Archive for May 2015

2nd Circuit Holds Plaintiff’s Individual Claims Not Rendered Moot By Unaccepted Offer of Judgment

The U.S. Court of Appeals for the Second Circuit recently affirmed the denial of a motion to dismiss a putative class action, holding that the named plaintiff’s individual claims were not rendered moot by an unaccepted offer of judgment under Federal Rule of Civil Procedure 68. This case was decided before the U.S. Supreme Court

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Florida Court Holds Improper Notice of Default/Right to Cure Not Defense to Foreclosure Absent Showing of Prejudice

The Florida Fifth District Court of Appeal recently reversed a final judgment of foreclosure in favor of a mortgagee, holding that the mortgagee failed to prove it had standing to sue. In so ruling, the Fifth DCA also held that failure to provide at least 30 days to cure the default in the mortgagee’s notice of

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Webinar: Collecting Statutory Prejudgment Interest – The FDCPA Risks

Collecting statutory prejudgment interest in California did not violate the Fair Debt Collection Practices Act, under a decision earlier this month from the Ninth Circuit Court of Appeals. The decision, Diaz v Kubler, rejected the debtor’s contention that interest allowed by a California statute could not be collected unless a judgment was first entered. Decision

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FCC to Strengthen TCPA Rules in One of Biggest Actions Since Do-Not-Call List

FCC Chairman Tom Wheeler announced Wednesday that the FCC will move to protect consumers from unwanted robocalls and texts like never before by proposing new standards for TCPA regulation that will be voted on next month. Establishing new rules, closing loopholes, and simplifying the opt-out process for consumers are the three main goals of the proposal,

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7th Circuit Rules Secured Creditor Must File Timely Claim to Receive Chapter 13 Plan Distributions

The U.S. Court of Appeals for the Seventh Circuit recently held that a secured creditor must file its proof of claim no later than the 90-day deadline under Federal Rule of Bankruptcy Procedure 3002(c) in order to receive distributions under a Chapter 13 plan of reorganization. A copy of the opinion is available here:  Link to

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Florida Court Reverses Trial Court Order Dismissing Foreclosure With Prejudice Due to ‘Fraud on Court’

The Florida Third District Court of Appeal recently reversed a trial court’s order dismissing a mortgage foreclosure action with prejudice and cancelling the note and mortgage as a sanction, focusing on the mortgagee’s failure to amend the complaint and withdraw two affidavits filed in support of the allegedly “lost” note claim when it had later

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California Court Denies Motion to Compel Arbitration in TCPA Case

The U.S. District Court for the Northern District of California recently denied a motion to compel arbitration filed by two allegedly affiliated banks that issued department store credit cards, and the one of the issuing banks and another entity that serviced the cards, in a case alleging they violated the federal Telephone Consumer Protection Act by calling the

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Florida Court Holds UCC Article 9 Governs in Mortgage Fraud Dispute

The Florida Fourth District Court of Appeal recently held that the priority between two assignees of notes secured by the same mortgage due to fraud is determined by Article 9 of the Uniform Commercial Code and not the recording statute applicable to assignments of mortgage. The Court held that the transferee that first perfected its interest in

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U.S. Supreme Court to Take Up Whether Complete Relief to Class Litigant Moots Class Claims

Statutory damage claims, like those under the TCPA and the FCRA, will be scrutinized in the next session of the U.S. Supreme Court and its decisions could have broad implications for the financial services industry. Today we look at one of the cases the court will consider, Gomez v. Campbell-Ewald Co. The case considers whether an

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California Appeals Court Rules Probable Cause Defeats Malicious Prosecution Claim

The Court of Appeal of the State of California, Second Appellate District, recently affirmed the trial court’s ruling in favor a bank and its employee as to a plaintiff’s malicious prosecution claim. In so ruling, the Appellate Court held that the doctrine of the law of the case does not bar application of the doctrine

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NY Appeals Court Holds Statute of Limitations Does Not Bar Action to Cancel Mortgage

The New York Court of Appeals, the state’s highest court, recently held that the statute of limitations does not bar an action to cancel a mortgage based upon a forged deed. A copy of the opinion is available here. The plaintiff was the administrator of her deceased father’s estate. The decedent and his sister (the

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Florida Supreme Court Rules State-Sponsored Property Insurer Immune from Bad Faith Claims

The Supreme Court of Florida recently held that first-party insurer bad faith is not a ‘willful tort,’ and that, as a government entity that enjoys broad statutory immunity from suit, Citizens Property Insurance Corporation (“Citizens”) is consequentially immune from statutory first-party bad faith causes of action. In sum, the Supreme Court determined that the Florida

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