The District Court of Appeals of the State of Florida, Fourth District, recently reversed final judgment of foreclosure in favor of a mortgagee for entry of judgment in favor of the mortgagors, where the mortgagee failed to prove that it came into possession of the note containing an undated, blank endorsement before the foreclosure was filed. In so ruling, the Fourth District confirmed that a trial court abuses its discretion in admitting business records if it is not established that the records were made at or near the time of the event. In addition, the Fourth District held that a…
Posts published in “Year: 2015”
The U.S. District Court for the Middle District of Florida recently denied a debt collector’s motion for sanctions based on the plaintiff’s filing of allegedly frivolous consumer protection claims, which the plaintiff consumer voluntarily dismissed with prejudice after demand from the debt collector’s counsel, where the debt collector failed to show the claims met the Eleventh Circuit’s two-prong test for frivolity. A copy of the opinion in Claudet v. First Federal Credit Control, Inc., is available here: Link to Opinion. After the plaintiff consumer underwent a medical procedure with a medical imaging company, she allegedly informed the medical imaging company…
The Appellate Division of the Fifteenth Judicial Circuit of the State of Florida recently reversed dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim alleging a debt collector’s letter falsely represented a bank was the creditor of a loan. In so ruling, the Appellate Division confirmed that even though a foreclosure action is not necessarily debt collection, the enforcement of a promissory note constitutes debt collection activity even if done in conjunction with the enforcement of a security interest, and even the debt collector stated it was seeking solely to foreclose the creditor’s lien on the real estate,…
The U.S. Court of Appeals for the Fifth Circuit recently affirmed summary judgment in favor of a loan owner and its loan servicer because the servicer gave the required 20-day notice of default under the Texas Property Code prior to initiating foreclosure, and the borrower failed to allege violations of the Texas Debt Collection Act (TDCA). A copy of the opinion in Diana Rucker v. Bank of America, N.A., et al is available at: Link to Opinion. The borrower obtained a $175,000 loan in 2005 in order to purchase her home, signing a note and deed of trust. The deed of…
The Court of Appeals of Georgia, Second Division, recently held that a debt collector did not violate the federal Fair Debt Collections Practices Act (FDCPA), holding that even if the alleged misrepresentations in the debt collector’s affidavit were technically false, they were not material and thus failed to state a claim. A copy of the opinion in Summer v. Security Credit Services LLC is available at: Link to Opinion. In August 2006, a national bank issued a credit card to the debtors, who defaulted by failing to pay the account. In April 2011, the issuing bank and a debt buying company…
The Maryland Court of Appeals recently affirmed a trial court’s grant of summary judgment in a putative class action “application fraud” case in favor of a mortgage company, bank, loan officers, realtors and a realty group and against the putative class of borrowers. In so ruling, the Court held: (1) the borrowers’ allegations were time barred; (2) the borrowers were put on inquiry notice and presumed to know the contents of the fraudulent loan applications they signed; (3) the lenders and realtors were not shown to have prevented the borrowers from reading the application documents; (4) the lenders had no…
In an Opinion Letter letter dated Nov. 2, the Massachusetts Division of Banks declared that collection law firms in Massachusetts are required to obtain a debt collector license pursuant to Mass. Gen. Laws Ch. 92, § 24 et. seq. The Opinion Letter was in response to correspondence from a Massachusetts collection law firm inquiring whether the firm, self-described as “overwhelmingly concentrated in the area of consumer debt collection on behalf of its clients,” was required to be licensed. At issue was the applicability of the licensing exclusion for “attorneys-at-law collecting a debt on behalf of a client.” In its Opinion,…
In an action alleging that the defendants violated the federal Fair Debt Collection Practices Act (FDCPA) by sending a form letter attempting to collect on allegedly time-barred debts, the U.S. District Court for the Middle District of Florida recently denied the plaintiff’s motion for class certification. In so ruling, the Court held: The plaintiff failed to demonstrate that the defendants’ records contain sufficient information from which the Court could determine whether each class member’s debt was obtained for “consumer” purposes; and Even if Plaintiff were able to establish on a class-wide basis that the defendants had a routine practice of…
The U.S. Court of Appeals for the Second Circuit recently reversed dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim based on the statute of limitations, holding that an FDCPA violation occurs when a bank freezes a debtor’s bank account, not when a debt collector sends a restraining notice to the bank. In so ruling, the Court distinguished the rulings in Maloy v. Phillips, 64 F. 3d 607 (11th Cir. 1995) and Mattson v. U.S. W. Commc’ns, Inc., 967 F. 2d 259 (8th Cir. 1992), which held that an FDCPA violation occurs when the alleged unlawful debt collection…
On Nov. 20, Pennsylvania Senators Greenleaf, Tartaglione, Rafferty and Pileggi introduced SB 1072, which was referred to the Consumer Protection & Professional Licensure Committee. The legislation, if enacted, would the limit the number of telephone communications that a creditor or debt collector may have with a debtor to three, total. The legislation amends the Pennsylvania Fair Credit Extension Uniformity Act by adding the following as an unfair act or deceptive practice: (b.1) Limitation on telephone contacts with consumers. (1) It shall constitute an unfair or deceptive debt collection act or practice under this act if a debt collector or creditor…
The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim premised solely on the allegation that an affiant who swore to have personal knowledge of the facts did not, in fact, possess personal knowledge when he made the affidavit. In reaching its decision the Court held that even if the affiant lacked “personal knowledge,” the plaintiff had not plausibly alleged that the content of the affidavit contained a false statement “in any meaningful way.” A copy of the opinion in Janson v. Katharyn B. Davis, LLC is available…
The District Court of Appeal of the State of Florida, Fifth District, recently reversed a final judgment of foreclosure in the mortgagee’s favor, holding that based on the default date alleged in the complaint, the default date alleged in a prior foreclosure suit as to the same loan, and the dismissal without prejudice of the prior foreclosure action, the mortgagee’s foreclosure claim was barred by Florida’s five-year statute of limitations. However, in so ruling, the Fifth District also held that the mortgagee was “not precluded from filing a new foreclosure action based on different acts or dates of default not…