Archive for July 2016 – Page 2

11th Cir. Holds FCRA ‘Reasonable Investigation’ May Require Assignee to Examine Account-Level Documents

The U.S. Court of Appeals for the Eleventh Circuit recently reversed in part a trial court’s ruling granting summary judgment in favor of a debt buyer, its affiliated debt collector and their parent company, holding that a reasonable jury could find that the defendants willfully violated section 1681s-2(b) of the federal Fair Credit Reporting Act

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Illinois App. Court (2nd Dist) Holds Defect in Summons Voids Foreclosure

The Appellate Court of Illinois, Second District, recently held that a foreclosure judgment was void, where the foreclosing first mortgagee did not properly name a second mortgagee in its summons. A copy of the opinion in U.S. Bank National Association v. Johnston is available at:  Link to Opinion. In 1997, the defendant borrowers executed a mortgage

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8th Cir. Holds Time-Barred Proof of Claim Does Not Violate FDCPA, Disagreeing with 11th Cir.

The U.S. Court of Appeals for the Eighth Circuit recently held that “[a]n accurate and complete proof of claim on a time-barred debt is not false, deceptive, misleading, unfair, or unconscionable under the FDCPA.” In arriving at this holding, the Court declined to follow the Eleventh Circuit’s rulings in Crawford and Johnson. A copy of

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ED NY Denies Class Cert on ‘Ascertainability’ Grounds, Holds ‘Probing’ Questions in Dispute Call Did Not Violate FDCPA

The U.S. District Court for the Eastern District of New York recently granted summary judgment in favor of a debt collector, holding that the debt collector did not violate the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., by reporting a debt as “deleted” rather than “disputed,” and by asking probing questions

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7th Cir. Holds Appealability of Foreclosure Judgments to be Governed by Federal Law

The U.S. Court of Appeals for the Seventh Circuit recently held that as a matter of federal procedural law, a judgment of foreclosure is not a final and appealable judgment, even if state foreclosure law might provide otherwise. Here, the Court held that a Wisconsin judgment of foreclosure was not final and appealable when obtained

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1st Cir. Rejects Borrower’s Attempt to Permanently Enjoin Foreclosure Due to Cancellation of Prior Foreclosure Proceedings

The U.S. Court of Appeals for the First Circuit recently held that the cancellation of a foreclosure sale prohibits a borrower from obtaining a permanent injunction to bar a foreclosure, as they would not suffer irreparable harm. A copy of the opinion in Frangos v. Bank of America, N.A. is available at:  Link to Opinion.

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Fla. App. Court Reverses Foreclosure Despite Evidence Prior Servicer Did Not Receive Signed Loan Mod. Docs

The District Court of Appeal of Florida, Second District, recently reversed a final judgment of foreclosure, instead directing the trial court to enter judgment in favor of the borrower. In so ruling, the Appellate Court rejected and disregarded the current servicer’s evidence that the loan modification documents had not been received, because the borrowers introduced

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FCC Rules TCPA Does Not Apply to Official Calls Made by Feds or Federal Contractors

The Federal Communications Commission (FCC) recently clarified “that the TCPA does not apply to calls made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government’s instructions.” A copy of the FCC’s Declaratory Ruling 16-72 is

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CFPB Issues Supervisory Report Addressing ‘Unfair’ Coding Errors, Other Issues

The federal Consumer Financial Protection Bureau (CFPB) recently issued its “Supervisory Highlights – Issue 12, Summer 2016” report, focusing attention on automobile origination, debt collection, mortgage origination, small dollar lending, fair lending, and remedial actions, reflecting supervisory activity generally completed between January 2016 and April 2016. The CFPB reported deficiencies in Compliance Management Systems and

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Calif. App. Court Holds Alleged Foreclosure by Wrong Beneficiary Enough for Wrongful Foreclosure, No Tender Required

The Court of Appeals of California, Fourth District, recently held that a homeowner who has been foreclosed on by one with no right to do so — by those allegations alone — sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. Citing Glaski v. Bank of America (2013) 218 Cal.App.4th

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Minn. District Court Holds Even Complete Tender Does Not Moot Individual or Putative Class Claims

Interpreting the Supreme Court of the United States’s ruling in Campbell-Ewald Co. v. Gomez, the U.S. District Court for the District of Minnesota recently held that a defendant cannot moot a putative class action against it, even by tendering the full amount claimed to the named plaintiff and before a motion for class certification is filed.

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Calif. Supreme Court Holds Atty Fees to be Included in Determining Constitutional Limits of Punitive Damages Awards

The Supreme Court of California recently held that, in determining whether punitive damages awards are within constitutional limits, attorney’s fees may be included in the calculation of the ratio of punitive to compensatory damages, regardless of whether the fees are awarded by the trier of fact as part of its verdict or are determined by

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