Debt Collection
[09/03]
Fed. Trade Comm'n v. Leshin
In the Federal Trade Commission's suit against defendants for providing debt consolidation services in violation of the Federal Trade Commission Act and the Telemarketing and Consumer Fraud and Abuse Prevention Act, district court's judgment holding defendants in contempt for violating a stipulated injunction and ordering defendants to disgorge all fees collected in violation of the injunction is affirmed where: 1) district court did not abuse its discretion by holding the defendants in contempt; 2) district court did not err by holding the counseling center in contempt, by holding defendants individually liable, or by holding the contempt defendants jointly and severally liable; 3) district court did not abuse its discretion by ordering disgorgement as the sanction for contempt or in calculating the amount to be disgorged; 4) district court issued civil contempt sanctions and did not violate the contempt defendants' right to due process; and 5) the provision of the final order of disgorgement that allows the Commission to convert unpaid balance into a money judgment is not ripe for review.
[08/25]
Fireside Bank Cases
In coordinated class actions challenging a lender's collection practices, trial court's entry of dismissals with prejudice against all class members against whom the lender had previously secured judgments in separate collection actions is affirmed where: 1) plaintiffs' contention that the trial court was empowered by the UCL to grant class-wide relief to judgment debtors without a factual showing of grounds to avoid the judgments against them is rejected, and, since no other basis for relief on their behalf was ever suggested, the court did not err by concluding that the UCL afforded no basis for the class-wide affirmative relief sought in this class action; and 2) the appeal is dismissed as moot insofar as it is taken from orders denying leave to intervene and refusing to certify a subclass consisting of judgment debtors.
[08/23]
Regal Fin. Co. v. Tex Star Motors, Inc.
In a secured creditor's suit for deficiency against a used-car dealer, the court of appeals' order setting aside the jury verdict in favor of the secured creditor in finding no evidence of commercial reasonableness is reversed and remanded where: 1) the jury charge did not alter the standard for commercial reasonableness under Article 9, as the court of appeals erred in reading the jury instruction on commercial reasonableness to require evidence of a reasonable dealer standard; and 2) evidence of commercial reasonableness here is legally sufficient to support the jury's verdict.
[08/18]
Carvalho v. Equifax Info. Servs., LLC
In an action against credit reporting agencies alleging violations of the California Consumer Credit Reporting Agencies Act (CCRAA), summary judgment for defendants is affirmed where: 1) because the face of plaintiff's superior court complaint lacked any indication of the amount in controversy, it did not trigger the first thirty-day removal period; 2) because section 1785.25(a) was the only substantive CCRAA furnisher provision specifically saved by the Fair Credit Reporting Act, plaintiff's section 1785.25(f) claim was preempted; and 3) unless plaintiff raised a genuine issue as to whether the disputed item was inaccurate, her CCRAA section 1785.16 claims failed as a matter of law.
[08/13]
Cortez v. Trans Union, LLC
In plaintiff's suit against Trans Union pursuant to the Fair Credit Reporting Act for failing to correct the problems with plaintiff's credit report or respond satisfactorily to her inquiries, district court's judgment is affirmed where: 1) defendant remains responsible for the accuracy in its reports under the FCRA as Congress clearly intended to ensure that credit reporting agencies exercise care when deciding to associate information with a given consumer, and the record clearly supports the jury's determination that defendant did not exercise sufficient care here; 2) district court did not err in denying defendant's motion for judgment as a matter of law on plaintiff's claims under 15 U.S.C section 1681; 3) district court's entry of judgment for $100,000 in punitive damages is affirmed as it clearly had the authority to enter the conditional remittitur and plaintiff's attempt to avoid the Supreme Court's decision in Donovan is meritless; 4) district court's denial of defendant's motion to remit the compensatory damage award is affirmed; and 5) district court's remitted punitive damages award of $100,000 is affirmed.
[08/13]
CFTC v. Walsh
In an action by the CFTC and SEC alleging securities fraud, the Second Circuit certified the following question to the New York Court of Appeals: 1) does "marital property" within the meaning of New York Domestic Relations Law section 236 include the proceeds of fraud?; and 2) does a spouse pay "fair consideration" according to the terms of New York Debtor and Creditor Law section 272 when she relinquishes in good faith a claim to the proceeds of fraud?
