Articles Posted in U.S. 10th Circuit Court of Appeals

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Plaintiff-appellee Randy Howard sought to bring a class action suit against Ferrellgas Partners, LP in federal district court for allegedly overcharging him and other customers. Ferrellgas moved to force plaintiff to pursue his individual claim alone, in arbitration, arguing that arbitration was the procedure the parties had agreed to. The district court was unable to conclude that the parties agreed to arbitrate. Rather than proceed to trial as the Federal Arbitation Act required, the district court entered an order denying arbitration outright. The Tenth Circuit concluded that denial was error: "When it's apparent from a quick look at the case that no material disputes of fact exist, it may be permissible and efficient for a district court to decide the arbitration question as a matter of law through motions practice and viewing the facts in the light most favorable to the party opposing arbitration. . . . Parties should not have to endure years of waiting and exhaust legions of photocopiers in discovery and motions practice merely to learn where their dispute will be heard. The Act requires courts process the venue question quickly so the parties can get on with the merits of their dispute in the right forum. It calls for a summary trial — not death by discovery." View "Howard v. Ferrellgas Partners, et al" on Justia Law

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Plaintiff-Appellant Gerald Eller argued that since the 1990's, defendant-appellee Trans Union, LLC included multiple erroneous entries on his credit report. In this third case against the company, plaintiff brought his claims under the Fair Credit Reporting Act. Specifically, plaintiff argued that Trans Union willfully and negligently violated the FCRA with the entries on his report. Trans Union counterclaims, arguing that plaintiff had breached the terms of a 2006 settlement agreement. A jury returned a verdict in Trans Union's favor on all issues. Plaintiff appealed, arguing multiple errors at trial. Finding none, the Tenth Circuit affirmed. View "Eller v. Trans Union" on Justia Law

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The issue before the Tenth Circuit in this case centered on a written consumer contract for the sale of goods and whether it incorporated by reference a separate document entitled "Terms of Sale" which was available on the seller's website, but that the contract stated that it was "subject to" the seller's "Terms of Sale" but does not specifically reference the website? Finding no controlling precedent, the Tenth Circuit decided to certify the question to the Oklahoma Supreme Court. View "Walker, et al v. BuildDirect.com Technologie" on Justia Law

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This was a FDCPA action stemming from proceedings that occurred in a debt collection action filed by Defendant Abby Shadakofsky against Plaintiff-Appellant George James in Wyoming state court in August 2011. Shadakofsky retained Defendant-Appellee Cheryl Wadas, a licensed attorney whom Shadakofsky had a previous retainer agreement, to represent her on an as-needed basis. James asserted that Wadas, and Shadakofsky vicariously as Wadas's principal, violated the FDCPA by: (1) representing that legal fees were $3,000 when the underlying debt did not provide for the recovery of legal fees; (2) serving and filing an untimely answers/replies to the counterclaims; and (3) serving discovery requests in relation to the counterclaims. The district court granted summary judgment in favor of Wadas. Shadakofsky subsequently moved to dismiss the vicarious liability claim against her and the district court granted the motion. James appealed the district court's grant of summary judgment. At issue before the Tenth Circuit was the district court's interpretation of the term "debt collector" under the FDCPA, and its conclusion that Wadas was not a "debt collector" because she did not engage in debt collection "regularly." The Tenth Circuit agreed with the district court's analysis and affirmed. View "James v. Wadas, et al" on Justia Law

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After a bench trial, the federal district court found that Appellant Maggie Chapman violated the "assisting and facilitating" provision of the Telemarketing Sales Rule, 16 C.F.R. 310.3(b). A consumer protection action was brought by the Federal Trade Commission and four states against several individual and corporate defendants who marketed and sold to consumers grant-related goods and services with false representations that the consumers were guaranteed or likely to receive grants. After the claims against the other defendants were settled or adjudicated by entry of summary judgment, the district court held a bench trial on the remaining claim against Ms. Chapman. Following the trial, the court found that Ms. Chapman violated the Telemarketing Sales Rule by providing substantial assistance to telemarketing defendants while knowing or consciously avoiding knowing of their deceptive telemarketing practices. The court accordingly ordered a permanent injunction and $1,682,950 in monetary damages against Ms. Chapman. The court also denied Ms. Chapman's post-judgment motion to alter or amend the judgment or, alternatively, for remittitur. Ms. Chapman appealed both the finding she violated the Telemarketing Sales Rule and the denial of her post-judgment motion. Not persuaded that the district court's underlying factual findings were clearly erroneous, and concluding that the district court did not abuse its discretion in denying Ms. Chapman's post-judgment motion, the Tenth Circuit affirmed the lower court's decision. View "Fed. Trade Comm'n v. Chapman" on Justia Law

