Daily Decision Recap: Garnishment, Caller Consent, and More

Daily Decision RecapA rundown of recent top FCRA, TCPA and FDCPA cases from ACA.

03/17/2023 2:45 P.M.

4.5 minute read

Each week, ACA International’s compliance team covers relevant case summaries for ACA members. Members may also submit cases for consideration to our compliance team at [email protected].

Here are the cases covered March 14 – 17:

March 14:

Denmon v. Kansas Counselors: Court Finds Standing and Grants Summary Judgment for Consumer on FDCPA Claim

A consumer wrote a collector several years after the end of the initial validation period to dispute a debt and also directed the collector to not contact her about the debt. The court found the collector was no longer obligated under the FDCPA to provide the consumer with verification of the debt, and that the collector violated the FDCPA by writing to the consumer.

Continue reading the case summary here.

Gaker v. Citizens Disability: Disclaimer on Website Did Not Provide Consent to Call Consumer

A consumer alleged that a disability services company violated the TCPA by placing telemarking calls to her cellphone without her prior consent, despite her being on the National Do Not Call Registry. The disability services company argued that the consumer consented to receive such calls.

Continue reading the case summary here.

Stones v. J&M Securities: No Costs and Fees for Removal Based on FDCPA Claim

A court denied the plaintiffs’ motion for costs and fees associated with the defendant’s removal of a case to federal court, because the defendant had a reasonable basis for removal due to the plaintiffs’ FDCPA claim.

Continue reading the case summary here.

March 15:

Ohaion v. Bank of America: Reporting Settled Account as Charged Off Did Not Violate the FCRA

A Nevada district court found that reporting a settled account with a payment status as “charged off” was neither inaccurate nor misleading.

Continue reading the summary here.

Widmer v. Weltman: Consumer Must Assert Exemptions or Immunity to Garnishment, Not Debt Collector

A consumer alleged that a debt collector violated the FDCPA when it garnished his joint bank account despite knowing it contained entireties property immune from execution under Pennsylvania law.

Continue reading the summary here.

Borowski v. Ally Financial: Court Dismisses FCRA and CARES Act Claims as Lacking Private Right of Action

The court dismissed a consumer’s claims that a creditor improperly reported his loan as delinquent and charged off because the CARES Act and FCRA do not provide consumers with a private right of action for claims about the forbearance provision.

Continue reading the summary here.

March 16:

Fickel v. Clearwater Credit Union: Issue of Fact Remains About Dispute Investigation; Summary Judgment Denied

A consumer noticed that his credit card account was being reported twice on his credit report, and he disputed the debt several times with the CRAs. A data furnisher investigated the dispute and confirmed the information on the account was the same as the information on the report. The consumer sued the data furnisher for reporting inaccurate information.

Continue reading the summary here.

O’Leary v. TrustedID: 4th Circuit Finds No Standing Related to State ID Theft Protection Act

In remanding the case to state court, the 4th Circuit held that a consumer lacked standing to pursue his South Carolina Identity Theft Protection Act claims in federal court because he did not allege a concrete injury.

Continue reading the summary here.

Barton v. J.M.S. Assoc.: 9th Circuit Confirms Award of Treble Damages Under TCPA

Because Washington’s Automatic Dialing and Announcing Devise (WADAD) provision is substantially similar to the TCPA and prohibits the use of an automatic dialing and announcing device for purposes of commercial solicitation, a consumer winning a default judgment against a business for claims based on the TCPA was also entitled to damages under the WADAD.

Continue reading the summary here.

March 17:

Louis v. Deshmukh: Court Finds Summons and Complaint a Communication Under the FDCPA

A consumer claimed that a debt collector violated the FDCPA by including an allegedly unlawful collection fee in the amount it sought to recover from the consumer in a state court action. The debt collector moved to dismiss and moved for sanctions against the consumer.

Continue reading the summary here.

Bank of Am., N.A. v. Thomas: Inclusion of FDCPA Language in State Required Foreclosure Notice Violated State Law

A New York state court held that a bank violated state law by including the FDCPA validation notice in the same communication as a foreclosure notice required under state law.

Continue reading the summary here.

Rider v. Uphold HQ: Court Dismisses State Law Claims Based on Alleged Violation of Federal Law Lacking Private Right of Action

A New York state General Business Law claim is viable where the plaintiff makes a free-standing claim of deceptiveness under GBL Section 349 that happens to overlap with a possible claim under another statute that is not independently actionable. The claim fails where the violation of the other statute by conduct that is not inherently deceptive is claimed to constitute a deceptive practice that serves as the basis for the GBL Section 349 claim.

Continue reading the summary here.

Visit the Industry Advancement Fund webpage for more Daily Decision recaps and compliance resources.

If you’ve recently obtained a judicial opinion that might benefit other ACA members, email it to us: [email protected].

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