In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that a prospective employer violated the federal Fair Credit Reporting Act by including a liability waiver in the same document as the statutorily required disclosure notice for obtaining a job applicant’s consumer report. In so ruling, the Ninth Circuit held that the company’s conduct was “willful” as a matter of law, because the language of the statute clearly contradicted the company’s interpretation, and whether or not the company “actually believed that its interpretation was correct is immaterial.” A copy of the opinion in…
Posts tagged as “Ninth Circuit”
The U.S. Court of Appeals for the Ninth Circuit recently held that class action plaintiffs are not required to demonstrate that there is an administratively feasible way to determine who is in a class in order for the class to be certified. In so ruling, the Ninth Circuit noted that the Sixth, Seventh, and Eighth Circuits have similarly ruled. See Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 995–96 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015),…
The U.S. Court of Appeals for the Ninth Circuit recently held that the trustee of a California deed of trust securing a real estate loan was not a “debt collector” under the federal Fair Debt Collection Practices Act, because the trustee was not attempting to collect money from the borrower. In so ruling, the Court held that “actions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect ‘debt’ as that term is defined by the FDCPA.” The Court also vacated the dismissal of the borrower’s federal Truth…
9th Cir. Holds Car Dealer Failed to Provide ‘Completed Inspection Report’ as to ‘Certified’ Used Car
9th Cir. Holds Car Dealer Failed to Provide ‘Completed Inspection Report’ as to ‘Certified’ Used Car
The U.S. Court of Appeals for the Ninth Circuit recently held that a car dealership inspection certificate violated California statutory law that required that a vehicle seller provide a “completed inspection report” prior to the sale of any “certified” used car.
The U.S. Court of Appeals for the Ninth Circuit, in a case of first impression and the first published circuit court opinion to address the issue, recently held that each and every debt collector — not just the first one to communicate with a debtor — must send the debt validation notice required by the federal Fair Debt Collection Practices Act. A copy of the opinion in Hernandez v. Williams Zinman & Parham is available at: Link to Opinion. A consumer financed the purchase of her automobile, but stopped making payments on the loan. A debt collection company sent her a…
The U.S. Court of Appeals for the Ninth Circuit recently held that there is no federal Fair Debt Collection Practices Act (FDCPA) violation if a subsequent communication is sufficient to disclose to the least sophisticated debtor that the communication was from a debt collector, even without expressly stating “this communication is from a debt collector.” In reaching the conclusion, the Court gave weight to the extensive communication between the debtor and debt collector, prior to the debt collector’s employee leaving a voicemail in which the employee stated he was from the debt collector. A link to the opinion in Davis v.…
The U.S. Court of Appeals for the Ninth Circuit recently held that the Nevada homeowners association foreclosure statute facially violated mortgage lenders’ constitutional due process right, and that the Nevada legislature’s enactment of a statute governing foreclosure of liens by HOAs constituted “state action.” A copy of the opinion in Bourne Valley Court Trust v. Wells Fargo Bank, N.A. is available at: Link to Opinion. A purchaser of Nevada real estate who acquired title at a homeowners association foreclosure sale brought an action in Nevada state court seeking to quiet title and a declaration against the mortgage lender, as holder of…
The U.S. Court of Appeals for the Ninth Circuit recently held that the discovery rule applies equally regardless of the nature of the federal Fair Debt Collection Practices Act (FDCPA) violation alleged by a plaintiff. Therefore, according to the Ninth Circuit, the FDCPA statute of limitations begins to run in all cases when the plaintiff knows or has reason to know of the injury which is the basis of the action. A copy of the opinion in Lyons v. Michael & Associates is available at: Link to Opinion. The plaintiff consumer filed a lawsuit against the defendant debt collector alleging it…
In a consolidated multi-district litigation putative class action involving allegations of improper handling of HAMP loan modifications by a large mortgage servicer, the U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court’s order denying the putative class plaintiffs’ motion for class certification, holding that the district court correctly determined that individual issues predominated over common issues. The opinion was not published, and is non-precedential. A copy of the opinion in Hanna Bernard v. CitiMortgage Inc. is available at: Link to Opinion. Among other things, the putative class plaintiffs alleged that the defendant servicer supposedly improperly denied permanent…
The U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of a federal False Claims Act (FCA), 31 U.S.C. §§3729-3733, lawsuit brought by private citizen plaintiffs against various mortgage lenders and servicers for supposedly making false certifications regarding loans sold to Fannie Mae and Freddie Mac. In so ruling, the Court held that Fannie Mae and Freddie Mac were not federal instrumentalities for purposes of the FCA, 31 U.S.C. § 3729(b)(2)(A)(i). A copy of the opinion in U.S. ex rel. Adams et al. v. Aurora Loan Services Inc. et al. is available at: Link to Opinion. The plaintiff…
The U.S. Court of Appeals for the Ninth Circuit recently held that, under California law, a two-year delay in failing to investigate the facts entitling a party to rescind a foreclosure sale transaction barred that equitable remedy, even though there was a genuine issue of material fact as to whether the plaintiff foreclosure buyer could have discovered material defects before the foreclosure sale. A copy of the opinion in DM Residential Fund II v. First Tennessee Bank is available at: Link to Opinion. A mortgagee (“lender”) initiated a non-judicial foreclosure of residential real estate in California, and sold that property at a foreclosure sale to…
In an unreported ruling, the U.S. Court of Appeals for the Ninth Circuit recently affirmed summary judgment for the defendant in a putative class action for alleged violation of the federal Telephone Consumer Protection Act (TCPA). The Court held that the named plaintiff expressly consented to the text message in question when she provided her cell phone number to a third party contracting with the defendant while using the third party’s services. A link to the opinion in Baird v. Sabre, Inc. can be found here: Link to Opinion. The named plaintiff booked flights online for herself and her family…