Archive for January 2016

Florida Court Holds Voluntary Dismissal of Foreclosure Could Not Be Undone

The District Court of Appeal of Florida, Second District, recently reversed a trial court’s order vacating a voluntary dismissal based on mistaken advice from counsel regarding the statute of limitations, holding that the voluntary dismissal was the result of a deliberate judgment by counsel, and not the type of non-judgmental, clerical mistake that Florida law

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Illinois Bankruptcy Court Rejects Crawford, Finds Time-Barred Claims Permissible ­

A recent decision from a United States Bankruptcy Court in the Northern District of Illinois provides a detailed analysis of why proofs of claim on “time-barred” debt do not violate the federal Fair Debt Collection Practices Act (FDCPA) or the Bankruptcy Code. The decision, Glenn v. Cavalry Investments, LLC, is among the growing number of

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Parsing the CFPB’s EFTA Bulletin

The Consumer Financial Protection Bureau issued a bulletin on Nov. 23, 2015 “intended to remind entities of their obligations under the Electronic Fund Transfer Act (EFTA) and Regulation E.” A careful read is needed, as Bulletin 2015-06 can be easily misinterpreted. A copy is available at:  Link to Bulletin 2015-06. Electronic transfers become subject to

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MD Fla Holds Bankruptcy Code Precludes FDCPA Claim for Filing POC on Time-Barred Debt

The U.S. District Court for the Middle District of Florida recently dismissed allegations that a debt buyer violated the federal Fair Debt Collection Practices Act by filing a proof of claim on time-barred debt, holding that such claims are precluded by the Bankruptcy Code, and that the FDCPA does not provide a private right of

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2nd Cir. Holds Debtor Can Bring Post-Discharge FDCPA Claims in District Court

The U.S. Court of Appeals for the Second Circuit recently held that a debtor in bankruptcy can pursue claims under the federal Fair Debt Collection Practices Act in district court for trying to collect a discharged debt, reversing a judgment dismissing the FDCPA claims and requiring the plaintiff seek relief in bankruptcy court. A copy

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6th Cir. Upholds Rejection of ‘Robo-Signing’ Challenge to Foreclosure

The U.S. Court of Appeals for the Sixth Circuit recently rejected a borrower’s “robo-signing” challenge to his foreclosure.  In so ruling, the Court also held that a Michigan state court’s issuance of a preliminary injunction against a mortgagee in a foreclosure action did not bar subsequent removal and entry of summary judgment in favor of

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SCOTUS Holds Unaccepted Offer of Judgment Does Not Moot Class Actions

The Supreme Court of the United States recently held that a class action defendant cannot “pick off” the named plaintiff and thereby render the case moot by simply offering full relief by way of settlement offer or offer of judgment under Federal Rule of Civil Procedure 68. However, as the majority acknowledges, the Court also

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Florida Court Reverses Dismissal of Foreclosure, Holds Evidence Was Sufficient

The Third District Court of Appeal, State of Florida, recently reversed a trial court’s dismissal of foreclosure proceedings due to a ruling that a lost note was not properly re-established, holding that the trial court should have entered judgment for the plaintiff mortgagee because the plaintiff mortgagee met the statutory requirements for re-establishing the lost

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Florida Appellate Court Rejects Borrower’s Alleged Oral Modification of Mortgage Loan

The District Court of Appeal of the State of Florida, Fourth District, recently reversed a final judgment in favor of a borrower based on an alleged oral modification of the mortgage and the doctrine of promissory estoppel, holding that because the mortgage fell within the statute of frauds, it could not be orally modified, and

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SDNY Dismisses TCPA Class Action, Holding No Direct or Vicarious Liability Adequately Pled

The U.S. District Court for the Southern District of New York recently dismissed a putative class action alleging violations of the federal Telephone Consumer Protection Act (TCPA) against a marketing company that conducted a mass text message advertising campaign on behalf of a national retail clothing store. In so ruling, the Court held that:  (1)

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Bankruptcy Court Holds Mortgagee’s Secured Claim Not Time-Barred

The U.S. Bankruptcy Court for the Middle District of Florida recently overruled a debtor’s objection to a mortgagee’s secured claim and denied the debtor’s motion to determine secured status, holding that the issues should have been brought by adversary proceeding, and in any event neither Florida’s statute of limitations nor its statute of repose barred

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FTC’s Big Data Report Provides Recommendations, Raises Compliance Issues

The Federal Trade Commission has released a report examining the benefits, potential risks, and legality of the use of big data in business. Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues focuses on how big data is used after it is collected and how that information could result in discrimination against consumers.

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