The U.S. Court of Appeals for the Second Circuit recently held in a non-precedential opinion that a consumer, in the circumstances of this case, did not have standing to bring putative class action claims after entry of judgment in his favor on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 of the Federal Rules of Civil Procedure.
Posts published in November 2016
The District Court of Appeal of the State of Florida, Fourth District, recently reversed a trial court’s ruling in favor of mortgage loan borrowers based on the mortgagee’s failure to satisfy a condition precedent in paragraph 22 of the mortgage in accepting partial payments after default, holding that the mortgagee substantially complied with the requirements of the mortgage. In so ruling, the Court held that the mortgagee was not obligated to send new acceleration notices after each partial payment was received, as the borrowers never cured the default by paying the total amount needed to cure the default and reinstate…
The Federal Communications Commission recently denied the national Mortgage Bankers Association’s petition for exemption from the “prior express consent” requirement of the Telephone Consumer Protection Act for certain mortgage servicing calls and texts. A copy of the FCC’s Order denying the petition is available at: Link to FCC Order. As you may recall, the TCPA and the FCC’s implementing rules prohibit autodialed calls and texts “to wireless telephone numbers and other specified recipients except when made: (1) for an emergency purpose; (2) solely to collect a ‘debt owed to or guaranteed by the United States’; (3) with the prior express…
The District Court of Appeal of Florida, Second District, recently reversed an order denying a claim for a post-foreclosure sale deficiency judgment, holding that the trial court abused its discretion by excluding from evidence an expert’s testimony and report as to fair market value because the report was dated six days after the foreclosure sale. A copy of the opinion is available at: Link to Opinion. A final judgment of foreclosure in the amount of $2.4 million was entered against the borrower company and its principal. A third party purchased the property at a foreclosure sale for $100. The third…
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.
The California Court of Appeal, Fourth Appellate District, recently held that a successful consumer plaintiff was entitled to $185,000 in attorney’s fees and costs, even though she rejected a settlement offer containing an appropriate remedy before she filed suit. In so ruling, the Court held that rejecting the pre-litigation settlement offer was not unreasonable, as the offer required the consumer to agree to a broad release of claims and a confidentiality clause, and especially as the confidentiality provision in particular was unlawful as to the consumer’s Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq. (“Song-Beverly Act”) claims.…
11th Cir. Holds Bank’s Failure to Stop Theft of Deposit Funds Could Constitute ‘Aiding and Abetting’
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.
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.
The U.S. Court of Appeals for the Ninth Circuit recently held that if a creditor wishes to participate in the distribution of a debtor’s assets under Chapter 13, it must timely file a proof of claim, and the debtor’s acknowledgment of the debt owed to the creditor does not relieve the creditor of this affirmative duty. A copy of the opinion is available at: Link to Opinion. The debtor filed a Chapter 13 bankruptcy petition. The bankruptcy court issued a notice with a deadline for creditors to file a proof of claim. The creditor was sent a copy of the…
The District Court of Appeal of Florida, Second District, recently confirmed that a substituted plaintiff would have to demonstrate its standing to enforce a note and mortgage at the time of trial, and the original plaintiff’s standing at the time the foreclosure complaint was filed. In so ruling, the Court rejected the argument a substituted mortgagee must also prove its standing at the time of a court-ordered substitution. A copy of the opinion is available at: Link to Opinion. A mortgagee filed a foreclosure action asserting two counts: an action to reestablish the note which was allegedly lost or destroyed,…
The U.S. Court of Appeals for the Fifth Circuit recently held that claims of an opt-out class in a previously-settled California state class action that released any existing federal Fair Labor Standards Act claims by mortgage loan officers against lenders that failed to pay them overtime were precluded by res judicata because the previous opt-out state court settlement met due process requirements, and the FLSA did not expressly or impliedly create an exception to the Full Faith and Credit Act, 28 U.S.C. § 1738. A copy of the opinion in Raymond Richardson, et al v. Wells Fargo Bank, N.A., et…
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.