Author Archive for Ernest Wagner

Fla. App. Court (4th DCA) Holds Trial Court Improperly Applied Federal Judicial Estoppel Rule to Undisclosed Assets in Bankruptcy

The District Court of Appeal of the State of Florida, Fourth District, recently reversed a trial court’s order denying two borrowers’ request for attorney’s fees and costs on judicial estoppel grounds. In so ruling, the Fourth DCA held that the trial court improperly relied on a Fifth Circuit case and failed to apply Florida’s judicial

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Fla. App. Court (3rd DCA) Reverses Dismissal of Foreclosure on ‘Prior Servicer’s Records’ Issue

Following rulings from other appellate courts in other appellate districts, Florida’s Third District Court of Appeal recently reversed a trial court’s order involuntarily dismissing a mortgagee’s foreclosure against a borrower holding that the mortgagee’s witness from its current mortgage servicer laid a sufficient foundation at trial to admit business records from a prior mortgage servicer

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Fla. App. Court (5th DCA) Reverses Foreclosure Due to Lack of Evidence of Effect of Merger of Original Plaintiff

The Florida District Court of Appeal, Fifth District recently reversed a final foreclosure judgment in favor of a mortgagee, holding that the mortgagee did not establish that the original foreclosure plaintiff acquired the note by virtue of a merger, and did not establish the relationship between the original foreclosure plaintiff and the originating lender.  Accordingly,

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Missouri Supreme Court Holds Statutory Post-Judgment Interest Allowed for All Non-Tort Actions

The Supreme Court of Missouri recently affirmed, in part, a trial court order dismissing two debtors’ petitions attempting to assert violations of the federal Fair Debt Collection Practices Act and the Missouri Merchandising Practices Act against a hospital for failure to state a claim, holding that judgments in non-tort actions include post-judgment interest as a

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NJ Supreme Court Enforces Modification Settlement Made Through Residential Mortgage Foreclosure Mediation Program

The Supreme Court of New Jersey reversed the decision of the Appellate Court, and held that a settlement that a borrower and a lender reached during mediation pursuant to the Residential Mortgage Foreclosure Mediation Program was enforceable because the borrower fulfilled all contingent terms making the agreement permanent. A copy of the opinion is available

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11th Cir. Holds Servicer Did Not Violate RESPA by Omitting Loan Owner’s Phone Number, Damages Allegations Insufficient

In an unpublished ruling, the U.S. Court of Appeals for the Eleventh Circuit recently held that a mortgage servicer did not violate the federal Real Estate Settlement Procedures Act or its implementing regulation (at 12 C.F.R. § 1024.36(d)(2)(i)(A)) by failing to provide the loan owner’s phone number in response to a borrower’s request for information

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Illinois App. Court (1st Dist) Holds 7-Month Delay in Paying Overdue HOA Assessments May Not Extinguish HOA Lien

The Appellate Court of Illinois, First District, recently reversed a trial court order granting summary judgment in favor of a mortgage servicer and against a condominium association (COA) holding that a material question of fact existed regarding whether the servicer promptly paid assessments that accrued after the foreclosure sale, as required under section 9(g)(3) of

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11th Cir. Confirms Servicer May Designate Address for QWRs

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a summary judgment ruling in favor of a mortgage servicer, holding that the servicer had no duty to respond to a Qualified Written Request (“QWR”) under the federal Real Estate Settlement Procedures Act (RESPA) because the borrower failed to send the QWR to the

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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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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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9th Cir. Holds City of LA’s FHA ‘Discriminatory Lending’ Claims Failed for Lack of ‘Robust’ Causal Link

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court’s summary judgment ruling in favor of a bank and against the City of Los Angeles on the City’s claims that the bank violated section 3605(a) of the federal Fair Housing Act (FHA) through alleged discriminatory lending practices, and that the bank

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Illinois App. Court (3rd Dist) Upholds Dismissal of Qui Tam Action Against MERS

The Appellate Court of Illinois, Third District, recently affirmed a trial court’s dismissal of a qui tam action brought by a private attorney under the Illinois False Claims Act against Mortgage Electronic Registration Systems, Inc. (MERS), holding that the State can file a motion to dismiss at any time during the case even if the

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