Archive for December 2016

7th Cir. Holds Judgment Against Bankruptcy Debtor’s Husband Did Not Violate Co-Debtor Stay

The U.S. Court of Appeals for the Seventh Circuit recently held that a bank’s lawsuit against the husband of a debtor who had filed for bankruptcy did not violate the co-debtor stay because the husband’s credit card debts were not a consumer debt for which the debtor was personally liable. A copy of the opinion

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Illinois Supreme Court Holds Mortgagee Trespass Not ‘Extreme and Outrageous’ as Matter of Law

The Supreme Court of the State of Illinois recently affirmed the dismissal of a borrower’s claims for intentional and negligent infliction of emotional distress against her mortgagee, property inspection and preservation company and its local subcontractors, who entered the home after the borrower’s default to secure the property. In so ruling, the Court held that:

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1st Cir. Rejects Bankruptcy Trustee’s Effort to Avoid Mortgage Due to Allegedly Defective Acknowledgment

The U.S. Court of Appeals for the First Circuit recently rejected a bankruptcy trustee’s effort to avoid a mortgage on the basis that the acknowledgment signed by the borrowers’ attorney-in-fact was defective under Massachusetts law, holding that the acknowledgment was not materially defective because as a matter of agency law the attorney-in-fact’s signature was the

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MD Pa. Holds Initiation of a Call is Enough for TCPA Liability

The United States District Court for the Middle District of Pennsylvania recently determined that the sole issue for trial was whether the consumer should be awarded treble damages in his complaint alleging a violation of the Telephone Consumer Protection Act because “a plaintiff need not answer or hear a call to prove prohibited conduct under

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NJ Fed. Court Holds 18 Calls Over Two Weeks – Mostly Unanswered – Did Not Violate FDCPA

The U.S. District Court for the District of New Jersey recently ruled that 18 telephone calls to a consumer over a two-week period – of which 17 were unanswered, and the last where the consumer hung up – did not violate the federal Fair Debt Collection Practices Act (FDCPA). In so ruling, the Court also

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Fla. App. Court (5th DCA) Holds Noncompliance with FHA Requirement Need Not Be Pleaded as Affirmative Defense in Foreclosure

The District Court of Appeal of Florida, Fifth District, recently ruled that a specific denial that a mortgagee complied with HUD’s pre-foreclosure regulations that were incorporated into the mortgage was a denial of a condition precedent to foreclosure that shifted the burden to the mortgagee to prove compliance. A copy of the opinion is available

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Fla. App. Court (2nd DCA) Rejects Argument Mortgagee Thwarted Right of Redemption by Not Providing Estoppel Letter

The District Court of Appeal of Florida, Second District, recently rejected a borrower’s objection to a foreclosure sale under the theory the mortgagee failed to provide him with an “estoppel letter,” which would have allowed him to exercise his right of redemption. A copy of the opinion is available at:  Link to Opinion. A foreclosure

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Fla. App. Court (3rd DCA) Affirms Award of Atty’s Fees in Favor of Borrowers, Despite No Request for Fees in Answer

The Third District Court of Appeal of the State of Florida recently affirmed a final judgment awarding attorney’s fees to the borrowers in a mortgage foreclosure action, even though the borrowers failed to raise any request for attorney’s fees in their answer and affirmative defenses to the foreclosure complaint. In so ruling, the Court held

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7th Cir. Rejects Defrauded Bank’s Effort to Recover Counterfeit Check Proceeds from Payee’s Bank, Payee, Federal Reserve

The U.S. Court of Appeals for the Seventh Circuit recently held that a bank that honored a counterfeit check was not entitled to reimbursement from the party who deposited the check, nor from the depositing party’s bank or the Federal Reserve. A copy of the opinion is available at:  Link to Opinion. In 2013, an

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Jury Finds Mortgage Lender, CEO Liable for Almost $93 Million in FHA Fraud Case in Texas

A federal jury in the U.S. District Court for the Southern District of Texas found a mortgage lender and its president and CEO liable for almost $93 million in connection with alleged violations of the False Claims Act (FCA) and the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), before application of the

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11th Cir. Holds CAFA Jurisdiction Remains Even When Class Claims Are Dismissed Before Certification

The U.S. Court of Appeals for the Eleventh Circuit recently held that federal courts that have original subject matter jurisdiction over state law claims under the federal Class Action Fairness Act retain that jurisdiction even when the class claims are dismissed before the class is certified. A copy of the opinion is available at:  Link

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