Consumer Finance Litigation Bulletin

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By: Saul Ewing Arnstein & Lehr

Latest from Consumer Finance Litigation Bulletin - Page 2

New Jersey Appellate Division Rejects Consumer’s Attempt to Declare Arbitration Provision Invalid Under New Jersey Plain Language Act

In a recent unpublished opinion, Maisano v. LVNV Funding, LLC, No. A-1775-18T2, 2019 WL 6341035 (App. Div. Nov. 27, 2019), the New Jersey Appellate Division upheld the trial court’s order compelling Maisano (the “consumer”) to arbitrate his claims against LVNV Funding, LLC (“defendant”), an entity that acquires outstanding credit card accounts and collects the balances. In this case, the consumer entered into a credit card agreement with Credit One (“Agreement”) and as a result of the consumer’s failure to make payments

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Continue Reading New Jersey Appellate Division Rejects Consumer’s Attempt to Declare Arbitration Provision Invalid Under New Jersey Plain Language Act

IF THE SHIELD AGAINST AT-WILL TERMINATION OF THE CFPB’S DIRECTOR IS UNCONSTITUTIONAL, WHAT NEXT?

The U.S. Supreme Court has already agreed to consider in the matter of Seila Law v. CFPB whether the for-cause requirement for the President’s dismissal of the Consumer Financial Protection Bureau’s (“CFPB”) director is unconstitutional as a violation of the separation of powers. Now the Court is being asked by All American Check Cashing to review the same issue but with a twist: if that for-cause termination requirement is unconstitutional, must all of the CFPB’s enforcement actions therefore be dismissed? For the CFPB, the Department of

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Continue Reading IF THE SHIELD AGAINST AT-WILL TERMINATION OF THE CFPB’S DIRECTOR IS UNCONSTITUTIONAL, WHAT NEXT?

The United States Supreme Court has granted certiorari in the matter of Seila Law LLC v. Consumer Financial Protection Bureau to address the question of whether the Consumer Financial Protection Bureau’s (CFPB) single-director structure and the President’s authority to remove the director only “for cause,” as prescribed by 12 U.S.C. § 5491(c)(3), violate the separation of powers. The Supreme Court also directed the parties to brief the question of whether, if the CFPB is found to be unconstitutional because of 12 U.S.C § 5491(c)(3), that section can be severed from Dodd-Frank Act, which established the CFPB. Interestingly, the Court did…
Continue Reading Will Dismissal Only “For Cause” Be the Downfall of the CFPB?

Trump Administration Seeking Presidential Authority to Remove CFPB Director, asking Supreme Court to Decide

As the CFPB is currently structured, the head of the CFPB may only be ousted by the President for good cause. However, the Trump Administration is asking the Supreme Court to take up a case[1] on certiorari to decide the issue of the CFPB’s constitutionality, ultimately seeking to allow the President the power to fire the head of the CFPB at will.
The CFPB has been under attack throughout the Trump Administration regarding its leadership structure, some arguing that it is unconstitutional to have a

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Continue Reading Trump Administration Seeking Presidential Authority to Remove CFPB Director, asking Supreme Court to Decide

11th Circuit Finds Receipt Of A Single Unsolicited Text Message Fails To Confer Article III Standing Under The TCPA

In Salcedo v. Hanna, No. 17-14077 (11th Cir. Aug. 28, 2019), the 11th Circuit considered whether receipt of a single unsolicited text message was sufficient to confer Article III standing to sue for a violation of the Telephone Consumer Protection Act (“TCPA”). The court found it was not and in doing so, it rejected decisions from other U.S. circuit courts on this issue.
This putative class action arose from the plaintiff’s receipt of a single unsolicited text message on his

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Continue Reading 11th Circuit Finds Receipt Of A Single Unsolicited Text Message Fails To Confer Article III Standing Under The TCPA

CFPB Continues Its Enforcement In Less Than Traditional Areas of Consumer Protection; This Time it is Remittances

The Consumer Financial Protection Bureau (CFPB) announced on Tuesday, August 27, 2019 a consent order entered into with Maxitransfers Corp., a Texas-based money transmitter, following its investigation of Maxitransfers’ compliance with the Remittance Rule’s regulations concerning transmission error-resolution policies and consumer disclosures. The Remittance Rule was promulgated pursuant to The Dodd Frank Act and implements requirements of the Electronic Funds Transfer Act (EFTA). The CFPB found that Maxitransfers, which assists consumers in the US to remit money to Central and South America

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Continue Reading CFPB Continues Its Enforcement In Less Than Traditional Areas of Consumer Protection; This Time it is Remittances

New Jersey Appellate Division Curtails Prior Holdings Exempting “Semi-Professionals” from the Consumer Fraud Act

In a recent published decision, Shaw v. Shand,1 the New Jersey Appellate Division held that licensed semi-professionals are not “learned professionals” exempt from liability under the Consumer Fraud Act (“CFA”)2 simply because they are subject to an independent statutory or regulatory scheme.  Shaw was an appeal from a trial court decision entering summary judgment on the plaintiffs’ CFA claims in favor of a home inspector, holding that home inspectors are “semi-professionals” exempt from the CFA.
The “semi-professional” exemption was articulated by the Appellate Division in a

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Continue Reading New Jersey Appellate Division Curtails Prior Holdings Exempting “Semi-Professionals” from the Consumer Fraud Act

Third Circuit Holds that Inclusion of “Quick Response” Codes on Envelope Violates the Fair Debt Collection Practices Act

In a precedential opinion, DiNaples v. MRS BPO, LLC, the Third Circuit held that adding an unencrypted “quick response” or “QR” code to an envelope containing a debt collection letter violates 15 U.S.C. § 1692f(8) of the Fair Debt Collection Practices Act (“FDCPA”).i That section limits what collection agencies can include on envelopes, prohibiting “language or symbols” other than the debt collector’s address.  
The DiNaples panel extended the Third Circuit’s 2014 decision in Douglass v. Convergent Outsourcing, which held that a

