Consumer Finance Litigation Blog | Burr & Forman LLP

The Consumer Finance Outlook Under a Biden Administration

Rachel R. Friedman — Tue, 24 Nov 2020 09:00:01 -0500

When President-elect Joe Biden takes office in January, it is safe to bet that addressing the pandemic-related financial pressures facing millions of Americans will be at the top of his agenda. And in particular, the administration is expected to focus on consumer finance, which should give renewed energy and purpose to the Consumer Financial Protection Bureau, an agency the Trump administration all but grinded to a halt.

Pursuant to a recent Supreme Court ruling that gives the President the right to remove the head of the CFPB at will, President-elect Biden will be able to select a new ...

District of Kansas Holds a Device that Dials from Stored Customer Database is Not an ATDS

Kristen Peters Watson — Mon, 17 Aug 2020 09:00:02 -0400

On April 13, 2020, the District Court of Kansas in Hampton v. Barclays Bank Delaware, No. 18-4071-DDC-ADM, 2020 WL 4698476 (D. Kan. Aug. 13, 2020), joined the Seventh and Eleventh Circuits in holding that devices that exclusively dial numbers stored in a customer database do not qualify as autodialers under the TCPA.

The Plaintiff, Anthony Hampton ("Plaintiff"), asserted numerous claims against multiple defendants, including a TCPA claim against Marketplace Loan Grantor Trust, Series 2016-LD1's ("Marketplace"). Specifically, Plaintiff claimed Marketplace violated the ...

TCPA Breaking News: The Sixth Circuit Sides With Marks, as the Supreme Court Readies to Step In

Zachary D. Miller — Wed, 29 Jul 2020 09:00:03 -0400

This summer has been jam-packed with Telephone Consumer Protection Act (TCPA) developments. The Federal Communications Commission (FCC) issued a decision finding that peer-to-peer text messaging systems were exempt from the statue’s reach, using certain language that may be helpful in arguing to exclude other types of technology.[1] The U.S. Supreme Court declared the statute unconstitutional in Barr v. American Association of Political Consultants, Inc.,[2] only to determine that the unconstitutional provision was severable, thus saving the statute and, in fact ...

Bankruptcy Court Declares Prohibition Against Debtors in Bankruptcy from Participating in Paycheck Protection Program Unenforceable

Mark H. Tyson — Thu, 25 Jun 2020 09:00:04 -0400

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in effort to provide support and economic relief to organizations and individuals during the Coronavirus pandemic. Pursuant to the CARES Act, Congress established the Paycheck Protection Program (PPP) to assist small businesses and self-employed individuals retain workers, cover operating costs, and maintain payroll. The Small Business Administration (SBA) backs the PPP, and is responsible for forgiving said loans if borrowers maintain payroll for eight (8) weeks and use the money ...

Suttles v. Facebook, Inc. The ATDS Debate Continues but a Texas District Court Provides Hope for the Industry in The Fifth Circuit

Frank Springfield — Thu, 21 May 2020 09:00:05 -0400

The Fifth Circuit Court of Appeals may now have to decide where it stands on the ATDS issue. On May 20, 2020, Judge Lee Yeakel of the United States District Court for the Western District of Texas issued an opinion in Suttles v. Facebook, Inc., Case No. 1:18-cv-01004 (W.D. Tex. May 20, 2020), where he concluded that a dialing system is not an Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) if it does not produce numbers. A copy of the opinion can be read here.

Three circuit courts have previously held that the definition of an ATDS ...

Michigan Court Grants Injunctive Relief Against SBA Regarding Ineligibility Criteria for Loans to Small Businesses

Mark H. Tyson — Thu, 21 May 2020 09:00:06 -0400

In March 2020, the United States Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to provide financial relief to individuals and organizations impacted by the Coronavirus pandemic. As a part of the CARES Act, Congress created the Paycheck Protection Program (“PPP”) which authorized the Small Business Administration (“SBA”) to provide loans to small businesses. Historically, however, the SBA has rendered certain types of business ineligible to receive SBA loans. Recognizing this, Congress established merely two criteria for ...

Payday Lender Abandons Suit Challenging Eligibility for Paycheck Protection Program Loan

Mark H. Tyson — Thu, 14 May 2020 09:00:07 -0400

A payday lender recently filed suit against the Small Business Administration (“SBA”) in the United States District Court for the District of Columbia relating to its Paycheck Protection Program (“PPP”) loan application under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). See Payday Loan, LLC v. United States Small Business Administration, Civil Action No. 1:20-cv-1084 (D.D.C. Apr. 25, 2020) The lender operated twenty-two stores in California that provided lending, check-cashing, money orders, money transmission, and other financial ...

Mississippi Supreme Court Denies COVID-19 Relief Reasoning Lack of Constitutional Authority

Mark H. Tyson — Thu, 07 May 2020 09:00:08 -0400

On April 30, 2020, the Supreme Court of Mississippi entered two Orders denying relief for certain individuals that have been impacted by the ongoing Coronavirus pandemic (“COVID-19”) reasoning lack of constitutional authority. Particularly and in an effort to provide relief to renters struggling to pay rent during the pandemic, the Mississippi Center for Justice filed a petition asking the Court to extend the moratorium on evictions and late rental fees until at least July 27, 2020.[1] The Motion asked the Court to both “(1) impose a temporary moratorium on all judicial ...

Medley v. Dish Network, LLC: The Eleventh Circuit Joins the Second Circuit in Prohibiting Unilateral Revocation of Consent Originally Provided in Bargained-For Contracts

Zachary D. Miller — Tue, 05 May 2020 09:00:09 -0400

A .pdf copy of the Medley opinion can be found here.

While the Federal Communications Commission (“FCC”) has been clear that the Telephone Consumer Protection Act (“TCPA”) allows a consumer to revoke consent through “any reasonable means,” federal courts have been grappling with the interplay of consent that was provided in a bargained-for contract and subsequent attempts to revoke that consent. Back in 2017, the Second Circuit issued a landmark decision in Reyes v. Lincoln Auto. Fin. Svcs., 861 F.3d 51, 56 (2d Cir. 2017), holding that “the TCPA does not permit a party ...

CFPB Allows Waiting Periods under TILA and RESPA to be Modified or Waived Due to COVID-19

Reid S. Manley, Gennifer L. Bridges — Mon, 04 May 2020 09:00:10 -0400

On April 29, 2020, the Consumer Financial Protection Bureau (CFPB) issued an interpretive rule allowing certain consumers to modify to waive certain waiting periods required under the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). Per the CFPB, this interpretive rule is intended to ease the way for consumers with urgent financial needs to obtain access to mortgage credit more quickly during the COVID-19 pandemic.

Ordinarily, the TILA-RESPA Integrated Disclosure (TRID) Rule imposes certain disclosure requirements and waiting periods ...