Evidence

In Richmond v. Medicredit, Inc., No. 5:21-CV-00068-KDB-DSC, 2022 U.S. Dist. LEXIS 130092, at *8 (W.D.N.C. July 22, 2022), Judge Bell denied an FDCPA defendant's summary judgment motion. The Court finds that there is a genuine issue of material fact as to whether Medicredit reported Richmond's debts as disputed to the credit reporting agencies ("CRAs"). The FDCPA protects consumers from certain… Read More

In In re Marriott Int'l Customer Sec. Breach Litig., No. 19-MD-2879, 2021 U.S. Dist. LEXIS 48477, at *57-68 (D. Md. Mar. 15, 2021), the Court recommended that although the class representative's device could be examined for other malware, the device could not be examined for whether the representative had good cyber-security habits. Marriott's protocol seeks inadmissible evidence and that even… Read More

In Ct102 Llc v. Nextgear Capital, No. 20A-CC-1909, 2021 Ind. App. Unpub. LEXIS 223, at *3-5 (Ct. App. Mar. 19, 2021), the Court of Appeals affirmed the trial court's finding of damages sustained by a floorplan lender. The facts and procedure were as follows: On remand, the trial court held an evidentiary hearing on damages on October 6, 2020. Tr. Vol.… Read More

In Dalessandro v. Mitchel, No. BC293472, 2019 Cal.App.LEXIS 1309 (Ct.App. Dec. 17, 2019), the Court of Appeal said that service is ineffective by proof of mailing unless there is proof that the mailing was properly paid for. We conclude the trial court did not err in denying the motion to compel. The trial court found service of the demand to… Read More

In Berroteran v. Superior Court, No. B296639, 2019 Cal. App. LEXIS 1065 (Ct. App. Oct. 29, 2019), the Court of Appeal permitted admission of prior deposition testimony from an automobile manufacturer’s employee where the manufacturer allegedly had motive and opportunity to examine their own witness in the prior case(s). Except for Wahlgren, California law is consistent with federal law. Section… Read More

In Bank of Am., N.A. v. Byrd, No. G056792, 2019 Cal. App. Unpub. LEXIS 7176 (Oct. 28, 2019), Bank of America, N.A. (the Bank) sued Pamela K. Byrd to recover over $32,000 in credit card debt. The trial court found the Bank's last credit card statement to Byrd constituted a final rendering of the account, and Byrd impliedly agreed to pay… Read More

In Johnson v. Capital One Servs., LLC, No. 18-cv-62058-BLOOM/Valle, 2019 U.S. Dist. LEXIS 178160, at *3-4 (S.D. Fla. Oct. 15, 2019), Judge Bloom found a TCPA Plaintiff's handwritten call-logs to be admissible as a party-opponent admission.  (For you trial lawyers out there, they probably could at least have been referred to under FRE 612 to refresh the witness' recollection, anyway).… Read More

In Williams v. Enhanced Recovery Co., LLC, No. 18-cv-03699-HSG, 2019 U.S. Dist. LEXIS 137631 (N.D. Cal. Aug. 14, 2019), Judge Gilliam granted summary judgment to a debt collector. The Court finds that ERC has carried its burden to establish an entitlement to the bona fide error defense, and the Court thus does not consider whether there is a material dispute… Read More

In Cavalry SPV I, LLC v. Watkins, No. D072299, 2019 Cal. App. LEXIS 603, at *12-15 (Ct. App. July 1, 2019), the California Court of Appeal addressed the evidence necessary to prove up a credit card debt in a debt collection action. Assuming without  deciding that California law applies, a party may accept a contract by conduct, as well as… Read More

In Scott v. Monterey Financial Services, LLC., 2018 WL 452359, at *2 (N.D.Ind., 2018), Judge Simon found a triable issue of fact sufficient to defeat summary judgment because, in part, of discrepancies in the defendant's call logs and business records. Scott attempts to cast doubt on the reliability of Monterey’s records of the call history by presenting evidence of the omission… Read More

In Casto v. Branch Banking & Trust Company, 2018 WL 265586, at *1–13 (S.D.W.Va., 2018), Judge Chambers denied a Bank's summary judgment seeking to dispose of a TCPA claim, in part, finding problems with Defendant's "mail-box" rule argument with respect to when the Defendant's agent received the written revocation. Indeed, Defendant vies for summary judgment upon the receipt date of the… Read More

In Unifund CCR LLC v Dear, the California Superior Court -- Appellate Division clarified the standards that a debt collector declarant must meet to prove up a debt as a business record. Read More

In Smith v. Law Offices of Patenaude & Felix, A.P.C., 2014 WL 3695473 (S.D.Cal. 2014), Judge Hayes found that a debtor must plead by clear and convincing evidence that the debtor did not receive a debt validation letter from the debt collector. Congress enacted the FDCPA to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting… Read More

In a case that does not involve personal property finance, but which could have far reaching implications in personal property sales and finance litigation, the California Supreme Court held in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn., 2013 DAR 561 (2013), that parol evidence is admissible to prove promissory fraud, whether or not the promise directly contradicts the parties'… Read More

In Ford Motor Credit Co. LLC v. Harris, --- S.W.3d ----, 2012 WL 5464340 (Mo.App. S.D. 2012), the Missouri Court of Appeal affirmed a trial court’s finding that the sale of a vehicle at auto auction was commercially reasonable. The Court had some troubling language regarding the auto finance company’s ability to offer custodian-of-records testimony as to documents that it… Read More

A copy of the Baltazar decision is here. Read More

In Drew v. Equifax Information Services, LLC --- F.3d ----, 2012 WL 3186110 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a furnisher could have violated its statutory duty under FCRA to block all reporting following its investigation of the consumer's identity theft claim.  A consumer had reported to a credit bureau that his identity had… Read More

In Pace v. Portfolio Recovery Services, LLC, 2012 WL 2398024, (W.D.Mo. 2012),  here, Judge Sachs held that a Plaintiff who gave ambiguous testimony on mailing of a Cease and Desist letter under FDCPA was not entitled to the presumption of the mailbox rule wherein delivery is presumed. Whether plaintiff can create a jury issue over adequately having given written notification to… Read More

In HSBC Bank Nevada, N.A. v. Aguilar, --- Cal.Rptr.3d ----, 2012 WL 1813379 (Cal.Super.A.D. 2012), the Appellate Division of the Superior Court required the superior court clerk to enter default judgments in debt collection cases.  Once a default has been entered on proper service of process, no further prove-up is necessary and the court clerk’s requirement as a condition of… Read More

Hostility exists with regard to the use of secondary evidence to collect debts.  Remember McCullough, where the Court of Appeals for the Ninth Circuit rejected the claim that secondary evidence of forms containing an attorneys' fees clause was insufficient to justify a claim for attorneys' fees?  Recently, the Missouri Supreme Court held that a debt assignee's secondary testimony was insufficient… Read More