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Posts published in October 2016

8th Cir. Holds Foreclosure Did Not Discharge Security Interest in Proceeds of Collateral

The U.S. Court of Appeals for the Eighth Circuit recently held that a secured party’s foreclosure did not discharge an otherwise valid security interest in the proceeds of the collateral, nor did it preclude the creditor from pursuing its rights to such proceeds. A copy of the opinion in Bayer CropScience, LLC v. Stearns Bank National Association is available at:  Link to Opinion. The borrower settled a lawsuit.  Two of the borrower’s creditors claimed priority over the settlement funds. One creditor (“Initial Creditor”) made a $2.62 million loan to the borrower on Sept. 13, 2002, which was secured by all fixtures,…

11th Cir. Holds Re-Scheduled Foreclosure Sale Does Not Extend RESPA Deadline for Submitting Loss Mit Application

The U.S. Court of Appeals for the Eleventh Circuit recently held that, under the federal Real Estate Settlement Procedures Act, a mortgage loan servicer had no duty to evaluate a borrowers’ loss mitigation application submitted two days before the foreclosure sale, even though the sale was continued, affirming the district court’s grant of summary judgment in the servicer’s favor. The Court also held that the borrowers had to present evidence that they suffered actual damages or were entitled to statutory damages in support of their claim based on the servicer’s supposedly inadequate response to their “notice of error” under RESPA…

CD Calif. Holds Non-Bank Not ‘True Lender’ on Allegedly Usurious Loans Extended in Name of Bank

The U.S. District Court of the Central District of California recently dismissed a borrower's putative class action complaint against a non-bank that supposedly was the "true lender" for allegedly usurious student loans that were extended in the name of a bank.

Supreme Court Takes On Chapter 13 Bankruptcy Mess Created by FDCPA Ruling

The Supreme Court of the United States has decided it will review the decision of the U.S. Court of Appeals for the Eleventh Circuit in Johnson v. Midland Funding LLC. A link to the docket is available here: Link to Docket.  As you will recall from my previous article, Johnson was the second case decided by the Eleventh Circuit addressing time-barred proofs of claim in Chapter 13 bankruptcy. In the first case, Crawford v. LVNV Funding, LLC, the Eleventh Circuit held that a debt collector violates the FDCPA when it files a proof of claim in a bankruptcy case on a…

CFPB Narrowly Escapes Shutdown in D.C. Circuit Court Ruling

The Consumer Financial Protection Bureau narrowly escaped a constitutional challenge today in a ruling handed down from the United States Court of Appeals for the District of Columbia Circuit. Although the court found the CFPB's structure is unconstitutional, the defect, according to the court’s opinion, did not warrant its dissolution.

Illinois App. Court (2nd Dist) Holds Erroneous Advertisement Not UDAP Violation

The Appellate Court of Illinois, Second District, recently held that an erroneous advertisement that misstated the price of a vehicle did not constitute an offer that could be accepted to form a contract, and did not constitute a UDAP violation. A copy of the opinion in Burkhart v. Wolf Motors of Naperville, Inc. is available at:  Link to Opinion. The plaintiff car buyer saw an advertisement online for a vehicle and contacted the defendant car dealership to purchase the vehicle at the advertised price.  The car dealer explained to her that the price of the vehicle was $36,991 and the price…

5th Cir. Confirms Lack of Receipt of Foreclosure Notice Not Fatal, Upholds FDCPA Attorney’s Fees Against Borrowers

The U.S. Court of Appeals for the Fifth Circuit recently confirmed that a claim of lack of receipt of a notice of default and intent to foreclose does not establish any defect in foreclosure proceedings, and that borrowers can be liable for attorney’s fees for bringing an action against a mortgage servicer under the Fair Debt Collection Practices Act. A copy of the opinion in LSR Consulting, LLC v. Wells Fargo Bank, N.A. is available at: Link to Opinion. The borrowers defaulted on loans on two properties.  The mortgagee foreclosed on both, following which the borrowers assigned any alleged claims they had against…

Fla. App. Court Holds Safe Harbor for Unpaid HOA/COA Assessments Doesn’t Require Mortgagee to Own Note, Mortgage

The District Court of Appeal of Florida, Second District, recently held that a mortgagee is entitled to the safe harbor limiting liability for unpaid condominium assessments under section 718.116 of the Florida Condominium Act, even though the mortgagee holds, but does not own, the note and mortgage. A copy of the opinion in Brittany’s Place Condominium Association, Inc. v. U.S. Bank, N.A. is available at:  Link to Opinion. A mortgagee filed a foreclosure action, naming the condominium association (COA) as a party defendant. The mortgagee alleged in the complaint that it was “the holder of the note and mortgage and the servicer…

11th Cir. Holds Bankruptcy ‘Surrender’ Requires Debtor to Give Up All Rights in Collateral

The U.S. Court of Appeals for the Eleventh Circuit recently held that the word “surrender” in the Bankruptcy Code, 11 U.S.C. § 521(a)(2), requires that debtors relinquish all of their rights to the collateral. In so ruling, the Court ordered the borrowers to “surrender” their house to the mortgagee in a foreclosure action, and held that the bankruptcy court had the authority to compel the borrowers to fulfill their mandatory duty under 11 U.S.C. § 521(a)(2) not to oppose a foreclosure action in state court. A copy of the opinion in David Failla, et al v. Citibank, N.A. is available at: …

11th Cir. Confirms Third-Party Garnishments Not Subject to FDCPA Venue Provision

The U.S. Court of Appeals for the Eleventh Circuit recently held that the federal Fair Debt Collection Practices Act’s venue provision did not apply to post-judgment action garnishment proceedings. A copy of the opinion in Ray v. McCullough Payne & Haan, LLC is available at: Link to Opinion. A debt collector filed a collection action.  In compliance with the FDCPA’s venue provision, the debt collector brought that action in Fulton County, Georgia, where the debtor resided. After obtaining a judgment against the debtor in that action, the debt collector initiated a garnishment proceeding against the debtor’s bank to collect on the…

8th Cir. Rejects FDCPA Claims Regarding Follow Up Calls for Location Information, Alleged Harassment

The U.S. Court of Appeals for the Eighth Circuit recently held that a debt collector did not violate the federal Fair Debt Collection Practices Act for making subsequent telephone calls to a person other than the consumer regarding the location of the debtor, because the debt collector reasonably believed that the person’s initial response was incomplete. In so ruling, the Eighth Circuit held as a matter of law that 14 calls over a period of approximately two months did not rise to the level of harassment prohibited under the FDCPA, at 15 U.S.C. § 1692d(5). A copy of the opinion in Kuntz…

7th Cir. Holds Inclusion of 1692g ‘Debt Validation’ Notice in Complaint Violated FDCPA

The U.S. Court of Appeals for the Seventh Circuit recently reversed the dismissal of a putative class action alleging that the debt collector defendants used misleading language in their state court collection complaints in violation of the federal Fair Debt Collection Practices Act. In so ruling, the Court held that the debt collector’s use of language similar to a notice under 15 U.S.C. § 1692g in its collection complaint was deceptive as a matter of law because it could lead an unsophisticated consumer to believe that the debt would be assumed to be valid by the court if not disputed…