A Massachusetts Superior Court recently held that reaching a debtor’s voicemail, but choosing to not leave a message, is a “communication” under the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 704(1)(f). A copy of the opinion in Watkins v. Glenn Associates, Inc. is available at: Link to Opinion. The plaintiff sued for injunctive relief and to recover damages from a creditor for alleged violations of the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 704 et seq., which states that it is an “unfair and deceptive act or practice for a creditor to…[i]nitiat[e] a communication with any debtor…
Posts published in September 2016
The Appellate Court of Illinois, Third District, recently held that a mortgagee could foreclose on a husband and wife’s property held as tenants by the entirety despite that only the husband signed the note. In reaching its decision, the Court relied on the fact that the wife signed the mortgage with her husband, and was aware of the existence and the substance of the note. A copy of the opinion in OneWest Bank FSB v. Cielak is available at: Link to Opinion. The borrowers, husband and wife, purchased a home in Illinois. The borrowers acquired the real estate as tenants by…
The U.S. Court of Appeals for the Third Circuit recently held that the Bankruptcy Code does not preempt state law claims brought by non-debtors for damages related to the filing of an involuntary bankruptcy proceeding. A copy of the opinion in Rosenberg v. DVI Receivables XVII, LLC is available at: Link to Opinion. The creditors in this action initiated state court litigation against limited partnerships controlled by the debtor, alleging money owed under various leases. During the state court proceedings, the creditors filed an involuntary bankruptcy proceeding against the debtor and the debtor’s affiliated medical imaging companies, none of which were defendants in the…
The U.S. Court of Appeals for the Eighth Circuit recently held that plaintiff’s class counsel is allowed to submit proposals to the court regarding the method for calculation of reasonable attorney’s fees, but the court has the discretion to accept or reject such proposals and is not required to accept the plaintiff’s proposed method. In so ruling, the Court also held that the Class Action Fairness Act’s “coupon settlement” provisions at 28 U.S.C. § 1712 permit a district court to use a combination of percentage-of-coupons-used and lodestar methods to calculate reasonable attorney’s fees, but CAFA does not require that any portion…
The U.S. Court of Appeals for the Fifth Circuit recently held that HUD reverse mortgage regulations and guidelines do not give the borrower a private cause of action unless the regulations are expressly incorporated into the loan agreement. A copy of the opinion in Johnson v. World Alliance Financial Corp. et al is available at: Link to Opinion. A male borrower entered into a Home Equity Conversion Mortgage (HECM) with the defendant, lender. The loan was secured by the male borrower’s home, which already had two liens on it. One of the liens was held by the male borrower’s ex-wife. Later, the…
The District Court of Appeal of Florida, Fourth District, recently held that real property liens arising after a final judgment of foreclosure are not discharged by Florida’s lis pendens statute. A copy of the opinion in Ober v. Town of Lauderdale-by-the-Sea is available at: Link to Opinion. A mortgagee recorded a lis pendens on real property as part of a foreclosure proceeding against a homeowner. Subsequently, the mortgagee obtained a final judgment of foreclosure. However, the foreclosure sale was not conducted for some four years following entry of the judgment of foreclosure. After the foreclosure, and before the foreclosure sale occurred, the…