December 2018 Update
The California Supreme Court approved a new set of Rules of Professional Conduct, effective as of Nov. 1, 2018. Citations to rules in this book have been corrected with the new rule numbers. See §§1.9–1.10, 1.12, 1.31, 1.43, 4.25.
A debtor had standing and was not subject to judicial estoppel for improperly scheduled causes of action when she disclosed claims as “FDCPA claims” in her schedules, and the trustee had the opportunity to consider and evaluate the claims. Roth v Solomon & Solomon, PC (ED NY, Feb. 5, 2018, No. 17–CV–0868(JS)(AKT) 2018 US Dist Lexis 18649. See §2.5.
The Ninth Circuit ruled that the defendants’ efforts to collect homeowner association fees through judicial foreclosure constituted “debt collection” under the federal Fair Debt Collection Practices Act (FDCPA). McNair v Maxwell & Morgan, P.C. (9th Cir 2018) 893 F3d 680. See §§2.9, 2.13, 2.19.
A mortgage transaction is a consumer credit transaction subject to the Rosenthal Act because buying a home is a personal, family, or household purpose for debt. Davidson v Seterus, Inc. (2018) 21 CA5th 283. See §2.20.
A debt collector’s conduct in reporting a delinquent credit account without adding a “disputed” notation after receiving notice from the consumer that the debt was disputed is misleading communication subject to the FDCPA. Evans v Portfolio Recovery Assoc., LLC (7th Cir 2018) 889 F3d 337. See §2.34H.
Although under the FDCPA a debt collector may not use unfair or unconscionable means to collect a debt, this provision may not be used to render every violation of state law a violation of the FDCPA and the unfair practice must be tethered to something otherwise not covered by the FDCPA. Marshall v CBE Group, Inc. (D Nev, Mar. 30, 2018, No. 2:16–cv-02406–GMN-NJK) 2018 US Dist Lexis 55223. See §2.35.
New statutory provisions effective January 1, 2019, provide that a debt collector may not collect or attempt to collect a time-barred debt without first sending a written communication to the debtor that includes certain specific notices. CC §1788.14(d). See §§2.34, 2.36A.
The Rooker-Feldman doctrine barred a challenge to a judgment delivered by default when the state court found that the judgment had been served. Nguyen v LVNV Funding, LLC (SD Cal, Feb. 6, 2018, No. 15cv758–LAB (RBB)) 2018 US Dist Lexis 19535. On the other hand, Rooker-Feldman did not prohibit a challenge to service of an underlying state court complaint. Britton v ABC Legal Servs., Inc. (ND Cal, June 29, 2018, No. 17–CV-07070–LHK) 2018 US Dist Lexis 110478. See §2.57.
A creditor’s letter acknowledging its error in a previous letter combined with an apology was a sufficient cure under the Rosenthal Act’s 15-day right to cure defense. (Watkins v Investment Retrievers, Inc. (ED Cal, Jan. 24, 2018, No. 2:17–cv-01348–KJM-CKD) 2018 US Dist Lexis 11717), but merely stopping harassing phone calls was not (Romero v Department Stores Nat’l Bank (9th Cir, Feb. 28, 2018, No. 16–56265) 725 Fed Appx 537 (unpublished opinion)). See §2.60.
A federal court denied “reverse” attorney fees under the FDCPA but awarded them under the Rosenthal Act because that act does not require a finding that the claim was brought for purposes of harassment. Forto v Capital One Bank, N.A. (ND Cal, Dec. 5, 2017, No. 14–cv–05611–JD (MEJ)) 2017 US Dist Lexis 201056. See §2.64.
The Consumer Financial Protection Bureau (CFPB) has made its annual adjustments for inflation to civil money penalties that may be assessed for violations of federal consumer financial law. 12 CFR §1083.1. See §§2A.24, 4.37.
The DC Circuit Court of Appeals has ruled on certain critical aspects of the FCC’s ruling in In re Rules & Regulations Implementing Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order (July 10, 2015) 30 FCCR 7961 (2015 Omnibus Ruling), which interprets the Telephone Consumer Protection Act (TCPA). In particular, the Circuit Court has set aside the FCC’s definition of automatic telephone dialing systems (ATDSs), putting the state and scope of the TCPA very much in flux. ACA Int’l v FCC (DC Cir 2018) 885 F3d 687. See §§2B.2, 2B.9, 2B.35–2B.36, 2B.37A, 2B.45–2B.47, 2B.47E.
Following the decision in ACA Int’l v FCC, the FCC has issued a Public Notice seeking comment on the scope and meaning of the TCPA in light of that decision. See 83 Fed Reg 26284 (June 6, 2018). See §§2B.2A, 2B.46.
