Archive for August 2016

Fla. App. Court (4th DCA) Holds Victory Must Be Complete to Obtain Attorney’s Fees Under FDUTPA

The District Court of Appeal of Florida, Fourth District, recently held that in order to recover fees for prevailing on a Florida Deceptive and Unfair Trade Practices Act claim, a party must prevail not only on the FDUTPA claim but also on all pleaded legal theories such that it obtains a judgment in its favor

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4th Cir. Holds Time-Barred Proof of Claim Does Not Violate FDCPA

In a split decision, the U.S. Court of Appeals for the Fourth Circuit recently held that “filing a proof of claim in a Chapter 13 bankruptcy based on a debt that is time-barred does not violate the Fair Debt Collection Practices Act when the statute of limitations does not extinguish the debt.” A copy of

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ND Calif. Holds Alleged ‘Invasion of Privacy’ Sufficient for TCPA Standing

The U.S. District Court for the Northern District of California recently held that a mobile phone app designed to send messages to a phone user’s contacts did not violate the federal Telephone Consumer Protection Act because the phone user selected the message recipients and had to take several affirmative steps for the app to send

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6th Cir. Confirms No TILA Right to Cancel for Failure to Disclose Assignment of Loan

The U.S. Court of Appeal for the Sixth Circuit recently confirmed that a mortgagee’s alleged failure to notify borrowers of an assignment of the loan does not give rise to a right to cancel under the federal Truth In Lending Act (TILA). A copy of the opinion in Robertson v. US Bank, NA is available at:

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7th Cir. Rejects FDCPA Claims That Illinois Wage Garnishments Are Actions ‘Against Consumer’

The U.S. Court of Appeals for the Seventh Circuit recently held that a wage garnishment action under Illinois law is not a legal action “against a consumer” under the federal Fair Debt Collection Practices Act (FDCPA). Accordingly, the Court held, an Illinois wage garnishment action need not be pursued only in the judicial district in

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9th Cir. Rejects FDCPA Claim for Failure to Disclose ‘Debt Collector’ Status in Follow Up Communications

The U.S. Court of Appeals for the Ninth Circuit recently held that there is no federal Fair Debt Collection Practices Act (FDCPA) violation if a subsequent communication is sufficient to disclose to the least sophisticated debtor that the communication was from a debt collector, even without expressly stating “this communication is from a debt collector.”

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9th Cir. Holds Nevada HOA Lien Foreclosure Statute Facially Unconstitutional

The U.S. Court of Appeals for the Ninth Circuit recently held that the Nevada homeowners association foreclosure statute facially violated mortgage lenders’ constitutional due process right, and that the Nevada legislature’s enactment of a statute governing foreclosure of liens by HOAs constituted “state action.” A copy of the opinion in Bourne Valley Court Trust v. Wells

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ND Illinois Holds HPA Preempts Breach of Contract, UDAP Claims ‘Relating to’ HPA’s Requirements

The U.S. District Court for the Northern District of Illinois recently held that the federal Homeowners Protection Act, 12 U.S.C. § 4901, et seq., preempts state law UDAP and breach of contract claims, when the state law claims are based on allegations “relating to” the HPA’s requirements. A copy of the opinion in Ciolino v.

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SD Calif. Holds No Standing For TCPA Plaintiff Alleging 290 Nonconsensual Calls

The U.S. District Court for the Southern District of California recently held that a TCPA plaintiff alleging some 290 unwanted autodialed calls to her cell phone did not demonstrate “concrete injury” sufficient to confer Article III standing under Spokeo v. Robins. A copy of the opinion in Romero v. Department Stores National Bank et al is available here:

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6th Cir. BAP Holds In Rem Foreclosure Not Disguised In Personam Collection Effort

The Bankruptcy Appellate Panel of the Sixth Circuit recently held that a condominium unit owners association did not violate a debtor’s Chapter 7 discharge order by scheduling a sheriff’s sale to complete a prepetition foreclosure. Rejecting the bankruptcy court’s conclusion that the in rem foreclosure sale was scheduled to induce payment of discharged pre-petition condominium

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7th Cir. Deepens Split on FDCPA Liability for ‘Time-Barred’ Claims

Filing a proof of claim with a bankruptcy court representing a debt subject to an expired state law limitations period does not violate the federal Fair Debt Collection Practices Act (FDCPA) under an opinion released yesterday from the Seventh Circuit Court of Appeals. Under the ruling, in Owens v. LVNV, the Seventh Circuit joins the

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Court Affirms Dismissal of Crawford Case for FDCPA ‘Time-Barred’ Proof of Claim, Case Was Itself ‘Time-Barred’

On July 10, 2014, the United States Court of Appeals for the Eleventh Circuit issued its opinion in Crawford v. LVNV Funding, LLC. That opinion began by decrying the “deluge” of proofs of claim filed by debt buyers on debts that are unenforceable under state statutes of limitations. It ended by holding that the filing

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