Showing 50 posts from 2017.

Third Circuit Rules that a Single Voicemail on a Cell Phone is Sufficient to Confer Standing for a TCPA Claim

July 20, 2017 by Concepcion A. Montoya

In another court's journey into the murky waters of constitutional standing post-Spokeo, the Third Circuit Court of Appeals concluded that one single voicemail on a consumer's cell phone is sufficient to confer standing under the Telephone Consumer Protection Act (TCPA). In Sussino v. Work Out World, Inc., the plaintiff alleged that she received an unsolicited call on her cell phone from Work Out World (WOW). When she did not answer, WOW left a prerecorded promotional offer lasting more than one minute on her voicemail. WOW moved to dismiss for lack of standing under Article III. The district court granted WOW's motion on the grounds that a single solicitation was not "the type of case that Congress was trying to protect people against," and in any event, the call and voicemail did not cause a concrete injury. Sussino appealed. More ›

CFPB Rule Bars the Use of Mandatory Arbitration Clauses to Prohibit Class Actions; Some Members of Congress Vow to Take Action to Reverse

July 14, 2017 by Hinshaw & Culbertson LLP

This week, the Consumer Financial Protection Bureau (CFPB) adopted a final rule prohibiting a broad range of financial firms from using mandatory arbitration clauses to bar class action suits and received wide press coverage. The CFPB announced that this final rule would "restore the ability of groups of people to file or join group lawsuits." Some in the financial services industry potentially subject to the rule have already issued statements opposing and attacking it and asking that Congress use its statutory authority to reverse the CFPB's action. More ›

A Missing Massachusetts Promissory Note's Outsized Potential Impact on Foreclosures

July 11, 2017 by Samuel C. Bodurtha

In Zullo v. HMC Assets, LLC, the Massachusetts Land Court has issued a judicial about-face in deciding that a mortgage holder lacks standing to foreclose if that holder never possessed the mortgagor's original promissory note – even if that holder can submit a lost note affidavit from a predecessor holder. In a written decision issued in August 2014, the Land Court determined, in the very same case, that the mortgage holder could foreclose without possession of the original promissory note but with a lost note affidavit executed by a prior loan servicer. The 2014 Zullo decision directly contradicted two decisions arising out of the Massachusetts bankruptcy court, Desmond v. Raymond C. Green, Inc., 505 B.R. 365 (Bankr. D. Mass. 2014); Marks v. Braunstein, 439 B.R. 248 (Bankr. D. Mass. 2010), both of which concluded that under Massachusetts law, the foreclosing mortgage holder must have at one point possessed the original note, so that it can execute the lost note affidavit. More ›

A Cautionary Tale Regarding Case and Witness Preparation in Third Circuit TCPA and FDCPA Decision

July 7, 2017 by Concepcion A. Montoya

In a cautionary tale for the defense bar, the Third Circuit recently upheld a consumer's TCPA claims and reversed summary judgment on the FDCPA claims in Daubert v. NRA, Nos. 16-3613 and 16-3629 (3d Cir. July 3, 2017). More ›

Happiness is not a Fresh Baguette: Failure to Redact Expiration Date Insufficient to Create Standing under FACTA

July 5, 2017 by Brent M. Reitter

Happiness is not a fresh baguette…at least not for one FACTA plaintiff. In Crupar-Weinmann v. Paris Baguette America, Inc., the Second Circuit, in line with the recent U.S. Supreme Court decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), affirmed the District Court’s dismissal of plaintiff’s complaint with prejudice. The Second Circuit held that while Paris Baguette’s failure to redact the expiration date of plaintiff’s credit card number was a technical violation of the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”), by itself, that violation did not result in an injury sufficient to confer Article III standing. More ›

CFPB Releases State by State Report on Consumer Complaints

June 29, 2017 by Vaishali S. Rao

This week, the Consumer Financial Protection Bureau (CFPB) released its June 2017 complaint report. The format is different than usual. Normally, the report spotlights complaints from a particular industry and state. This month, the report provides a state by state overview of what consumers are complaining about across the country. You can see the top 5 industries receiving complaints by volume and quarterly percent change for each state. More ›

Second Circuit Says No to Unilateral Revocation of TCPA Consent to Contact, Citing Contract Principles

June 26, 2017 by Hinshaw & Culbertson LLP

The Second Circuit Court of Appeals has split with the Third Circuit, the Eleventh Circuit, and the Federal Communications Commission (FCC), and utilized contract principles to hold that a consumer may not necessarily have the ability to unilaterally revoke consent to contact under the Telephone Consumer Protection Act (TCPA). The decision shifts the focus of a TCPA claim from simply deciding whether the consumer revoked consent to whether consent to contact could be revoked by contract standards. More ›

TransUnion Hit with Record $60 Million Dollar Verdict in FCRA Class Action

June 23, 2017 by Hinshaw & Culbertson LLP

A California jury recently returned a large verdict in a Fair Credit Reporting Act ("FCRA") case which alleged that TransUnion's credit reporting confused the class consumer names with the names of criminals and terrorists on a government watch list. Five years after lead plaintiff Sergio L. Ramirez filed suit against TransUnion alleging violations of the FCRA, the consumer class was awarded statutory and punitive damages exceeding $60 million. The jury awarded each of the 8,185 class members $984.22 in statutory damages and $6,353.08 in punitive damages.  More ›

Treasury Echoes Trump: Deregulate to Improve Financial Systems

June 19, 2017 by Vaishali S. Rao, Samuel C. Bodurtha

Shortly after taking office, President Trump issued an Executive Order to establish a policy for regulating the United States financial system under seven "Core Principles," and to order a report from the United States Treasury that assesses financial markets. Last week, Treasury responded with its first 150 page report on the current state of the financial system that outlines proposed regulatory changes. Treasury points the finger at the Obama administration’s 2010 enactment of Dodd-Frank for imposing regulatory requirements insufficiently tailored or coordinated among agencies, unrelated to addressing the problems leading to the great recession, and applied in an overly prescriptive manner. In no uncertain terms, the report concludes that the scope and excess costs imposed by Dodd-Frank have resulted in a slower rate of growth in the financial markets. Unsurprisingly, Treasury’s regulatory recommendations coincide with Congress’ current legislative effort at replacing Dodd-Frank with the Financial Choice Act. More ›

Colorado Latest State to Define Debt Buyers as Debt Collectors; Will Others Soon Follow?

June 14, 2017 by Hinshaw & Culbertson LLP

On June 1, 2017, just two weeks before the U.S. Supreme Court's unanimous decision in Henson v. Santander Consumer USA, Inc., Colorado Governor John Hickenlooper signed the revised Colorado Fair Debt Collection Practices Act to specifically include debt buyers in the statute's definition of debt collectors. Colorado is now one of a small number of states that specifically include debt buyers under the law (including New York, California, and Washington). However, other states may follow suit. For instance, Oregon and Maine both have introduced bills to extend the definition of debt collector to include debt buyers. Considering that nearly two dozen state Attorneys General submitted amicus briefs to the Supreme Court in Santander in favor of including debt buyers in the definition of debt collector under the FDCPA, it is possible that more states may follow the lead of Colorado. Ultimately, the various legislatures will decide whether debt buyers should fall within the scope of the state-enacted versions of the FDCPA; but, debt buyers should note, it is likely that Colorado will not be the last state to enact such legislation. Just as Justice Gorsuch noted in his Opinion that these are matters for the legislature and not the Supreme Court to resolve, it appears that at least some states may just take Justice Gorsuch up on his offer and include debt buyers in the scope of their regulatory framework. Ironically, Justice Gorsuch’s home state of Colorado leads the way.

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