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Posts published in May 2017

9th Cir. Amends, Reinforces Its Ruling that Foreclosure Trustees Are Not FDCPA ‘Debt Collectors’

The U.S. Court of Appeals for the Ninth Circuit recently amended its opinion in Ho v. ReconTrust Co., maintaining and affirming its prior ruling that the trustee in a California non-judicial foreclosure did not qualify as a debt collector under the federal Fair Debt Collection…

Fla. Court (19th Jud Cir) Holds Periodic Statements Sent to Borrower Following Dismissal of Foreclosure Not Actionable Under FCCPA

The County Court of the Nineteenth Judicial Circuit in and for St. Lucie County, Florida recently dismissed a borrower’s amended complaint against a mortgage servicer alleging violations of the Florida Consumer Collection Practices Act (FCCPA) for sending mortgage statements to the borrower following involuntary dismissal,…

2nd Cir. Upholds Dismissal of Data Breach Action for Lack of Standing, Distinguishes 7th Cir. Rulings

The U.S. Court of Appeals for the Second Circuit recently affirmed the dismissal of a “data breach” lawsuit against a retailer, holding that the plaintiff lacked standing for failure to allege a cognizable injury. A copy of the opinion in Whalen v. Michaels Stores, Inc.…

8th Cir. Holds Removal Proper Where Absence of CAFA Jurisdiction Not ‘Established to a Legal Certainty’

The U.S. Court of Appeals for the Eighth Circuit recently held that the requirements for the federal Class Action Fairness Act (CAFA) were met and the matter was properly removed to federal court, where the plaintiffs could not “establish to a legal certainty” that their…

MD Ala. Holds Servicer Did Not Violate Discharge By Sending Periodic Statements, NOI, Delinquency Notices, Hazard Insurance Notices

The U.S. Bankruptcy Court for the Middle District of Alabama recently held that a mortgage servicer did not violate the discharge injunction in 11 U.S.C. § 524 by sending the discharged borrowers monthly mortgage statements, delinquency notices, notices concerning hazard insurance, and a notice of…

Calif. App. Court (3rd Dist) Holds Loan Mod Denial Letter Allowing Only 15 Days to Appeal Was ‘Material Violation’ of HBOR

The Court of Appeal of the State of California, Third Appellate District, recently held that a mortgage servicer violated California’s Homeowner Bill of Rights (HBOR), Civ. Code § 2923.6(d), when it sent a borrower a loan modification denial letter stating that the homeowner had only…

4th Cir. Holds Entire Arbitration Agreement Unenforceable Due to Faulty Choice of Law Provisions

The U.S. Court of Appeals for the Fourth Circuit held that a creditor’s arbitration agreement contained unenforceable choice of law provisions rendering the entire agreement unenforceable. Accordingly, the Fourth Circuit affirmed the trial court’s order denying the creditor’s motion to compel arbitration. A copy of…

9th Cir. Applies Anti-Deficiency Protections to Debtors’ Bankruptcy Estate Where Property of Estate is Sold in Non-Judicial Foreclosure

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the Bankruptcy Appellate Panel’s determination that a creditor’s pre-bankruptcy, non-recourse lien on two debtors’ real property is extinguished following a non-judicial foreclosure sale. A copy of the opinion in In re: Salamon is available…