whether a threat has been made, “the conditional nature of a statement, such as the use of the words ‘may’ or ‘possible,’ does not negate… Read More

Here's the short ruling:  red-flag-rule-15-amended-order.   The FTC today issued an amended Red Flag Rule here.  The FTC also delayed its enforcement of the Rule until June 1, 2010:    FTC Extends Enforcement Deadline for Identity Theft Red Flags Rule. At the request of Members of Congress, the Federal Trade Commission is delaying enforcement of the "Red Flags" Rule until June… Read More

Today, the Financial Services Committee approved legislation that will establish a new, independent federal agency solely devoted to protecting Americans from unfair and abusive financial products and services.   The Committee's press release states as follows: As called for by President Obama, the Consumer Financial Protection Agency (CFPA) represents one of the most significant efforts by Congress to bring about long… Read More

The Court of Appeals for the Ninth Circuit re-issued its Gorman decision, following re-hearing petitions filed by industry, with mere commentary in footnotes.  With these amendments, the panel unanimously has voted to deny Appellant’s petition for rehearing en banc and Appellee’s petition for panel rehearing and petition for rehearing en banc.  The full court has been advised of the petitions… Read More

In Edwards v. Niagara Credit Solutions, Inc.  2009 WL 3273300 (11th Cir. 2009) the Court of Appeals for the 11th Circuit decided the validity of a debt collector's concerns that complying with the mini-Miranda requirement of the FDCPA risked violating the FDCPA's prohibition against third party disclosure.  Or, as the Court of Appeals described it, whether the debt collector "had… Read More

In VanDyke v. Northern Leasing System, Inc., 2009 WL 3320464 (E.D. Cal. 2009), Judge Hollows held that a transaction for software to be used primarily in a small business was not subject to the FDCPA, explaining:   The amended complaint also concedes that plaintiff contracted with defendant to lease “virtual terminal software.” ( Id.) Although plaintiff does not specifically allege… Read More

In Tietsworth v. Sears, Roebuck and Co., 2009 WL 3320486 (N.D.Cal. 2009), Judge Fogel explained,   As a threshold matter, the parties disagree with respect to whether Plaintiffs' UCL and CLRA claims are subject to the heightened pleading requirements of Rule 9(b). This issue was addressed by the Ninth Circuit in Kearns v. Ford Motor Co., 567 F.3d 1120 (9th… Read More

In Fariba v. Dealer Services Corp., 2009 WL 3191538 (2009), the California Court of Appeal for the Fourth District held that a floorplan lender's security interest was subordinate to an automobile wholesaler's ownership interest because, under consignment law, the floorplan lender knew that the defunct dealer dealt in consignment sales.  The facts were as follows: Plaintiff Behyar Fariba is an automobile… Read More

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