In Lee v. Loandepot.com, plaintiff alleged that defendant violated the TCPA by placing automated telemarketing calls to his cell phone without consent.   Defendant moved to stay the case until the FCC has made a ruling on issues that would affect the case.  Specifically, there are three petitions before the FCC that address the interpretation of "capacity" under the TCPA that would affect whether the calls were made with an ATDS.  Relying on the primary jurisdiction doctrine, the court granted the motion and stayed the case until the FCC determined whether equipment that lacks the present capacity to generate random or sequential numbers is an ATDS.

 

In McLaughlin v. Phelan Hallinan & Schmieg, plaintiff alleged that a letter from a law firm violated the FDCPA by misrepresenting the amount of the debt.  Defendant's motion to dismiss was denied in part and granted in part, and both parties appealed.  The appellate court found that the letter, which did not explicitly make a demand for payment, still was collection activity under the FDCPA, because it discussed the status of payment, made offers as an alternative to default and requested the consumer to provide financial information.  The court then found that the letter misrepresented the amount of the debt in violation of the FDCPA, by failing to accurately set forth the amount due.  The court also rejected defendant's argument that plaintiff was required to first seek validation of the debt if the consumer believes the debt is inaccurately described as a prerequisite to filing suit.

 

In Caceres v. McCalla Raymer, the district court granted defendant's motion to dismiss plaintiff's FDCPA claim, and the consumer appealed.  The appellate court concluded that a letter sent from defendant that informed the consumer that she was behind on her residential mortgage payments was an initial communication under the FDCPA.  However, the court concluded that the erroneous substitution of the term "creditor" for "debt collector" when providing the validation notice would not mislead the least sophisticated consumer, and therefore did not violate the FDCPA.

 

In Tourgeman v. Collins Financial Services, the district court granted defendant's motion for summary judgment on plaintiff's claim that a letter he received violated the FDCPA by failing to identify the creditor to whom the debt was owed.  The appellate court reversed, finding first that plaintiff had standing to assert the claims even though the letters were sent to the consumer's parents, the consumer did not see the letters for months since when they were sent and did not read the letters.  The court then found that the original creditor was falsely identified in both the dunning letter and in a state court collection complaint, and that the misrepresentation was material, as the correct identity of the creditor was a critical piece of information.

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