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Continue Reading Third Circuit Holds that Inclusion of “Quick Response” Codes on Envelope Violates the Fair Debt Collection Practices Act

New York Department of Financial Services’ Title Insurance Regulation Vacated, Again? On to the Court of Appeals

On August 5, 2019 a New York state court, on remand from the Appellate Division, again determined that Section 228.2(c) of the New York Department of Financial Services’ (DFS) Title Insurance Regulation was unconstitutionally vague and thus could possibility be applied arbitrarily and capriciously.
Section 228.2(c) requires that title insurance underwriters and agencies making political or charitable donations and spending on advertising do so in a manner that is “reasonable and customary,” and not do so in a manner that is “lavish or

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Continue Reading New York Department of Financial Services’ Title Insurance Regulation Vacated, Again? On to the Court of Appeals

New York Bill Targeting Robocalls Could Significantly Increase Exposure for Financial Services Companies

A New York law aimed at curbing robocalls could significantly increase risk for companies relying on auto-dialers or prerecorded calls to contact customers. The “Robocall Prevention Act” would ban calls and text messages using equipment from numbers stored on a list, or equipment that uses random or sequential number generators, unless the caller shows that “substantial additional human intervention” to dial the call is required after a person initiates the call.[1] The bill outright bans calls using an artificial or prerecorded voice. These prohibitions

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Continue Reading New York Bill Targeting Robocalls Could Significantly Increase Exposure for Financial Services Companies

In Consumer Financial Protection Bureau v. Seila Law LLC, 2019 WL 1985350 (9th Cir. May 6, 2019), the Ninth Circuit followed the earlier decision of the D.C. Circuit in PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc), in holding that the single-director structure of the Consumer Financial Protection Bureau (CFPB) is constitutional. The constitutional challenge was raised by a law firm, Seila Law LLC, that provided debt relief services to consumers. Seila Law received a civil investigative demand (CID) from the CFPB and it refused to comply with it. The CFPB then…
Continue Reading Ninth Circuit Finds No Problem With The CFPB’s Single-Director Structure

Second Circuit Decision has Implications for Native American Sovereign Immunity and Predatory Lending Practices

On April 24, 2019, the U.S. Court of Appeals for the Second Circuit issued its decision in the case of Gingras v. Think Finance, Inc., 2019 WL 1780951 (2d Cir. April 24, 2019), a decision with far-reaching implications on Native American sovereign immunity and predatory lending practices. 
From July 2011 through July 2013, plaintiff-appellees Jessica Gingras and Angela Given borrowed various amounts, ranging from $1,000 to $3,000, from Plain Green, LLC. Plain Green operates as a “tribal lending entity wholly owned by the Chippewa Cree Tribe

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Continue Reading Second Circuit Decision has Implications for Native American Sovereign Immunity and Predatory Lending Practices

Does Your Arbitration Agreement Cover Arbitration of Class Actions? The U.S. Supreme Court Rules that It Does Not, Unless It Expressly Says So.

In Lamps Plus Inc. v. Varela, 587 U. S. ___, 2019 WL 1780275 (Apr. 24, 2019), the U.S. Supreme Court ruled 5-4 that under the Federal Arbitration Act (FAA), an arbitration provision in an employment agreement that is “ambiguous” does not provide a strong enough basis for concluding that the parties intended to submit to class action arbitration. The Court had previously considered in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010), the

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Continue Reading Does Your Arbitration Agreement Cover Arbitration of Class Actions? The U.S. Supreme Court Rules that It Does Not, Unless It Expressly Says So.

New Jersey District Court Denies Furnisher’s Attempt To Dismiss FCRA Claim At The Outset Of Case

In Fumelus v. Experian Information Solutions, Inc., 2019 WL 1509140 (D.N.J. Apr. 5, 2019), the plaintiffs alleged that defendant Diamond Resorts (“Diamond”) violated the FCRA by furnishing false information about their account. They alleged that Diamond erred in reporting: (i) the debt was owed to Diamond, instead of Tempus Palms; (ii) the tradeline was “open,” when it had already been charged off; and (iii) the outstanding balance on the debt was greater than it actually was.                 
Diamond moved to dismiss the plaintiffs’ claims

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Continue Reading New Jersey District Court Denies Furnisher’s Attempt To Dismiss FCRA Claim At The Outset Of Case

Recently, joined by former CFPB Director Richard Cordray, California Assemblywoman Monique Limon (D-Santa Barbara) told a press gathering that she planned to introduce legislation to create a state-level version of the federal Consumer Financial Protection Bureau (CFPB), either by raising the budget of the state’s Department of Business Oversight (DBO) or through the creation of a new state agency. “We are working to really rethink what a state CFPB would do,” Limon said. “We see the presence of predatory lending products in auto loans, payday loans, cash advance and small business loans.” However, given the March announcement by Gov. Gavin…
Continue Reading To Mini-CFPB or Not To Mini-CFPB? That’s the Question for California

The Federal Trade Commission (FTC) publishes a comprehensive annual update detailing the significant actions it has taken to protect American consumers’ privacy and data security. For the 2018 calendar year, the FTC’s update detailed the following actions.
Prosecutions
General Privacy Cases

  • The FTC and the State of Nevada obtained a court order from the U.S. District Court for the District of Nevada shutting down revenge porn website MyEx.com and ordering the operators of the website to pay more than $2 million. In their complaint, the FTC and the State of Nevada alleged that the website solicited intimate and sexually explicit

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Continue Reading FTC Privacy and Data Security Report for 2018