November 19, 2019

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Financial Services Update: Week Ending November 1, 2019

Financial Services Update

  • FCCPA and FDCPA: The plaintiff did not demonstrate a genuine issue of material fact that medical providers and their attorney violated the FCCPA and FDCPA by conditioning medical services on a guarantee of payment, unsuccessfully billing her insurers, sending balance statements, and enforcing the LOP through their attorney after her personal injury claims were settled because the plaintiff presented no evidence of an agreement between the defendants to violate the FCCPA, any direct communication by any of the defendants with her relating to debt collection, no harassing or abusive conduct by any defendant, or any false or misleading representations by the defendants. Daley v. Bono, No. 8:18-cv-01465 (M.D. Fla. Oct. 28, 2019) (granting defendants’ motion for summary judgment).

  • FDCPA:  The district court abused its discretion in deciding that common issues did not predominate the class’s FDCPA claim because the legal question of whether the Bankruptcy Code precludes or displaces any remedy available under the FDCPA and FCCPA for a claim that a creditor engaged in false or deceptive conduct by trying to collect a debt in violation of a discharge injunction is common to all class members. Sellers v. Rushmore Loan Mgmt. Servs., LLC, No. 18-11420 (11th Cir. Oct. 29, 2019).

  • FCRA: A consumer suffers a concrete Article III injury in fact when a third party obtains his or her credit report for a purpose not authorized by the FCRA. Further, a consumer need allege only that her credit report was obtained for a purpose not authorized by the FCRA to survive a motion to dismiss. Nayab v. Capital One Bank (USA), N.A., No. 17-55944 (9th Cir. Oct. 31, 2019).

  • TCPA: The plaintiff failed to establish a TCPA claim when he offered no evidence to support his allegation that he revoked his consent to be called in a telephone conversation with a bank as it relates to a specific account. Mendoza v. Allied Interstate LLC, No. 8:17-cv-00885 (C.D. Cal. Oct. 22, 2019) (granting defendant’s motion for summary judgment).

  • TCPA: The plaintiff did not adequately allege that the defendants used an automatic telephone dialing system to call his cell phone in violation of the TCPA because the plaintiff’s complaint merely parroted the TCPA’s statutory language. Shcherb v. Angi Homeservices Inc., No. 1:19-cv-00367 (S.D.N.Y. Oct. 25, 2019) (granting defendants’ motion to dismiss).

  • TILA: Federal class action settlement precluded mortgagor from asserting claims for breach of federal TILA, state unfair competition laws, state unfair and deceptive trade practices statutes, state consumer protection laws, and loan agreement, where the class action involved plaintiffs similarly situated as mortgagor, the settlement released and discharged all claims such as those mortgagor asserted, mortgagor did not opt out of the settlement class, and, in fact, the mortgagor received payment pursuant to the settlement. Wachovia Mortg. FSB v. Macwhinnie, 175 A.D.3d 1587 (N.Y. App Div. 2019)

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About this Author

Michael K. Winston Florida Consumer Finance Attorney Carlton Fields Law Firm
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Michael Winston, the Consumer Finance Industry Group leader, focuses on consumer finance litigation, including lender liability and loan servicing litigation, escalated residential foreclosures, and federal TILA, RESPA, FCRA, ECOA, FDCPA, and RICO claims, as well as their state law counterparts. Michael regularly serves as first chair for trials in both state and federal district court.

Michael holds a finance degree and has substantial Fortune 500 professional experience in accounting, business management, and systems technology....

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