Consumer Finance

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

In Pineda v. Saxon Mortgage Services, Inc. (C.D.Cal.2008) 2008 WL 5187813, Judge Selna held that a loan servicer was not subject to the FDCPA: The FDCPA only applies to to a "debt collector", which specifically excludes creditors and mortgage servicers.  15 U.S.C. 1692a(6)(F).  Saxon cites persuasive authority to support this argument.  In Perry v. Stewart Title, Co. 756 F.2d 1197… Read More

In Galindo v. Financo Financial, Inc. (N.D.Cal. 2008) 2008 WL 5170204, Judge Alsup refused to allow a consumer to pursue rescission based on Civil Code § 1632 when the consumer had refinanced the loan at issue. In her second amended complaint, Galindo alleged that that the "broker defendants failed to provide any disclosures in the Spanish language." and that "said Defendant's… Read More

In Izenberg v. ETS Services, LLC (C.D.Cal. 2008) 2208 WL 5179088, Judge Morrow held that a foreclosure trustee is not subject to the FDCPA because foreclosure on the mortgaged property is not the collection of a 'debt' under the FDCPA. To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a 'debt collector'… Read More

In Hicks v. Client Services, Inc. (S.D.Fla 2008) Case No. 07-61822-CIV-WPD, District Court Judge Dimitrouleas addressed whether a TCPA class can be certified for (i) all Florida citizens (ii) who received any telephone call from Defendant to said person's cellular telephone service made (iii) through the use of any automatic telephone dialing system or an artificial or pre-recorded voice, (iv)… Read More

Here is the draft text of the auto legislation that Congressional Democrats shared with the White House yesterday. Proposed Auto Legislation Update: 121008-revised-text Read More

In Seeger v. AFNI, Inc., -- F.3d -- 2008 WL 512416 (7th Cir. 2008), the Court of Appeals for the Seventh Circuit addressed a debt collector's contention that its reliance on periodic bulletins from the American Creditor Association ("ACA") gave rise to a 'bona fide error' defense to the plaintiff's claim that, under Wisconsin law, the debt collector could not… Read More

On November 21, 2008, Judge Illston heard argument on whether the Hobbs Act deprived her of jurisdiction to rule on the FTC's Order interpreting the TCPA.  Judge Illston granted defendant's Motion to Vacate.   See her ruling here. Read More