The Sixth Circuit Court of Appeals has held that TCPA claims are remedial, not penal, and therefore survive the death of a plaintiff under federal law. Parchman v SLM Corp. (6th Cir, July 20, 2018, No. 17-5968) 2018 US App Lexis 20194. See §2B.13A.
Revocation of consent to be called can be conveyed through an agent or intermediary (such as a spouse). See Jara v GC Servs. (CD Cal, May 17, 2018, No. 2:17-cv-04598-ODW-RAO) 2018 US Dist Lexis 83522. See §2B.37C.
With respect to ratification of third party consent to be called under the TCPA, two circuit courts of appeals have issued opinions narrowly construing the doctrine. Kristensen v Credit Payment Servs. Inc. (9th Cir 2018) 879 F3d 1010; Hodgin v UTC Fire & Sec. Americas Corp. (4th Cir 2018) 885 F3d 243. See §2B.69.
The California Legislation has extended the ability of engineers and land surveyors to form and operate as professional LLP services until January 1, 2026. Stats 2018, ch 150. See §3.16.
The California Supreme Court ruled that, under California law, a loan contract may not include an interest rate term so high that it is “unreasonably and unexpectedly harsh,” “unduly oppressive,” or “so one-sided as to shock the conscience.” De La Torre v Cashcall Inc. (Aug. 13, 2018, No. S241434) 2018 Cal Lexis 5749. See §§4.31, 4.39.
In an action brought in California to collect credit card debt incurred by the defendant and in which debt was subject to a card member agreement with a choice of law provision stating that “Federal law and the law of Delaware” governed the agreement, the court ruled that the shorter Delaware statute of limitations controlled, rather than the longer California statute of limitations, even though the action was brought after the Delaware statute expired. Professional Collection Consultants v Lujan (2018) 23 CA5th 685. See §4.72.
A defendant forfeited his contention that a settlement amount represented unenforceable liquidated damages penalty because he failed to allege in trial court that the stipulated judgment provision in the settlement memo was unreasonable. Krechuniak v Noorzoy (2017) 11 CA5th 713. See §4.100.
A California appellate court affirmed the trial court’s judgment when the trial court reexamined its own decision and determined that the plaintiff’s claims should not have gotten through and a default judgment against the debtor should never have been entered. The appellate court took the opportunity to remind trial courts that they must vigilantly attend to their duty in connection with the default process. Grappo v McMills (2017) 11 CA5th 996. See §4A.21.
A writ and levy of a guarantor’s assets by co-guarantors, who had taken an assignment of the judgment against the debtor corporation, supported a cause of action for conversion. Duke v Superior Court (2017) 18 CA5th 490. See §4A.51.
The California Legislature has enacted changes to deposition notice requirements mandating that a notice of oral deposition must now be in at least 12-point type. CCP §2025.220(a). See §5.35.
A debtor’s mere occupancy of a property in escrow was insufficient to establish residency for purposes of the homestead exemption absent findings regarding the debtor’s intent to continue to reside in the property. Phillips v Gilman (In re Gilman) (9th Cir 2018) 887 F3d 956. See §9.82.
The Federal Rules of Bankruptcy Procedure were amended effective December 1, 2017. Among other things Fed R Bankr P 3002 was amended to alter the calculation of the bar date for filing proofs of claim in Chapter 7, Chapter 12, and Chapter 13 cases. See §12.89.
A bankruptcy estate’s 1-year delay in filing a fraudulent transfer action did not prevent a finding of equitable tolling of the limitations period under 11 USC §546(a)(1). Milby v Templeton (In re Milby) (9th Cir 2017) 875 F3d 1229. See §12.105.
A California appellate court held that CCP §366.2, which limits the time a claim may be filed against a decedent’s estate, applies to the time to bring a cause of action, not the time to enforce a judgment lien. County Line Holdings v McClanahan (2018) 22 CA5th 1067. See §14.2A.
In another case involving CCP §366.2 as applied to a widow’s action to recover her share of a condominium from her deceased husband’s estate, the court held that, in a conflict between the limitations periods in Fam C §1101 and the one in CCP §366.2, since Fam C §1101 was more specific than CCP §366.2, CCP §366.2 did not apply. Yeh v Tai (2017) 18 CA5th 953. See §14.2A.
A new section has been added in chap 14 listing the priority of payments of debts in a decedent’s estate under Prob C §11420. See §14.19A.
Postdeath recording of an abstract of judgment does not create a lien on an estate’s assets. Estate of Casserley (2018) 22 CA5th 824. See §14.19A.