Although courts across the country agree that “a plaintiff class should not be certified unless membership therein is ‘adequately defined and clearly ascertainable,’” the extent of what a plaintiff must provide to satisfy this “implicit requirement” to certification varies among circuit courts. See Ocwen Loan Servicing, LLC v. Belcher, No. 18-90011, 2018 WL 3198552, at *3 (11th Cir. June 29, 2018) (citations omitted). For example, some circuit courts have construed the requirement to “mean[] a plaintiff must demonstrate an ‘administratively feasible’ ...
In an opinion issued today, Florida's Fifth District Court of Appeal joined other Florida appellate courts in holding that the five-year statute of limitations to bring an action to enforce a promissory note and/or mortgage does not prohibit a lender from collecting amounts more than five years past due.
In Grant v. Citizens Bank, N.A., slip op., Case No. 5D17-726 (Fla. 5th DCA Dec. 26, 2018), the Fifth District, sitting en banc, examined whether the trial judge erred in awarding to a foreclosing lender interest that had accrued more than five years prior to acceleration and the filing ...
In Swann v. Dynamic Recovery Solutions, LLC, No. 4:18-CV-1000-VEH, 2018 WL 6198997 (N.D. Ala. Nov. 28, 2018), the Northern District of Alabama dismissed a putative class action case alleging a letter seeking to collect a time-barred debt violated the Fair Debt Collection Practices Act ("FDCPA").
The plaintiff, Susan Swann ("Plaintiff"), alleged that defendants Dynamic Recovery Services, LLC ("DRS") and Jefferson Capital Systems, LLC ("JCS") violated § 1692e and §1692f of the FDCPA. See generally id. Section 1692e prohibits debt collectors from "'us[ing] any false deceptive ...
For many of the claims asserted under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the "FDCPA"), courts are required to apply the "least sophisticated consumer" standard in evaluating the claim, an "objective" test that assesses the alleged violation from the perspective of the hypothetical "least sophisticated consumer." See Landeros v. Pinnacle Recovery, Inc., 692 F. App'x 608, 612-13 (11th Cir. 2017); see also Leonard v. Zwicker & Assocs., P.C., 713 F. App'x 879, 881-82 (11th Cir. 2017). But as the Eleventh Circuit again made clear earlier this month in Lait ...
In Roark v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018), the District Court of Minnesota found that calls to a reassigned phone number did not violate the TCPA because the caller's reliance on the prior owner's express consent was reasonable.
The plaintiff, Stewart Roark ("Plaintiff"), alleged Credit One Bank, N.A. ("Credit One") violated the Telephone Consumer Protection Act ("TCPA") by using an automatic dialer ("ATDS") to call his cell phone number and left a prerecorded voicemail on his phone without his consent. See generally id.
On October 3, 2018, the FCC issued a Public Notice to seek comment on what constitutes an "automatic telephone dialing system" (ATDS) under the Telephone Consumer Protection Act (TCPA)[1] in the wake of the Ninth Circuit's Marks v. Crunch San Diego, LLC, 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) decision last month. Under the TCPA, an ATDS is defined as equipment that has the capacity to "(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers."[2] The FCC noted that the Marks court expanded this ...
In Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065 (M.D. Fla. Sept. 5, 2018), the Middle District of Florida determined that the D.C. Circuit's opinion in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter "ACA"], vacated the Federal Communications Commission's ("FCC") 2003, 2008, and 2015 Orders interpreting the definition of an automatic telephone dialing system ("ATDS").
The plaintiff, Wilfredo Gonzalez ("Plaintiff"), alleged that Ocwen Loan Servicing, LLC ("Ocwen") used an ATDS to place approximately 500 calls to his ...
In Washington v. Six Continents Hotels, Inc., No. 2:16-CV-03719-ODW-JEM, 2018 WL 4092024 (C.D. Cal. Aug. 24, 2018), the Central District of California found that ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter ACA], set aside all prior FCC guidance regarding the definition of an autodialer.
The plaintiff, Eric Washington ("Plaintiff"), alleged that Six Continents Hotels, Inc. ("Six Continents") sent him numerous unsolicited text messages using an automatic telephone dialing system ("ATDS") in violation of the Telephone Consumer Protection Act ...
In Keyes v. Ocwen Loan Servicing, LLC, No. 17-cv-11492, 2018 WL 3914707 (E.D. Mich. Aug. 16, 2018), the Eastern District of Michigan determined that the system Ocwen Loan Servicing, LLC ("Ocwen") used to place calls, the Aspect Unified IP ("Aspect System"), was not an automatic telephone dialing system ("ATDS") within the meaning of the Telephone Consumer Protection Act ("TCPA").
Plaintiff Darcel Keyes ("Plaintiff") claimed Ocwen violated the TCPA by using its Aspect System to call her, despite her objections. See id. at *1. To support her claims, Plaintiff relied on an expert ...
In Harris v. Navient Solutions, LLC, No. 3:15-cv-564 (RNC), 2018 WL 3748155 (D. Conn. Aug. 7, 2018), the United States District Court for the District of Connecticut followed the Second Circuit's decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017), which held that the TCPA did not permit unilateral revocation of consent to calls that was part of a bargained-for exchange. See Reyes, 861 F.3d at 56.
The plaintiff, Jennifer Harris ("Plaintiff"), alleged Navient Solutions ("Navient") violated the TCPA by using an automatic telephone dialing system ("ATDS") to ...