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Plaintiff Glen Llewellyn filed this action asserting a Fair Debt Collection Practices Act claim, a Fair Credit Reporting Act claim, and a state law outrageous conduct claim against Ocwen Loan Servicing LLC and Nomura Credit and Capital, Inc. (collectively, the Ocwen Defendants) based on their alleged credit reporting inaccuracies, and asserting an FDCPA and an outrageous conduct claim against Castle Meinhold & Stawiarski, LLC in connection with foreclosure actions CMS took against Plaintiff. The district court granted summary judgment for the Defendants on each of Plaintiff's claims. Plaintiff appealed, arguing summary judgment was inappropriate on his FCRA and FDCPA claims. Upon review of the matter, the Tenth Circuit reversed the portion of the district court's order granting summary judgment to the Ocwen Defendants on Plaintiff's FCRA claim based on his alleged emotional damages and remanded the case for further proceedings. The district court's order was otherwise affirmed. View "Llewellyn v. Allstate Home Loans" on Justia Law

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Plaintiff-Appellant Adriana Berneike appealed the district court’s dismissal of her Real Estate Settlement Procedures Act (RESPA), Utah Consumer Sales Protection Act (UCSPA), and breach of contract claims asserted against CitiMortgage, Inc. (Citi). In 2010, Plaintiff faxed twenty-eight different letters to Citi, her mortgage loan servicer, asserting that Citi was incorrectly billing her for overcharges and improper fees. She faxed a two more rounds of different letters, insisting Citi was overcharging her. Citi replied that Plaintiff's account was correct and that taxes and an escrow shortage caused billing fluctuation. Several months later, Plaintiff sent a third round of fort-seven different letters to Citi claiming billing errors. Altogether, Plaintiff faxed more than one hundred letters to Citi, and claimed that despite paying in full every bill she received, she continued to be overcharged and was facing foreclosure and bankruptcy. Plaintiff then filed suit in Utah state court. Among other damages, she sought $1,000 per violation of RESPA. Citi removed the case to federal court, and the court subsequently granted Citi's motion to dismiss Plaintiff's claims. Finding that the federal court did not err by dismissing Plaintiff's claims, the Tenth Circuit affirmed the lower court's decision. View "Berneike v. CitiMortgage, Inc." on Justia Law

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Plaintiffs Kathleen and Terry Kirch appealed the district court's grant of summary judgment in favor of Defendants United Telephone Company of Eastern Kansas and Embarq Management Company (collectively "Embarq") on their claim that Embarq intercepted their Internet communications in violation of the Electronic Communications Privacy Act of 1986 (ECPA). Embarq is an Internet service provider (ISP). The alleged interceptions occurred when Embarq authorized NebuAd, Inc., an online advertising company, to conduct a technology test for directing online advertising to the users most likely to be interested in the ads. The Tenth Circuit affirmed the grant of summary judgment: "Although NebuAd acquired various information about Embarq users during the course of the technology test, Embarq cannot be liable as an aider and abettor. And it was undisputed that Embarq's access to that information was no different from its access to any other data flowing over its network. Because this access was only in the ordinary course of providing Internet services as an ISP, this access did not constitute an interception within the meaning of the statute." View "Kirch v. Embarq Management Co." on Justia Law

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Plaintiffs Gayen Hancock, David Cross, Montez Mutzig, and James Bollinger sought to represent a class of customers dissatisfied with "U-verse," a digital telecommunications service offered by Defendants AT&T and several of its subsidiaries. The Oklahoma federal district court dismissed their claims based on forum selection and arbitration clauses in the U-verse terms of service. Plaintiffs appealed the dismissal of their claims. Finding no error in the district court's interpretation of the terms of service, and finding no abuse of the court's discretion, the Tenth Circuit affirmed the dismissal of Plaintiffs' claims. View "Hancock v. American Telephone & Telegraph Company, Inc." on Justia Law

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In 2007, while Plaintiffs-Appellants Scott and Lisa Sanders were attempting to refinance their home, they discovered Salt Lake City Credit Union had “reported twelve new maxed-out accounts on the Sanders[es]’ credit [reports].” They say this “destroyed [their] credit and made it impossible to refinance.” Afterward, the credit union “apologized for the misreporting” and “offered to make amends by providing [them] with a ‘free’ refinance.” They accepted this conciliatory offer and closed on the refinancing loan in July 2007. Salt Lake City Credit Union later merged with appellee Mountain America. In March 2009, the Sanderses applied to Mountain America to again refinance their loan. They completed the application by phone, but Mountain America denied their application at the end of the call. Pertinent to this appeal, the Sanderses’ complaint alleged: (1) they had not been provided with the disclosures required under the Truth-in-Lending Act (TILA) thereby entitling them to invoke statutory rescission; (2) Mountain America violated the Equal Credit Opportunity Act (ECOA) when it failed to provide a notice of adverse action after denying their application for refinancing; and (3) Mountain America’s inaccurate credit reporting violated the Fair Credit Report Act (FCRA). The district court dismissed these claims on the pleadings. Although the Tenth Circuit had not addressed the issue, several circuits allow district courts to equitably condition the creditor’s duty on the borrower’s ability to repay the loan proceeds. In this case, however, the district court went further by concluding a borrower seeking to compel rescission must plead ability to repay. The court invoked this rule to dismiss the TILA rescission claim of the Sanderses. It also dismissed their claims under the Equal Credit Opportunity Act and Fair Credit Reporting Act. Upon review, the Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings: the Court affirmed with respect to the FCRA claim and reversed with respect to the TILA rescission and ECOA claims. View "Sanders v. Ethington" on Justia Law