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September 30, 2014 Case Digest

In Mais v. Gulf Coast Collection Bureau, the appellate court reversed the district court’s order and granted summary judgment in favor of defendant in plaintiff’s TCPA suit, finding that plaintiff provided consent to receive autodialed calls on his cell phone when  his wife provided the cell number to the hospital during intake.  After admission, plaintiff received radiological treatment from a hospital sub-contractor, and plaintiff’s cell phone number was given to the radiologist from the hospital.  The district court had concluded that the provision of the cell phone number by the plaintiff’s wife to the hospital was not effective consent under the TCPA because the FCC orders that concluded simply providing a number to a creditor is “prior express consent” was incorrect, and because the number was not actually given to the creditor (the radiologist), but the hospital.  The reversal by the appellate court respects the generally accepted principal that effective consent under the TCPA is given when the number is provided by a consumer to the creditor.

 

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September 29, 2014 Case Digest

In Minton v. Cach, LLC, plaintiff alleged that defendant violated the FDCPA by attempting to collect a five year old state court judgment which allegedly included unlawful prejudgment interest and attorney's fees.  Defendant moved to dismiss, arguing that the Rooker-Feldman doctrine precluded plaintiff's claim.  The court agreed, finding that the issue of whether the interest and fees were recoverable was determined in the state court action, and that plaintiff was essentially asking the federal court to review and reverse the finding of the state court, when such a review is barred by the Rooker-Feldman doctirne.

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September 27, 2014 Case Digest

In Roberson v. LVNV, plaintiff alleged that defendant violated the FDCPA when it filed a state court lawsuit without being licensed as a debt collector in the state.   The parties filed cross motions for summary judgment, and the court granted defendant's motion. The court concluded that defendant did not need to hold a collection license because it was a passive debt buyer that relied on licensed agencies or attorneys to do the collection work, including making phone calls and sending dunning letters.  The court found that defendant's credit reporting of the purchased accounts was insufficient collection activity to require a license.

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September 26, 2014 Case Digest

In Garcia v. Babb, LLP, the district court granted defendant’s motion to dismiss plaintiff’s FDCPA lawsuit because plaintiff had failed to plausibly allege that the debt underlying the case was a consumer transaction, and plaintiff appealed.  The appellate court affirmed, finding that plaintiff’s failure to describe the underlying transaction, or give an indication of what was purchased, what service was paid for or otherwise allege that the item or service was used for a personal purpose, doomed the FDCPA claim.

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September 25, 2014 Case Digest

In Morgan v. LVNV Funding, plaintiff alleged that defendant misrepresented the amount of the debt by sending various letters that contained different balances of the debt.     Defendant moved to dismiss, arguing that the different balances were the result of additional interest charges.  The court granted the motion, concluding that the least sophisticated consumer would understand the debt would continue to accrue interest, and would not be misled by the increasing balances.

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September 24, 2014 Case Digest

In Alpert v. Nationstar, plaintiff alleged that defendant violated the FDCPA by failing to respond to his request for validation.  The court granted defendant's motion to dismiss, finding that the validation request that occurred more than 6 months following the sending of the validation notice imposed no requirement on defendant to respond and validate the debt.

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September 23, 2014 Case Digest

In Simpson v. Safeguard Properties, plaintiff filed a putative class action alleging that defendant failed provide the required disclosures in violation of the FDCPA.  Plaintiff moved to certify the class, and defendant opposed the motion by arguing that plaintiff’s dispute of the debt put her in a different position from class members.  The court certified the class, concluding that plaintiff’s dispute of the underlying debt did not make her claims atypical, or an inadequate class representative. 

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September 22, 2014 Case Digest

In Gomez v. Campbell-Ewald Co., plaintiff alleged that defendant violated the TCPA by sending unsolicited text messages on behalf of the US Navy and without consent.  Defendant moved for summary judgment, arguing that it could not be held liable under the TCPA because, inter alia, the texts were sent by a third party vendor.  After the court granted the motion, plaintiff appealed, and the appellate court reversed.  The appellate court concluded that defendant could be held vicariously liable for the calls made by the vendor under an agency theory, and remanded the case to determine if the vendor was defendant's agent.

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September 20, 2014 Case Digest

In Jacobson v. Credit Control Services, plaintiff alleged that defendant violated the FDCPA by using false representations regarding a debt.  Defendant served an offer of judgment for $1,001, which plaintiff did not accpet.  Defendant then moved to dismiss, arguing that the claim was moot. The court found the unequivocal offer was for more than plaintiff could recover, and that the court no longer had subject matter jurisdiction because the suit was moot.

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September 19, 2014 Case Digest

In Davis v. Nebraska Furniture Mart, plaintiff alleged that defendant violated the FDCPA while attempting to collect a judgment.  After the district court granted defendant’s motion to dismiss, plaintiff appealed, arguing that the defendant engaged in unlawful collection practices by obtaining a bench warrant for  failure to appear at a hearing on the execution of the judgment in an attempt to pressure plaintiff into paying a debt.  The appellate court affirmed, finding that the actions were lawful under state law, and therefore outside the reach of the FDCPA.

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