Archive for June 2017

MD Fla. Dismisses Borrower’s RESPA Servicing Claims for Lack of Actual Damages, Cites Spokeo

The U.S. District Court for the Middle District of Florida recently granted a mortgage servicer’s motion to dismiss a borrower’s claim that the servicer violated the federal Real Estate Settlement Procedures Act (RESPA) by allegedly failing to respond in a timely or adequate manner to a written Request for Information (“RFI”). In so ruling, the

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Maryland App. Court Holds Foreclosures Require Collection Agency Licensure, Including as to Trusts

The Court of Special Appeals of Maryland, the intermediate appellate court in that state, recently held that a party who authorizes a foreclosure trustee to initiate a foreclosure action on a deed of trust must be licensed as a collection agency in the state before filing the foreclosure lawsuit, and that this licensing requirement applies

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2nd Cir. Holds Consumer Cannot Unilaterally Revoke TCPA Consent Provided in Binding Contract

The U.S. Court of Appeals for the Second Circuit recently concluded that a consumer’s consent to receive manual or automated telephone calls is irrevocable under the Telephone Consumer Protection Act (TCPA) when the consent was included in a binding contract. The Second Circuit described the issue as one not previously addressed by the Federal Communications

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8th Cir. Rules on Bankruptcy Trustee’s Ability to Recover Overdraft Covering Deposits

In a bankruptcy preferential transfer dispute, the U.S. Court of Appeals for the Eighth Circuit recently held that the bankruptcy trustee could recover true overdraft covering deposits, while deposits covering intra-day overdrafts were not recoverable. A copy of the opinion in Joseph Sarachek v. Luana Savings Bank is available at:  Link to Opinion. A company filed for

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SD Fla. Bankruptcy Court Refuses to Approve Bankruptcy Plan That Relied on Medical Marijuana Lease Proceeds

The U.S. Bankruptcy Court for the Southern District of Florida recently held that a bankruptcy debtor’s Chapter 11 proceeding should not be dismissed as filed in bad faith to delay or avoid foreclosure, but could not confirm the debtor’s proposed plan to lease its commercial property asset to a business that generates income from medical

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7th Cir. Rejects Narrow Reading of TCPA Consent

The U.S. Court of Appeals for the Seventh Circuit recently concluded that a consumer’s consent to receive promotional information from a retailer is sufficient consent under the federal Telephone Consumer Protection Act (TCPA) to receive other mass marketing texts. The primary issue the Seventh Circuit addressed was the scope of the consent the consumer provided

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Illinois App. Court Holds Reverse Mortgage Borrower Had Mortgageable Interest Following Intestate Death of His Spouse

The Appellate Court of Illinois, First District, recently ruled that the mortgagee of a reverse mortgage loan held an interest in the secured property to the extent that the borrower inherited an interest in the property following the non-borrower’s spouse’s intestate death. Accordingly, the Court reversed the trial court’s dismissal of the reverse mortgagee’s foreclosure

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SCOTUS Holds Class Plaintiffs Cannot Voluntarily Dismiss Claims to Appeal Denial of Class Cert

The Supreme Court of the United States recently held that class action plaintiffs cannot stipulate to a voluntary dismissal with prejudice, then appeal the trial court’s prior interlocutory order striking their class allegations because a voluntary dismissal does not qualify as a “final decision” under 28 U.S.C. §1291 and improperly circumvents Federal Rule of Civil

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6th Cir. Holds Michigan Assignment of Rents Removes Rental Income from Bankruptcy Estate

The U.S. Court of Appeals for the Sixth Circuit recently concluded that Michigan’s assignment of rents statute sufficiently deprived the assignor of the ownership of the rents such that the rents could not be included in the assignor’s bankruptcy estate. The primary issue before the Court was whether Michigan’s assignment of rents statute allowed the

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2nd Cir. Upholds Dismissal of Supposed ‘LIBOR Fraud’ Claims

The U.S. Court of Appeals for the Second Circuit recently affirmed the dismissal of LIBOR-manipulation fraud claims brought by a group of hotel-related entities and their investor against a bank and two of its subsidiaries. In so ruling, the Second Circuit held that: (a) the borrower and related entities lacked standing to sue because they

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8th Cir. Holds Borrower’s Affidavit Alone Is Insufficient to Rebut TILA’s Presumption of Delivery

The U.S. Court of Appeals for the Eighth Circuit recently held that two borrowers’ conclusory affidavits by themselves were insufficient to rebut the presumption of delivery under the federal Truth in Lending Act, 15 U.S.C. § 1635(c), where the borrowers acknowledged in writing at the closing that they received the disclosures required under TILA. A

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U.S. Supreme Court Offers Some Clarity in Assessing Debt Purchaser FDCPA Liability

With its unanimous ruling yesterday that a debt buyer is not a “debt collector” under at least one reading of the federal Fair Debt Collection Practices Act, the U.S. Supreme Court offered some clarity to the financial services industry seeking to assess debt purchaser FDCPA liability. It did, however, refuse to address an alternative interpretation that

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