In a case of first impression, the Illinois Appellate Court for the First District recently held that the Illinois Unsafe Buildings Act does not authorize a municipality to seek a money judgment for demolition expenses against the owner of a property by simply filing a motion in the same demolition action. In so ruling, the Court found that the plain language of the Act only authorizes a municipality to affirmatively recover the amount of its lien for demolition expenses by either: (1) foreclosing on the lien and obtaining satisfaction through a judicial sale of the property; or (2) filing a…
Posts published in September 2017
The U.S. Court of Appeals for the Eleventh Circuit recently held that a voicemail from a debt collector that merely asks for the debtor to call back constitutes an initial communication under the federal Fair Debt Collection Practices Act (FDCPA) requiring the so-called “mini-Miranda” warning. In so ruling, the Court also held that a debt collector employee does not need to reveal his or her name to provide “meaningful disclosure” of the caller’s identity. A copy of the opinion in Hart v. Credit Control, LLC is available at: Link to the Opinion. The defendant debt collector left a voicemail for the…
The Illinois Appellate Court for the First District recently held that the trial court correctly affirmed a judicial sale and denied a motion to reconsider where an intervenor and alleged owner of the property claimed the mortgage was wiped out by the death of the sole mortgagor, who was only a joint tenant in the property at the time the mortgage was executed. In so ruling, the Court noted that the mortgagee provided proper notice and otherwise complied with all procedural rules for foreclosures in Illinois, whereas the intervenor never recorded the deed to himself and did nothing to stop…
The U.S. Court of Appeals for the Ninth Circuit recently affirmed final judgments against corporate borrowers and guarantors in three separate cases, holding that: (a) the Nevada statute limiting the amount of the deficiency recoverable in a foreclosure action was preempted by federal law as applied to transferees of the Federal Deposit Insurance Corporation (FDIC); (b) the plaintiff bank had standing to enforce the loans it acquired from the FDIC; (c) the bank was not issue-precluded from showing that the subject loans had been transferred to it; (d) the bank did not breach the implied covenant of good faith and…
The U.S. Court of Appeals for the Second Circuit recently remanded a federal False Claims Act lawsuit based upon alleged misrepresentations made by a bank when it applied to borrow funds from the Federal Reserve System’s discount window. The Second Circuit remanded the case to the trial court to determine whether the relators adequately alleged the materiality of the bank’s alleged misrepresentations. In so doing, the Second Circuit held that the Supreme Court of the United States had abrogated both the express designation requirement for implied false certification claims, and the particularity requirement for express false certification claims, in its…
The U.S. Court of Appeals for the Ninth Circuit recently held that, where husband and wife debtors fraudulently transferred assets, the creditor was entitled to the full sum the creditor would have recovered and was not limited to the amount of the collateralized debt. In so ruling, the Ninth Circuit reversed a bankruptcy court and trial court judgment in the creditor’s favor that the debt was non-dischargeable due to the debtor’s fraud, but improperly limiting the non-dischargeable debt to only the collateralized amount. A copy of the opinion in DZ Bank AG Deutsche Zentral-Genossenschaft Bank v. Meyer is available at: Link to Opinion.…
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court’s award of $2,500 in statutory damages to a plaintiff whose private information was improperly viewed by a sheriff’s deputy who had a romantic relationship with the plaintiff’s ex-husband in violation of the federal Driver’s Privacy Protection Act (DPPA), holding that the statute did not provide for cumulative damages of $2,500 per violation. In so ruling, the Court reversed the trial court’s award of only 10 percent of the amount of attorney’s fees requested by the plaintiff’s counsel. The trial court limited the attorney fee award because…
In a split decision, the U.S. Court of Appeals for the Fifth Circuit recently decided that attorneys representing a condominium association did not violate the federal Fair Debt Collection Practices Act by threatening non-judicial foreclosure on debt that was partially but not fully time barred. A copy of the opinion in Mahmoud v. De Moss Owners Ass’n Inc. is available at: Link to Opinion. The plaintiffs owned a condominium in Houston, Texas. They sued the condominium ownership, its management company and its collection lawyers concerning their efforts to collect assessments and other charges under the association’s declaration and related documents.…
The U.S. Court of Appeals for the First Circuit recently held that a borrower cannot invoke the discovery rule to assert an otherwise untimely Massachusetts UDAAP claim (Chapter 93A) relating to a loan modification agreement, because the alleged harm was not “inherently unknowable” at the time of its occurrence. In so ruling, the Court determined that the borrower knew he was required to make monthly payments when he signed the loan modification agreement. Therefore, the statute of limitations began to run when the borrower stopped making payments, not when the creditor provided notice of the default. A copy of the opinion…
The Court of Appeals of Maryland, the state’s highest court, recently held that a real estate development company’s recording of a declaration for utility infrastructure expenses did not create a lien on the referenced real estate, and instead it should have followed the Maryland Contract Lien Act procedures to create a lien and establish its priority for the delinquent assessments purportedly owed by a mortgagee. A copy of the opinion in Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, LLC is available at: Link to Opinion. A real estate development company purchased land for a 330-lot residential development and…
The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a putative class action complaint alleging various causes of action relating to the cybertheft of personally identifiable information, based in part on the plaintiffs failure to adequately allege any damages caused by the data breach or how the defendant breached the terms of its agreement . A copy of the opinion in Kuhns v. Scottrade, Inc. is available at: Link to Opinion. The defendant securities brokerage firm suffered an attack by hackers in which the hackers successfully accessed the firm’s customer database extracting personally identifiable information…
The U.S. Court of Appeals for the Ninth Circuit recently held that the Federal Foreclosure Bar’s prohibition on nonconsensual foreclosure of assets of the Federal Housing Finance Agency preempted Nevada’s superpriority lien provision and invalidated a homeowners association foreclosure sale that purported to extinguish Freddie Mac’s interest in the property. A copy of the opinion in Berezovsky v. Bank of America is available at: Link to Opinion. In 2013, an investor purchased a home at a homeowners association foreclosure sale for $10,500 and recorded a deed in his name. The purchaser argued that Nevada’s superpriority lien provision, Nev. Rev. Stat. § 116.3116,…