The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court’s order requiring a law firm to respond to interrogatories and requests for production of documents pursuant to a civil investigative demand promulgated by the Consumer Financial Protection Bureau. In so ruling, the Ninth Circuit cited prior Supreme Court separation-of-power opinions which indicate that the bureau’s restriction permitting removal of its director only by the president “for cause” did not violate the Constitution’s separation of powers doctrine to conclude that its structure was constitutionally permissible. The Ninth Circuit also held that the civil investigative demand was proper…
Posts tagged as “Ninth Circuit”
The U.S. Court of Appeals for the Ninth Circuit held that the Supreme Court of the United States’ decision in Americold Realty Trust v. ConAgra Foods, Inc. did not upset the Supreme Court’s prior holding in Navarro Ass’n v. Lee, and that “when a trustee files a lawsuit or is sued in her own name her citizenship is all that matters for diversity purposes.” Accordingly, the Ninth Circuit held that the trial court properly exercised its jurisdiction over the matter where the bank — acting as trustee — was sued in its own name, and along with the other named…
The U.S. Court of Appeals for the Ninth Circuit recently reversed a summary judgment award in favor of a student loan buyer, holding that triable issues of fact existed as to whether it had actual knowledge of or willfully ignored and thereby ratified the Telephone Consumer Protection Act (TCPA) violations of the debt collectors contracted by the owner’s servicer. A copy of the opinion in Henderson v. United Student Aid Funds is available at: Link to Opinion. The plaintiff received student loans through a federal program under which the owner of the loans “guarantees student loans made by private lenders and…
The U.S. Court of Appeals for the Ninth Circuit recently held that a government sponsored enterprise (“GSE”) that licensed underwriting software to lenders was not a consumer reporting agency under the federal Fair Credit Reporting Act. In so ruling, the Ninth Circuit determined that the GSE did not assemble or evaluate consumer information to furnish consumer reports to third parties. Instead, the GSE merely provided software to allow lenders to assemble or evaluate such information. A copy of the opinion in Zabriskie v. Federal National Mortgage Association is available at: Link to Opinion. The plaintiffs had a short sale after defaulting…
In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that a debtor who successfully challenges — as opposed to a debtor who defends — an award of attorney’s fees and costs for violations of the automatic stay under § 362(k) of the Bankruptcy Code is entitled to an award of appellate fees and costs. In so ruling, the Court reversed the trial court’s order denying the debtor’s motion for appellate attorney’s fees and costs, and remanded the matter to the trial court with instructions to remand to the bankruptcy court to calculate…
In a 2-1 decision, the U.S. Court of Appeals for the Ninth Circuit held that a putative class action against state entities and a private contractor for allegedly collecting and sharing personal data without authorization was essentially a local controversy and was therefore correctly remanded to state court under an exception in the federal Class Action Fairness Act (CAFA). Accordingly, the Ninth Circuit affirmed the ruling of the trial court remanding the matter to state court. A copy of the opinion in Kendrick v. Conduent State and Local Sols. is available at: Link to Opinion. The plaintiffs sought to maintain an action in…
The U.S. Court of Appeals for the Ninth Circuit recently held that Washington’s six-year statute of limitations governing contracts instead of the Truth in Lending Act’s one-year statute of limitations applies to claims to enforce rescission under TILA, after a notice of right to cancel was timely submitted. The Ninth Circuit also held that the trial court should have given the borrowers leave to amend the complaint because the borrower’s rescission claim under TILA was not time barred, and amending the complaint would not be futile. A copy of the opinion in Hoang v. Bank of America is available at: Link…
The U.S. Court of Appeals for the Ninth Circuit held that an online payday lender’s “loan note” violated § 5 of the Federal Trade Commission Act because, although it was “technically accurate,” the lender’s online loan portal made it difficult to discern the loan terms and therefore likely to mislead consumers about the terms of the loan. Accordingly, the Ninth Circuit affirmed the trial court’s summary judgment and relief order in favor of the FTC. A copy of the opinion in Federal Trade Commission v. AMG Capital Management, LLC is available at: Link to Opinion. The defendant owner controlled a series…
The U.S. Court of Appeals for the Ninth Circuit held that the trial court erred in awarding $8.7 million in attorneys’ fees in a class action settlement because it did not treat $20 credits issued as part of the settlement as “coupons” under the Class Action Fairness Act (CAFA). In so ruling, the Court held that, because the trial court included the full face value of the coupons in its calculation of the fee award, the “error require[d] recalculation of the fee award.” Accordingly, the Ninth Circuit vacated the trial court’s attorneys’ fee award. A copy of the opinion in…
The U.S. Court of Appeals for the Ninth Circuit recently held that the term automatic telephone dialing system (“ATDS”), as defined by the federal Telephone Consumer Protection Act, includes devices that store telephone numbers to be called, “whether or not those numbers have been generated by a random or sequential number generator.” Accordingly, the Ninth Circuit vacated the trial court’s order dismissing the plaintiff’s putative class action asserting violations of the TCPA, 47 U.S.C. § 227, et seq. A copy of the opinion in Marks v. Crunch San Diego, LLC is available at: Link to Opinion. In 2012, the plaintiff signed up…
The U.S. Court of Appeals for the Ninth Circuit recently reversed a trial court’s order remanding a putative class action lawsuit to state court on the ground that the defendant removing party failed to prove that the amount in controversy exceeded $5 million, as required for jurisdiction under the Class Action Fairness Act (CAFA). In so ruling, the Ninth Circuit held that the amount in controversy for jurisdiction under CAFA includes all attorney’s fees that the plaintiff would be entitled to under a contract or statute, including future fees incurred after the date of removal. A link to the opinion…
The U.S. Court of Appeals for the Ninth Circuit recently held that the plaintiff carries the burden of proving the debt collector’s net worth to obtain statutory damages in a class action under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. A copy of the opinion in Tourgeman v. Nelson & Kennard is available at: Link to Opinion. A consumer financed the purchase of a computer through an installment loan. When the consumer defaulted, the creditor charged off the account and sold the debt to a third party. The third party referred the account to a law…