Author Archive for Allan Enriquez

7th Cir. Upholds Dismissal of Unlawful Data Retention Claim Under Spokeo

The U.S. Court of Appeals for the Seventh Circuit recently held that although a consumer’s suit against a cable service provider for failing to destroy his personal information was a substantive violation of the federal Cable Communications Policy Act, it failed to allege a concrete injury sufficient to confer standing. A copy of the opinion

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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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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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2nd Cir. Rules Successful Offer of Judgment Mooted TCPA Putative Class Action

The U.S. Court of Appeals for the Second Circuit recently held in a non-precedential opinion that a consumer, in the circumstances of this case, did not have standing to bring putative class action claims after entry of judgment in his favor on his individual claims pursuant to the defendants’ offer of judgment under Rule 68

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Fla. Fed. Court Holds Servicer Could Not Invoke Jury Waiver in Mortgage

The U.S. District Court for the Middle District of Florida recently held that a mortgage servicer did not have standing to invoke a jury trial waiver in a mortgage when the servicer was not a party to the mortgage. A copy of the opinion in Shallenburg v. PNC Bank, NA is available at:  Link to

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11th Cir. Holds Bank’s Failure to Stop Theft of Deposit Funds Could Constitute ‘Aiding and Abetting’

The U.S. Court of Appeals for the Eleventh Circuit recently held that a noncustomer pleaded sufficient facts to bring state law negligence and fraud causes of action against a bank when a bank customer engaged in the fraud. In so ruling, the Court held that “[b]ecause banks do have a duty to safeguard trust funds

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Illinois App. Court Rejects Foreclosure Borrower’s Challenge to Service by Publication

The Appellate Court of Illinois, First District, recently held that a mortgagee’s affidavits detailing the due and diligent inquiry it undertook to attempt to personally serve a borrower were sufficient to allow service by publication in a mortgage foreclosure action. A copy of the opinion is available at:  Link to Opinion. The mortgagee filed a

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6th Cir. Rejects Debt Collector’s Efforts to Distinguish Campbell-Ewald Following Offer of Judgment Success in Trial Court

Applying Campbell-Ewald, the U.S. Court of Appeals for the Sixth Circuit revived a consumer plaintiff’s ability to proceed with a putative class action, holding that an unaccepted offer of settlement or judgment generally does not moot a case, even if the offer would fully satisfy the plaintiff’s demands for relief. A copy of the opinion

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Fla. App. Court (1st DCA) Dismisses Foreclosure Due to Trial Court’s Lack of Jurisdiction

The District Court of Appeal for the First District, State of Florida recently ordered the dismissal of a foreclosure action because it held that the trial court’s jurisdiction expired prior to the entry of the judgment of foreclosure in the case. The Appellate Court held that the trial court failed to consider whether it had

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9th Cir. Holds Car Dealer Failed to Provide ‘Completed Inspection Report’ as to ‘Certified’ Used Car

The U.S. Court of Appeals for the Ninth Circuit recently held that a car dealership inspection certificate violated California statutory law that required that a vehicle seller provide a “completed inspection report” prior to the sale of any “certified” used car. In so ruling, the Court held that the term “inspection report” was a term

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NY Supreme Court Holds Notice of Default Not Required to Deceased Borrower’s Estate

A New York Supreme Court held that the notice of default requirement in New York Real Property Actions and Proceedings Law (RPAPL) § 1304 applies only to a borrower and not a borrower’s estate. As a result, according to the Court, foreclosing entities do not have to provide a notice of default pursuant to the

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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

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