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CEB Prac. Guide § 2A.17 -- Debts to which the FDCPA Apply -- Federal -- "Consumer" Requirement

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In Martin v. Pacific Parking Systems Inc., --- Fed.Appx. ----, 2014 WL 3686135 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit affirmed a denial of class certification in a FACTA—credit card digits truncation case that a class could not be certified because it could not be determined whether the cards used were consumer or business cards. The… Read More

In Davis v. Hollins Law, --- F.Supp.2d ----, 2013 WL 4863849 (E.D.Cal. 2013), Judge Karlton held that the fact that a debtor took out a business card was not dispositive of the (in)applicability of the FDCPA and Rosenthal Act.  In Davis, it was indisputed that the debtor incurred the debt on a business credit card, that the credit card was… Read More

In Bank of America, N.A. v. Sea-Ya Enterprises, LLC, 2013 WL 126268 (D.Del. 2013), Judge Andrews found that the purchase of an aircraft was not primarily for personal, family, or household purposes, thus allowing a Bank to pursue a post-repossession/post-sale deficiency balance notwithstanding purported irregularities in the liquidation sale notices. This suit is a loan deficiency action brought by Plaintiff… Read More

In Smith v. EVB, 2011 WL 2689061 (4th Cir. 2011), the Court of Appeals found a mixed-use commercial/consumer debt to possibly be subject to the FDCPA.  The loan transactions were as follows: According to Smith, the purpose of the 2004 loan was the purchase and ownership of Smith's per-sonal residence (“the Wilton House”). Smith con-tends that he created Piedmont for the sole… Read More

In Archer v. United Rentals, Inc. --- Cal.Rptr.3d ----, 2011 WL 1888199 (2011), the California Court of Appeal reversed a class certification under the Song-Beverly Credit Card Act on the basis that meeting the consumer-use requirement was an intensely fact driven inquiry.   The decision is too lengthy to reproduce here, even in part, but the Court of Appeal’s summary is… Read More

In Booth v. Mee, Mee & Hoge, P.L.L.C.,  2010 WL 988473 (W.D.Okla. 2010),  Judge DiGiusti applied a narrow reading of the Ninth Circuit’s holding in Slenk, and determined a debt’s ‘consumer purpose’ at the time of debt origination rather than a later consumer use of the collateral.  Judge DiGiusti explained:   Courts construing the FDCPA have generally held, however, that… Read More

In Pollock v. Bay Area Credit Service, LLC, 2009 WL 2475167 (S.D.Fla.,2009), Judge Dimitrouleas refused to apply the Rosenthal Act extraterritorially, meaning to non-California debtors against whom debt collection was performed by a California LLC.  Judge Dimitrouleas explained:   The Court would note that commentary on the Rosenthal Act's protection discusses it in terms of debt collection within the state:… Read More

In a decision of probably more personal than professional importance, Judge Pregerson held that Law Enforcement System's Inc.'s collection outstanding toll violations on Hwy 91 was not subject to the FDCPA.  (Yazo v. Law Enforcement Systems, Inc. (C.D.Cal.2008) 2008 WL 4852965).  Hwy. 91, for those non-southern-Californians, is a toll road which connects the Orange County beach cities to San Bernardino and… Read More

It's not an automobile case, but is interesting for statements of law applied.  In Galindo v. Financo Financial, Inc., 2008 WL 4452344 (N.D.Cal. 2008), Judge William Alsup required strict compliance with the CLRA's pre-filing notice requirement: California courts require “strict” compliance with Section 1782. Outboard Marine Corp. v. Superior Court, 52 Cal.App.3d 30, 40-41, 124 Cal.Rptr. 852 (1975). Plaintiffs filed the… Read More

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