Consumer Finance Litigation Blog | Burr & Forman LLP

Massachusetts District Court Finds VoIP Service is Not Cellular Service Per Se Under the TCPA

Kristen Peters Watson — Wed, 06 Dec 2017 09:00:01 -0500

In Breda v. Cellco Partnership, No. 16-11512-DJC, 2017 WL 5586661 (D. Ma. Nov. 17, 2017), the plaintiff, Robin Breda ("Plaintiff") claimed Cellco Partnership ("Cellco") violated § 227(b)(1) of the Telephone Consumer Protection Act ("TCPA") by calling her cell phone number with recorded messages regarding another person's Verizon account. Under § 227(b)(1)(A)(iii) of the TCPA, calls "to any telephone number assigned to a paging service, cellular telephone service, . . . or any service for which the called party is charged for the call" made using an automatic telephone dialing ...

Federal Court Denies Class Certification in TCPA Suit Against Auto-Lender Exeter Finance

Mon, 04 Dec 2017 09:00:02 -0500

In Billy Ginwright v. Exeter Finance Corp., No. 8:16-cv-565-TDC, ECF No. 107, 2017 U.S. Dist. LEXIS 194739, 2017 WL 5716756 (D. Md. Nov. 28, 2017), a federal district court recently denied Plaintiff's motion to certify a class action under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., for calls allegedly placed to cellular telephone numbers by Defendant Exeter Finance LLC (f/k/a Exeter Finance Corp.). The Court denied certification based on its conclusion that commonality and predominance were absent from the class, because the central issue in the case ...

The So-Called "Innocent Spouse" Defense to Denial of Discharge Under 11 U.S.C. § 727(a)(3)

Wed, 22 Nov 2017 09:00:03 -0500

Under § 727(a)(3) of the Bankruptcy Code, a court shall not grant a debtor's discharge if "the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor's financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case." To prevail under § 727(a)(3) an objecting party must establish that the debtor has failed to maintain or preserve records. Once this is ...

Second Circuit Denies Petition to Rehear Decision Holding that the TCPA Does Not Permit a Consumer to Unilaterally Revoke Consent Given in a Bilateral Contract

Kristen Peters Watson — Fri, 27 Oct 2017 09:00:04 -0400

On October 20, 2017, the Second Circuit Court of Appeals denied a petition for panel rehearing, or in the alternative, for rehearing en banc of its decision in Reyes v. Lincoln Automotive Financial Services, 861 F. 3d 51 (2d Cir. 2017). By denying the petition for rehearing, the Second Circuit implicitly affirmed its holding that the TCPA does not permit a party to a bilateral contract to unilaterally revoke a contractual provision in which the party consented to receive calls.

In the underlying appeal, the plaintiff, Alberto Reyes, Jr. ("Reyes"), argued that the defendant, Lincoln ...

Federal District Court: Banks Do Not Owe a Duty of Care to Non-Customers Under Tennessee Law

Zachary D. Miller — Wed, 25 Oct 2017 09:00:05 -0400

In Belle Meade Title & Escrow Corp. v. Fifth Third Bank, et al., No. 3:17-cv-874, ECF No. 26, --- WL ---- (M.D. Tenn. Oct. 17, 2017), a federal district court granted Regions Bank's motion to dismiss the claims against it, recognizing -- in a case of first impression -- that banks do not owe a duty of care to non-customers under Tennessee law.

The plaintiff, Belle Meade Title & Escrow Corporation, is a title company that claimed to be the victim of a fraudulent check-floating/wire-transfer scheme. The plaintiff had received a check for approximately $400,000, which was drawn on an account ...

Late-Night Senate Vote Paves Way for President to Kill CFPB Arbitration Rule

Zachary D. Miller — Wed, 25 Oct 2017 09:00:06 -0400

After months of wrangling, the U.S. Senate voted to pass substantive and impactful legislation on Tuesday evening regarding the Consumer Financial Protection Bureau. On July 10, 2017, the Bureau released one of its most controversial and impactful rules to date, prohibiting certain types of arbitration agreements in contracts between consumers and certain financial services companies. Against strong industry disapproval and pushback, the Arbitration Rule reflected the Bureau's focused determination to overhaul the use of consumer arbitration and to ban reliance on ...

Eleventh Circuit: Voicemail Constitutes Communication Under the FDCPA, But Disclosure of Individual's Identity Is Not Required

Alan D. Leeth, Kristen Peters Watson — Mon, 25 Sep 2017 09:00:07 -0400

In a case of first impression, the Eleventh Circuit recently held that a voicemail constitutes a "communication" under the FDCPA, and can thus trigger the mini-Miranda requirement, but an individual collecting on behalf of a debt collector is not required to disclose his or her identity in order to comply with the "meaningful disclosure" requirement under the FDCPA.

In Hart v. Credit Control, LLC, ___ F.3d ___, 2017 WL 4216029 (11th Cir. 2017), Plaintiff Stacey Hart filed suit alleging that Credit Control, LLC's voicemail violated § 1692e(11) of the FDCPA by failing to include the ...

Eleventh Circuit Affirms Dismissal of FCRA Claim Finding that Interpretation of Act Was Objectively Reasonable

Kristen Peters Watson — Fri, 25 Aug 2017 09:00:08 -0400

In Pedro v. Equifax, Inc., --- F.3d ---, 2017 WL 3623926 (11th Cir. 2017), the Eleventh Circuit held that it was not objectively unreasonable for TransUnion, LLC to interpret section 1681e(b) of the Fair Credit Report Act ("FCRA") to allow it report an account belonging to an authorized user.

Kathleen Pedro filed a putative class action alleging that TransUnion willfully violated section 1681e(b), which requires consumer reporting agencies to "follow reasonable procedures to assure maximum possible accuracy," when it reported her parents' credit card account for which she was an ...

Aloha Cash Buyers: FinCEN Issues Advisory to Financial Institutions; Expands Geographic Tracking Order to Include Honolulu, Wire Transfers

Wed, 23 Aug 2017 09:00:09 -0400

The Financial Crimes Enforcement Network (FinCEN) announced the revision of its Geographic Targeting Orders (GTO) Tuesday. The GTO requires title insurers to report beneficial ownership information on legal entities, including shell companies, used to purchase high-end residential real estate in targeted metropolitan areas. It expanded the geographic regions covered to include the City and County of Honolulu, Hawaii and a broader range of transactions, including those involving wire transfers. The changes go into effect September 22, 2017.

FinCEN also issued ...

Florida 5th DCA Distinguishes Troublesome Hicks Opinion, and Other Statute of Limitations News

Gennifer L. Bridges — Fri, 30 Jun 2017 09:00:10 -0400

Today, Florida's Fifth DCA and Second DCA issued two seminal opinions; Klebanoff v. Bank of N.Y. Mellon, and Huntington National Bank v. Watters, which clarify the cloud of uncertainty that had engulfed the statute of limitations issue in Florida and provide a strong basis for lenders that are filing subsequent foreclosures of the same loan based on the same initial default date.

In Klebanoff, the Bank filed its foreclosure action in 2014 alleging that the Klebanoff's defaulted for failing to make the March 1, 2009 payment and all subsequent payments due thereafter. Klebanoff v. Bank ...