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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 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

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

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