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In McGill v. Citibank, N.A., 2017 WL 1279700, at *1 (Cal., 2017), the California Supreme Court side-stepped whether the Broughton/Cruz rule survives Concepcion.  See Kilgore v. KeyBank, Nat. Ass'n, --- F.3d ----, 2012 WL 718344 (9th Cir. 2012) ("the Broughton–Cruz rule does not survive Concepcion because the rule “prohibits outright the arbitration of a particular type of claim”—claims for broad public… Read More

In Danehy v. Time Warner Cable Enterprise LLC, 2015 WL 5534285, at *2-3 (E.D.N.C.,2015), Judge Flanagan adopted a Magistrate's ruling on summary judgment in favor of a TCPA defendant. In his objections, plaintiff takes issue with the magistrate judge's determination that SkyCreek did not utilize an ATDS when making calls to plaintiff's telephone. The court does not reach the merits of… Read More

In Marcotte v. Bank of America, 2015 WL 2184369 (S.D. Tex. 2015), Judge Rosenthal found that an FDCPA Plaintiff failed to state a claim against a credit card issuer under the FDCPA’s “false-name” exception so as to trigger the Act against a creditor. The false name exception does not apply in this case. The billing statement from Barclays that the… Read More

In Hernandez v. W.R. Thomas, Inc., 2015 WL 112799 (Cal.App. 4 Dist. 2015), the Court of Appeal found in an unpublished decision that a consumer failed to meet its burden of demonstrating that the arbitration clause found in the standard for automobile RISC was unconscionable. After considering these submissions, the court issued an order scheduling an evidentiary hearing “on the limited issue… Read More

In two cases from the Northern District of California, Le v. Sunlan corporation, 2014 WL 296032 (N.D.Cal. 2014)and Skinner v. Mountain Lion Acquisitions, et. al., 2014 WL 314425 (N.D.Cal.), borrowers brought a suit alleging FDCPA violations and malicious prosecution against debt buyers.  The two debt buyers purchased the borrowers’ payday loans from the originating lender, and subsequently sued to collect… Read More

In Le v. Sunlan Corporation, 2014 WL 296032 (N.D.Cal. 2014), Judge Breyer awarded over $47,000 in attorneys' fees and costs to a Debt Buyer who had to defend an FDCPA claim grounded on a claim that Financial Code section 22340 (which applies to real estate backed loans) prohibited the sale of a CashCall loan.  "The Court will not revisit its holding that section… Read More

In Bradley v. Franklin Collection Service, Inc.--- F.3d ----, 2014 WL 23738 (11th Cir. 2014), the Court of Appeals for the Eleventh Circuit found that charging a percentage-based collection fee violates the FDCPA unless the instrument creating the obligation allowed it: Section 1692f prohibits unfair or unconscionable means of collection. Subsection (1) of this section specifically prohibits “collection of any amount… Read More

In Green v. Creditor Iustus Remedium, LLP, 2013 WL 6000967 (E.D.Cal. 2013), Judge O'Neill denied a debt collection law firm's Motion to Dismiss, finding the Plaintiff's Complaint to adequately state a claim under the Rosenthal Act.  First, Judge O'Neill found Plaintiff's harassment claim adequately pleaded. Defendant next argues that Plaintiff's factual allegations are insufficient to “prove the allegations of his complaint.” Doc.… Read More

"The way in which proposed rules might define “collectors” would be critical to determining the scope of the proposed rules. The Bureau is especially interested in information bearing on whether a rule under the Dodd-Frank Act would be useful to protect consumers from the conduct of creditors collecting in their own names on debts arising out of consumer credit transactions." … Read More

In Polk v. Legal Recovery Law Offices--- F.R.D. ----, 2013 WL 3147728 (S.D.Cal. 2013), Judge Whelan refused to apply the Iqbal/Twombly pleading standard to affirmative defenses.  Although Judge Whelan ultimately found the affirmative defense not adequately pleaded factually, Judge Whelan found that 'good faith' could be an affirmative defense to a Rosenthal Act claim -- unlike the FDPCA. A good faith defense… Read More

  We started this weblog with our first post exactly 5 years ago today.  In the interim, we have welcomed hundreds of subscribers from the automobile finance, debt collection, and banking industry, with more industry friends joining each week.  We have summarized close to 900 decisions in the last 5 years.  We intend to proudly continue this tradition of keeping our industry friends… Read More

In Harris v. Liberty Community Management, Inc. --- F.3d ----, 2012 WL 6604518 (11th Cir 2012), the Court of Appeals for the Eleventh Circuit found that a homeowners' association's management company was exempt from the FDCPA, so long as its collection of association dues was not central to its fiduciary obligations to the HOA. The Fair Debt Collection Practices Act (… Read More

In Cerrato v. Solomon & Solomon --- F.Supp.2d ----, 2012 WL 6621339 (D.Conn. 2012), Judge Hall found that a debt collector violated a consumer's cease-and-desist by making 8 attempts to call the customer after the cease-and-desist, even though the customer never answered any of those calls.  The Court analogized to Foti's holding that voicemail messages were 'communications' under the FDCPA, and found,… Read More

In McQueen v. American Exp. Centurion Bank, 2012 WL 5301075 (N.D.Cal. 2012), Judge James dismissed a Plaintiff's FDCPA claim on a Rule 12(b)(6) motion because the defendant was a creditor, exempt from the FDCPA. The FDCPA defines “creditor” as “any person who offers or extends credit creating a debt or to whom a debt is owed.” 15 U.S.C. § 1692a(4). The… Read More

In Transworld Leasing Corp. v. Wells Fargo Auto Finance, LLC, 2012 WL 4578591 (Tex.App.-San Antonio 2012), the Texas Court of Appeals granted summary judgment to a Bank on its Dealer Agreement whose assigning dealer in a vehicle lease transaction had leased a vehicle to an identity thief.  The facts were as follows: Transworld and Wells Fargo entered into a Master… Read More

The Court of Appeals issued its ruling yesterday.  In Evon v. Law Offices of Mickel, here, the Court of Appeals for the Ninth Circuit found deceptive the practice of sending collection letters to the debtors at their employer's address. Next, even if Mickell assumed that some debtors receive mail at their place of employment, it is not reasonable for Mickell… Read More

In McMahon v. LVNV Funding, LLC, 2012 WL 2597933 (N.D.Ill. 2012), the defendant debt collector was sued in a class action alleging that the debt collector was required to disclose that stale debt was barred by the statute of limitations and the debt collector could not sue on it.  Plaintiffs alleged that the FTC had taken the position in an unrelated… Read More

In Freeman v. ABC Legal Services, Inc., 2012 WL 2589965 (N.D.Cal. 2012), Judge Chen held in consolidated proceedings alleging multiple claims of ‘sewer’ or ‘gutter’ service of process by a debt collector that the Plaintiffs lacked Article III standing to bring a UCL claim based on the FDCPA.  The defendant collected no money from the defendants, so restitution was not… Read More

In Zemeckis v. Global Credit & Collection Corp. --- F.3d ----, 2012 WL 1650479 (7th Cir. 2012), the Court of Appeals for the Seventh Circuit addressed what constitutes puffery or material misrepresentations in a collection letter under the FDCPA.  To summarize, the Court of Appeals held that  (1) suggestions in dunning letter, for debtor to “take action now” and call “today,”… Read More

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