Archive for July 2017

Illinois Fed. Court Holds No ‘Bad Faith Denial Of Coverage’ Against Title Insurers in Illinois

The U.S. District Court for the Northern District of Illinois recently held that a title insurer may exclude coverage under the exception for defects “created, suffered, assumed, or agreed to by the insured claimant” without intentional or wrongful conduct by the insured. In so ruling, the Court also held that the Illinois statute for bad

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Fla. App. Court (2nd DCA) Holds Trial Court Erred in Applying Texas Law to Foreclosure Deficiency Claim

The District Court of Appeal of the State of Florida, Second District, recently held that where loan documents provided that Florida law applied to foreclosure claims, the trial court erred in applying Texas law because the deficiency claim in the case was part of the Florida foreclosure process. A copy of the opinion in Bonita

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4th Cir. Holds SCRA Does Not Apply to Mortgage Loan Incurred During Service, Even If Borrower Re-Enlists

The U.S. Court of Appeals for the Fourth Circuit recently held that the federal Servicemembers Civil Relief Act (SCRA) does not apply to a mortgage loan obligation incurred while a borrower is a member of the military, even where he subsequently leaves and then later re-enlists in the military prior to a foreclosure sale. A

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Third Circuit Serves Up Double Fault in FDCPA, TCPA Decision

A recent decision from the Third Circuit Court of Appeals examines both the provision of consent under the federal Telephone Consumer Protection Act (TCPA) and the bona fide error defense for debt collectors under the federal Fair Debt Collection Practices Act (FDCPA). The decision has dire implications for debt collectors, creditors and any commercial enterprise

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Fla. App. Court (4th DCA) Upholds Judgment for Borrower in Foreclosure Where Mortgagee Did Not File Allonge

The District Court of Appeal of the State of Florida, Fourth District, recently affirmed a final judgment in favor of a borrower because the foreclosing mortgagee failed to file the original allonge to the note, holding that as a result the mortgagee lacked standing to foreclose. A copy of the opinion in U.S. Bank National

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Illinois App. Court (1st Dist) Holds Borrower Could Not Challenge Foreclosure Sale Notice as Unlawfully Discriminatory

The Illinois Court of Appeals, First District, recently determined that a borrower in a foreclosure matter did not have standing to challenge whether the mortgagee’s notice of sale was in violation of the Illinois Human Rights Act (IHRA). Following the entry of a judgment of foreclosure, the plaintiff mortgagee published its notice of sale, in

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9th Cir. Holds ‘Free and Clear’ Bankruptcy Sale Was Not Rejection of Unexpired Leases, Did Not Implicate 11 U.S.C. § 365(h)

The U.S. Court of Appeals for the Ninth Circuit recently held that a bankruptcy trustee was authorized to sell real estate free and clear of unexpired leases under 11 U.S.C. § 363(f), and the sale was not a rejection of the unexpired leases and therefore did not implicate 11 U.S.C. § 365(h). In so ruling,

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SD Fla. Holds Website That ‘Operates as Gateway to Physical Locations’ Is Subject to ADA

The U.S. District Court for the Southern District of Florida recently held, after a non-jury trial, that a regional supermarket chain violated the federal Americans with Disabilities Act (ADA) because its website was inaccessible to the visually impaired. A copy of the Verdict and Order in Gil v. Winn-Dixie Stores, Inc. is available at:  Link to

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NJ Fed. Court Dismisses Technical FACTA Violation Putative Class Action Citing Spokeo

The U.S. District Court for the District of New Jersey recently concluded that a putative class representative did not have standing under Spokeo to sue for a technical violation of the federal Fair and Accurate Credit Transactions Act (FACTA). The Court identified the issue as whether the consumer alleges a sufficiently “concrete” harm to confer

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5th Cir. Holds Debt Collector’s Obligation to Report Debt as Disputed Not Limited By § 1692g

The U.S. Court of Appeals for the Fifth Circuit recently affirmed summary judgment under the Fair Debt Collection Practices Act (FDCPA) in favor of the debtor and against a debt collector, where the debt collector failed to mark the debtor’s account as disputed when it credit reported the account. The debt collector admitted that it

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11th Cir. Holds Bankruptcy Chapter 13 to 7 Conversions May Be Dismissed for ‘Abuse’ Under 11 U.S.C. § 707(b)

The U.S. Court of Appeals for the Eleventh Circuit recently held that section 707(b) of the Bankruptcy Code, which allows a bankruptcy court to dismiss a chapter 7 petition if it finds that relief would be an “abuse” as defined in that section, applies to a petition initially filed under chapter 13 and converted to

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Fla. App. Court (5th DCA) Holds Default Date Outside SOL in Complaint Avoided by Evidence That Defaults Continued

The District Court of Appeal of Florida, Fifth District, recently held that a foreclosure complaint was not time-barred despite the initial default occurring outside Florida’s five-year statute of limitations, because the mortgagee both alleged and proved that the borrowers defaulted on every payment due from the date of the initial default. In so ruling, the

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