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McFarland v. Calusa Investments

July 20, 2007

ELAINE M. MCFARLAND INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CALUSA INVESTMENTS, LLC DOING BUSINESS AS NEXT DAY LOAN, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM ORDER

Pending before this court is a motion to dismiss filed by defendant Calusa Investments, LLC, doing business as Next Day Loan ("defendant" or "Calusa"). In her one count complaint, plaintiff Elaine McFarland ("plaintiff") alleges that Calusa violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., (the "FCRA") by disseminating a mortgage loan solicitation mailer (the "mailer") to plaintiff and others similarly situated, which was in violation of the FCRA. Specifically, plaintiff alleges that the mailer was not a firm offers of credit as defined by the FCRA, and therefore violated the FCRA.

Background

The mailer at issue included the following pertinent information:

* no restrictions on how you spend your money

* Calusa lends up to 125% of your home's value

* a faux check in the amount of $110,500 made payable to Elaine M. McFarland

* you've been pre-selected to take advantage of this exclusive offer

* use the money to totally erase your high interest debts

* you could get $5,000, $10,000 even $20,000 or more in cash for home improvements, to buy a car or to use for any purpose

* language that the information listed on the mailer was an example

* used an example of a loan in the amount of $110,500, that would be an adjustable rate mortgage (arm) with a rate of 7.99%, fixed for 3 years, a term of 360 months and an Annual Percentage Rate ("APR") of 10.895%

* interest rates may vary according to credit history and other factors

* origination fees and closing costs are included in the APR and ...


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