Archive for May 2016 – Page 2

How Spokeo May Limit Consumer Financial Services Litigation

Yesterday’s decision from the U.S. Supreme Court in Spokeo v. Robins should bolster the defense of companies subject to several federal consumer protection statutes. The ruling addresses lawsuits that claim an injury created solely by the violation of a federal statute and require the plaintiff to demonstrate not only that the statute was violated, but

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Supreme Court Holds Law Firms’ Use of AG Letterhead Does Not Raise ‘Specter of Consumer Confusion’

In a unanimous decision yesterday, the U.S. Supreme Court held that attorneys retained as independent contractors by the Ohio Attorney General to collect debts owed to the state do not violate the federal Fair Debt Collection Practices Act (FDCPA) when sending collection letters on Attorney General letterhead. In so ruling, the Court noted that the

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Fla. App. Court (4th DCA) Upholds Foreclosure in E-Note Case

The District Court of Appeal of Florida, Fourth District, recently upheld a trial court’s ruling that a plaintiff mortgage loan servicer had authority to initiate foreclosure proceedings against borrowers on a mortgage loan evidenced by an electronic note. The Fourth DCA also held that the e-note was a transferable record under the Uniform Electronic Transactions

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Calif. App. Court Upholds Dismissal of Allegations Contradicting Judicially Noticed Purchase and Assumption Agreement

The Court of Appeal of the State of California, First Appellate District, recently upheld a trial court’s demurrer without leave to amend in a case in which a judicially noticed Purchase and Assumption Agreement (“P&A Agreement”) contradicted the borrower’s allegations that a subsequent purchaser of the loan had no authority to foreclose on her property.

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5th Cir. Rejects Borrower’s Challenge to Lender’s Auto-Pay Services Under Texas DTPA

The U.S. Court of Appeals for the Fifth Circuit recently affirmed the dismissal of a borrower’s claims against her lender arising out of a foreclosure, holding among other things that alleged discrepancies as to the lender’s automatic payment withdrawal services did not state a claim under the Texas Deceptive Trade Practices Act (DTPA). In so

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7th Cir. Holds Customer Did Not Agree to Online Contract, Adopts ‘Reasonable Communicativeness’ Test

The U.S. Court of Appeals for the Seventh Circuit recently held that, under Illinois law, a website must provide a user reasonable notice that use of the website and a click on a button constitutes assent to the terms of an agreement, in order for the agreement to be binding. In so ruling, the Seventh

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Panel of Attorneys to Discuss Consumer Finance Class Actions, Gillie, Spokeo SCOTUS Cases in CLE Webinar

Join me on June 2 for a live webinar when I will be among a panel of plaintiff and defense attorneys discussing developments and trends in consumer finance class actions, including the Gillie and Spokeo U.S. Supreme Court cases. During the webinar, we will present effective strategies and approaches for pursuing or defending claims alleging violations of

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7th Cir. Confirms Borrower Lacks Standing to Raise Alleged Violations of Pooling and Servicing Agreement

The U.S. Court of Appeals for the Seventh Circuit recently held that a mortgagor is not a third-party beneficiary under a pooling and servicing agreement under New York law, and therefore lacks standing to challenge purported violations of assignments under the agreement. A copy of the opinion in In re Jepson is available at:  Link to

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WD NY Holds TCPA Claim Does Not Survive Death of Plaintiff, TCPA Damages ‘Wholly Disproportionate to Harm Suffered’

The U.S. District Court for the Western District of New York recently held that claims under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., are penal in nature and therefore do not survive the death of a plaintiff. In so ruling, the Court held that the TCPA’s provision of damages

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Fla. App. Court (3rd DCA) Holds Payment Defaults More Than 5 Years Old Not Recoverable

The Third District Court of Appeal, State of Florida, recently reversed a final judgment of foreclosure because the plaintiff mortgagee alleged the same payment default as the basis for its prior 2008 and 2014 foreclosure actions. The Third DCA held that on remand the trial court should calculate the correct amount owed for principal and

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ND California Holds 2015 TCPA Amendment Applies to Collection Calls Made in 2014

The U.S. District Court for the Northern District of California recently held that an amendment to the federal Telephone Consumer Protection Act (TCPA) enacted as part of the Bipartisan Budget Act of 2015 applies to calls made in 2014 “solely to collect a debt owed to or guaranteed by the United States,” and therefore granted

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CFPB’s Proposed Arbitration Rule Designed to Protect Consumer Financial Services Class Actions

The Consumer Financial Protection Bureau has released a proposal to prohibit creditors from using arbitration clauses to block class action litigation. The Bureau’s proposed ban is not surprising. However, it will only impact arbitration agreements concerning covered consumer financial products or services entered into after its effective date. Arbitration Clauses and Class Action Waivers Arbitration is

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