Ninth Circuit Affirms FDCPA Summary Judgment
In McCollough v. Johnson, Rodenburg & Lauinger, LLC., No. 09-35767 (9th Cir. Mar. 4, 2011), plaintiff opened a credit card account around 1990 with Chemical Bank, which later merged with Chase. Plaintiff's account became delinquent and in 2000, Chase Manhattan charged off the $3,000 account balance and later sold the account to CACV of Colorado, Ltd. CACV filed a collection action in state court in 2005. Two weeks later, CACV dismissed the case after plaintiff pointed out that the statute of limitations had lapsed. In 2006 CACV 's parent company retained Johnson, Rodenburg & Lauinger (“JRL”), a debt collection law firm, to pursue collection of plaintiff’s debt.
JRL noticed a statute of limitations problem with plaintiff’s account and inquired to CACV, who responded that plaintiff had made a partial payment in 2004, which would extend the statute of limitations to 2009. This information was incorrect: the payment in 2004 was actually the return of court costs to CACV, and not a partial payment on the account. However, based on the incorrect information, JRL filed a collection complaint against plaintiff in state court in 2007. JRL subsequently dismissed the collection action with prejudice based on the statute of limitations.
Continue Reading...TCPA Summary Judgment Scope Defined
In Gutierrez v. Barclays Group (S.D. Cal. Feb. 9, 2011), a district court considered the scope of revoking consent to contact debtors by cell phone and text messages.
In Gutierrez, plaintiff applied for a credit card from defendant Barclays. On his application, plaintiff listed both his and his wife’s cellular phone numbers in his contact information. Plaintiff’s application was approved. Months later, plaintiff’s account became delinquent, and defendant began making collection calls and sending text messages to the two cellular numbers associated with plaintiff’s account. Plaintiff requested, via text message, that defendant stop sending text messages to his cellular phone. Plaintiff’s wife also orally requested that defendant stop calling her cellular phone.
Plaintiff and his wife subsequently filed suit, alleging violation of the Telephone Consumer Protection Act (TCPA), which prohibits making telephone calls using an automatic telephone dialing system or an artificial or prerecorded voice, subject to exemption where the called party has given prior express consent. Among other things, the TCPA also prohibits making calls to “any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.”
Continue Reading...9th Circuit Defines FACTA Scope for Electronic Receipts
In Simonoff v. Expedia, Inc. (9th Cir. May 24, 2010), the Ninth Circuit held that an “electronically printed” receipt under FACTA does not include an email receipt displayed on a computer screen.
Congress passed the Fair and Accurate Credit Transactions Act (FACTA) in 2003, as an amendment to the Fair Credit Reporting Act. FACTA restricts the electronic printing of more than the last five digits of a credit card number or card expiration dates, on receipts provided to the cardholder at the point of sale.
In Simonoff, plaintiff purchased travel arrangements online through Expedia’s website. Expedia subsequently emailed a receipt for the purchase to the plaintiff, which included the expiration date of plaintiff’s credit card. Plaintiff sued, claiming that the email receipt sent by Expedia violated FACTA. The district court dismissed plaintiff’s claims under Rule 12(b)(6). Plaintiff appealed.