[08/12]
Scanscot Shipping Servs GmbH v. Metales Tracomex LTDA
In plaintiff's appeal from the district court's order vacating the attachment of certain electronic fund transfers (EFTs) held by garnishee Wachovia Bank in New York City, which the district court had previously attached pursuant to Rule B of the Supplemental Admiralty Rules for Certain Admiralty Maritime Claims of the Federal Rules of Civil Procedure, the order is affirmed where: 1) EFTs for which the defendant is both the originator and the beneficiary are not the property of the defendant and, therefore, may not be attached pursuant to Rule B; 2) when an intermediary bank responds to an order of attachment, later determined to be wrongful, by sequestering the wrongly attached funds in a non-EFT suspense account, a creditor may not then reattach those funds in the new account; and 3) Jaldhi's retroactivity was not subject to a case-by-case rebuttable presumption.
[08/11]
Ziino v. Baker
In an action seeking to levy against assets held in trust for a bankrupt party in an action based on a prior bankruptcy court order, summary judgment for defendant is affirmed where: 1) the bankruptcy court's order contained no clear designation of plaintiff's entitlement, especially in view of his significant recovery from the bankruptcy estate after the order issued; and 2) plaintiff's privately negotiated agreement with defendant did not qualify as an enforceable judgment for child support.
[07/27]
Gburek v. Litton Loan Servicing LP
In a homeowner's suit against her mortgage service provider, claiming that it had engaged in illegal debt-collection practices in violation of the Fair Debt Collection practices Act (FDCPA), district court's grant of defendant's motion to dismiss is reversed as, generally, a communication from a debt collector to a debtor is not covered by the FDCPA unless it is made in connection with the collection of any debt, and here, plaintiff's mortgage was in default, and the text of the letters indicate they were sent to induce her to settle her mortgage-loan debt in order to avoid foreclosure. Therefore, the complaint sufficiently alleges communications that were sent in connection with an attempt to collect a debt, and in violation of the FDCPA.
[07/27]
Zimmerman v. Puccio
In a class action lawsuit against defendant-Cambridge Credit Counseling Corporations (Cambridge) and other corporate defendants, pursuant to the Credit Repair Organizations Act (CROA), and unfair or deceptive acts or practices in violation of the Massachusetts Consumer Protection Act, district court's grant of plaintiffs' motion for summary judgment is affirmed where: 1) Cambridge was a credit repair organization within the meaning of CROA; 2) the district court unambiguously held defendants liable for misleading representations under section 1679b(a)(3) of CROA, and that finding of liability is affirmed based on the court's corporate veil-piercing analysis; and 3) because defendants' liability under section 1679b(a)(3) fully supports the district court's grant of summary judgment, defendant's liability under section 1679b(a)(4) and their attendant arguments about summary judgment standard and corporate veil-piercing need not be reached.
[07/20]
In re: Roser
In a creditor's appeal from the bankruptcy court's order holding that the trustee in a Chapter 7 proceeding could avoid a creditor's lien, the order is reversed where the Colorado Certificate of Title Act (CCTA) did not supersede Colorado UCC section 4-9-317(e) because the provision did not govern the manner or timing of the perfection of liens, and governed only the priority of a lien and was not inconsistent with the CCTA.
[07/19]
In re: Tennyson
The district court's affrmiance of the bankruptcy court's confirmation of debtor's Chapter 13 plan is reversed where an above median income debtor, with negative disposable income, may not obtain confirmation of a Chapter 13 bankruptcy plan to last for less than five years when the debtor's unsecured creditors have not been paid in full.
[07/16]
In re: Penrod
In a creditor's appeal from the district court's affirmance of the bankruptcy court's holding that a creditor did not have a purchase money security interest in the portion of the debtor's loan related to negative equity charges, the order is affirmed where a creditor does not have a purchase money security interest in the "negative equity" of a vehicle traded in at the time of a new vehicle purchase.
[07/06]
US v. Johnson
Defendants' mail fraud convictions are affirmed where: 1) defendants' courtroom
behavior, although eccentric at times, would not have justified, let alone required, the involuntary deprivation of their constitutional right to represent themselves; 2) it was not an abuse of discretion for the district court to conclude that a prior judge's rulings did not display a "deep-seated favoritism or antagonism that would make fair judgment impossible"; and 3) the district court’s instructions were not findings of fact.
[06/22]
Export-Import Bank of the U.S. v. Asia Pulp & Paper Co.
In an action to collect a $144 million judgment against defendants pursuant to the Federal Debt Collection Procedures Act (FDCPA), the district court's order quashing plaintiff's writs of garnishment is affirmed where an electronic funds transfer (EFT) temporarily in the possession of an intermediary bank in New York may not be garnished under the FDCPA to satisfy judgment debts owed by the originator or intended beneficiary of that EFT.