Archive for September 2015

Mass. Federal Court Imposes FCRA Preemption on State Law Claims

The United States District Court for the District of Massachusetts recently held that the federal Fair Credit Reporting Act (FCRA) preempts Massachusetts state law claims for violations of the Massachusetts Credit Reporting Act, Mass. Gen. Laws ch. 93, § 54A, and the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A. The decision also held

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Florida Appellate Court Confirms Mortgagee Need Only Prove FMV to Obtain Foreclosure Deficiency Judgment

The District Court of Appeal of Florida, Fifth District, recently reversed the denial of a motion for deficiency judgment in a foreclosure action, holding that the trial court erroneously required the mortgagee to introduce into evidence the final judgment of foreclosure previously entered in the same case to demonstrate the amount of debt owed. A

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SD Fla. Provides Mixed Ruling on RESPA RFI Responses, Property Inspection Fees Assessed Post-Default

The U.S. District Court for the Southern District of Florida recently dismissed with prejudice a borrowers’ allegations that a loan servicer’s response to their request for information regarding drive-by property inspections violated the federal Real Estate Settlement Procedures Act (RESPA), and dismissed the remaining state-law allegations that the drive-by inspections violated the Florida Consumer Collection

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Florida Appellate Court Holds Statute of Limitations Did Not Bar Re-Filed Foreclosure

The District Court of Appeal of the State of Florida for the First District recently held that the statute of limitations does not bar a second mortgage foreclosure action based on a subsequent default, regardless of whether the first case was dismissed with or without prejudice. A copy of the opinion is available at: Link

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9th Circ. Reverses Denial of Class Certification in RESPA Section 8 Action

The U.S. Court of Appeals for the Ninth Circuit recently held that the district court abused its discretion in denying a plaintiff’s motion to certify a class of home buyers alleging that a scheme involving a title insurer buying minority interests in title agencies in exchange for referral of future title insurance business violated the

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ND Calif. Rejects TCPA Claim, Holds ‘Human Intervention’ Precluded ATDS

The U.S. District Court for the Northern District of California recently held that a web-based platform used to send text messages was not an automatic telephone dialing system (ATDS) under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, because it required “human intervention…in several stages of the process” for sending the text

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FCC Ruling: E-Faxes Now Subject to Consumer Protections Under TCPA

Unsolicited e-faxes — documents converted to an email or attachment between the faxer and a recipient — are subject to the same consumer protections as unsolicited conventional faxes, according to a recent Federal Communications Commission declaratory ruling. The ruling built upon certain provisions of the Telephone Consumer Protection Act and the Junk Fax Protection Act,

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NY High Court Rules Deficiency Judgment Properly Denied for Lack of Evidence of Property Value

The New York Court of Appeals recently affirmed a trial court’s denial of a motion for deficiency judgment because the lender presented conclusory, insufficient evidence about the value of the property. In so ruling, the Court held that, even with uncontested deficiency motions, a lender that has foreclosed must present satisfactory evidence about the value

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Maurice Wutscher Opens Boston Office

National financial services law firm Maurice Wutscher LLP has opened a new office in Boston, hiring financial services attorney Brady Hermann to lead the firm’s Massachusetts litigation matters.  This brings the number of offices of Maurice Wutscher LLP to 12. Hermann will practice in the firm’s Commercial Litigation and Consumer Credit Litigation groups, joining Maurice

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Florida Court Rejects Mortgagee’s Attempt to Limit Liability for HOA Dues After Foreclosure

The Florida Second District Court of Appeal recently reversed a trial court’s order in a mortgage foreclosure action limiting the liability of a loan servicer who acquired title by foreclosure for past-due condominium assessments, holding that the trial court lacked subject matter jurisdiction because the specific issue of assessments was not litigated or adjudicated by

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6th Circ. Confirms Consent Under TCPA Can Be Obtained During Servicing, Collection

The U.S. Court of Appeals for the Sixth Circuit recently held that, under the federal Telephone Consumer Protection Act, a called party gives his “prior express consent” to be called on a cellular telephone number with an automatic telephone dialing system (ATDS) when that person gives his creditor his cellular telephone number in connection with

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