Author Archive for Coleman Braun – Page 2

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

Read more →

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

Read more →

7th Cir. Holds Junior Mortgagee is Necessary or Required Party to Illinois Foreclosure

The U.S. Court of Appeal for the Seventh Circuit recently held that a junior mortgagee is a necessary or “required party” to an Illinois foreclosure action, because the trial court could not “accord complete relief” under Fed. R. Civ. P. 19(a) to the plaintiff mortgagee without the junior mortgagee, as the junior mortgagee would still

Read more →

Illinois App. Court (2nd Dist) Holds Successive Actions on Same Guaranty Not Barred by Res Judicata

The Appellate Court of Illinois, Second District, recently rejected the arguments of two loan guarantors that a bank’s current claims against them were barred by res judicata because the current claims arose out of the same guaranty that the bank used to sue them in a prior action. In so ruling, the Court held that

Read more →

Illinois App. Court Rules Deficiency Judgment Not To Be Reduced by Profit on Later Private Sale of Collateral

The Appellate Court of Illinois, Second District, recently held that when a mortgagee obtains a deficiency judgment in a foreclosure action, purchases the property at a judicial sale, and then resells it to a third party for an amount that exceeds the price paid at the judicial sale, the debtor is not entitled to a

Read more →

Illinois App. Court (2nd Dist) Holds Defect in Summons Voids Foreclosure

The Appellate Court of Illinois, Second District, recently held that a foreclosure judgment was void, where the foreclosing first mortgagee did not properly name a second mortgagee in its summons. A copy of the opinion in U.S. Bank National Association v. Johnston is available at:  Link to Opinion. In 1997, the defendant borrowers executed a mortgage

Read more →

7th Cir. Holds Appealability of Foreclosure Judgments to be Governed by Federal Law

The U.S. Court of Appeals for the Seventh Circuit recently held that as a matter of federal procedural law, a judgment of foreclosure is not a final and appealable judgment, even if state foreclosure law might provide otherwise. Here, the Court held that a Wisconsin judgment of foreclosure was not final and appealable when obtained

Read more →

Minn. District Court Holds Even Complete Tender Does Not Moot Individual or Putative Class Claims

Interpreting the Supreme Court of the United States’s ruling in Campbell-Ewald Co. v. Gomez, the U.S. District Court for the District of Minnesota recently held that a defendant cannot moot a putative class action against it, even by tendering the full amount claimed to the named plaintiff and before a motion for class certification is filed.

Read more →

8th Cir. Holds Cybertheft Covered by Financial Institution Bond Applying ‘Concurrent Causation’ Doctrine

The U.S. Court of Appeals for the Eighth Circuit recently held that a bank was entitled to recover its cybertheft losses under its financial institution bond, despite its employee’s violation of the bank’s internal policies and procedures, and despite the bank’s failure to update its antivirus software, holding that Minnesota’s “concurrent causation” doctrine applies to

Read more →

7th Cir. Holds No FDCPA Violation for Filing Suit Without Intent to Proceed to Trial

The U.S. Court of Appeals for the Seventh Circuit recently held that the federal Fair Debt Collection Practices Act (FDCPA) does not prohibit debt collectors from filing a collection lawsuit without intending to proceed to trial to obtain a judgment. A copy of the opinion in St. John v. Cach, LLC is available at:  Link to

Read more →

8th Cir. Rejects Borrowers’ Challenges to Notice of Intent to Accelerate and to Assignment of Mortgage

The U.S. Court of Appeals for the Eighth Circuit recently held that two borrowers did not have standing to challenge an allegedly invalid mortgage assignment between creditors, because the borrowers could not show harm fairly traceable to the allegedly invalid assignment. Additionally, the Court held that the borrowers failed to state a plausible claim for

Read more →

Illinois App. Court Holds Pleading Plaintiff is ‘Mortgagee’ Sufficient Under Illinois Mortgage Foreclosure Law

The Appellate Court of Illinois, First District, recently held that an allegation that the plaintiff is a “mortgagee” under the Illinois Mortgage Foreclosure Law (IMFL) is sufficient to plead its capacity to sue. A copy of the opinion in Wells Fargo Bank, N.A. v. Mundie is available at:  Link to Opinion. The plaintiff mortgagee filed a

Read more →