Archive for March 2016

Florida Court Holds Erroneous Legal Description Does Not Require Dismissal, Restart of Foreclosure

The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action, holding that the mortgagee was deprived of due process because the dismissal was entered sua sponte and without notice or opportunity to be heard, and because correction of an erroneous legal description did not

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2nd Cir. Holds ‘Habit and Routine Practice’ Evidence Proper in TILA, Common Law Fraud Action

The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s denial of a borrower’s post-verdict motions following the trial of federal Truth in Lending Act and common law fraud allegations. In so ruling, the Second Circuit held that: (1) the trial court properly admitted “habit and routine practice” evidence, over the

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Florida Court Holds Foreclosure Invalid as Mortgagee Did Not Meet Burden to Prove Standing

The District Court of Appeal of the State of Florida, Fourth District, recently reversed summary judgment of foreclosure in favor of a mortgagee, holding that the plaintiff mortgagee failed to satisfy its heightened burden of proving the absence of any genuine issue of material fact on the issue of standing applicable because the motion for

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Florida Court Reverses Dismissal of Foreclosure Due to Mortgagee’s Generic Witness Disclosure

The Third District Court of Appeal, State of Florida, recently reversed the dismissal of a mortgage foreclosure action based on the mortgagee’s failure to provide the name of the corporate representative who was to testify at trial, holding that dismissal was an overly harsh sanction given that no prejudice was shown. A copy of the

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7th Cir. Rejects Breach of Contract Allegations by Borrowers of Failed Bank Against Purchaser Bank

The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a breach of contract claim brought by a group of investors against a bank that purchased the assets of a failed bank in receivership, because there was no writing memorializing the alleged agreement, as required by the federal Financial Institutions Reform,

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WD North Carolina Grants Stay of TCPA Lawsuit Pending DC Circuit Challenge to FCC Order

The U.S. District Court of the Western District of North Carolina recently stayed proceedings in a suit pending the U.S. Court of Appeals for the District of Columbia’s ruling on challenges to the Federal Communication Commission’s Declaratory Ruling and Order, 30 FCC Rcd. 7961 (2015) (the “FCC Order”) under the federal Telephone Consumer Protection Act

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6th Cir. Reverses Dismissal of Class Action That Overlapped With Earlier-Filed Class Action

The U.S. Court of Appeals for the Sixth Circuit recently reversed a district court’s dismissal of a putative class action lawsuit, holding that while the district court was correct that the first-to-file rule applied because of a previous class action involving substantially the same parties and claims, it was an abuse of discretion to dismiss

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11th Cir. Upholds Sanctions in FDCPA Lawsuit Only Against Plaintiff’s Counsel

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a district court’s order requiring borrower’s counsel to pay a servicer’s attorney’s fees under Federal Rule of Civil Procedure 11, but reversed that part of the order that imposed sanctions jointly against both borrower and her attorney under the fee-shifting provision of the federal

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9th Cir. Affirms Denial of Class Certification in HAMP Loan Modification MDL

In a consolidated multi-district litigation putative class action involving allegations of improper handling of HAMP loan modifications by a large mortgage servicer, the U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court’s order denying the putative class plaintiffs’ motion for class certification, holding that the district court correctly determined that individual

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Ohio Supreme Court Rules Defectively Executed Mortgage Still Provides Constructive Notice

The Supreme Court of Ohio recently held that a mortgage defectively executed but properly recorded still provides constructive notice of its contents. A copy of the opinion in In re Messer is available at:  Link to Opinion. The borrowers executed a promissory note and a mortgage.  The notary acknowledgment on the mortgage was left blank.  The

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8th Cir. BAP Holds Lien Against Only One Tenant by Entirety Avoidable in Bankruptcy

The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently affirmed an order of the bankruptcy court granting a debtor’s motion to avoid a judgment creditor’s lien on the debtor’s residence held in tenancy by the entirety with his non-debtor spouse, holding because the lien “fixed” under the Bankruptcy Code and thus impaired the debtor’s

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11th Cir. Upholds Dismissal of FDCPA, FCCPA Complaint for Failure to State Claims

The U.S. Court of Appeals for the Eleventh Circuit recently upheld the district court’s dismissal of a borrower’s amended complaint against a loan servicer alleging claims under the Fair Debt Collection Practices Act (FDCPA)  and the Florida Consumer Collection Practices Act (FCCPA) for leaving a letter in the borrower’s mailbox, posting a letter to his

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