Reversing the rulings of the trial court and intermediate appellate court, the Supreme Court of Wisconsin recently concluded that a fire which spread across several properties was a single ‘occurrence’ for purposes of the commercial general liability policy, and not a new ‘occurrence’ each time the fire crossed a property line. By determining that the fire was a single ‘occurrence’ under the policy, the policy’s reduced per-occurrence limit for property damage “due to fire, arising from logging or lumbering operations” under its incorporated endorsement, rather than its higher aggregate limit, applied. A copy of the opinion in Ecura Insurance v. Lyme…
Posts published in December 2018
The U.S. Court of Appeals for the Ninth Circuit recently held that Washington’s six-year statute of limitations governing contracts instead of the Truth in Lending Act’s one-year statute of limitations applies to claims to enforce rescission under TILA, after a notice of right to cancel was timely submitted. The Ninth Circuit also held that the trial court should have given the borrowers leave to amend the complaint because the borrower’s rescission claim under TILA was not time barred, and amending the complaint would not be futile. A copy of the opinion in Hoang v. Bank of America is available at: Link…
The U.S. Court of Appeals for the Ninth Circuit held that an online payday lender’s “loan note” violated § 5 of the Federal Trade Commission Act because, although it was “technically accurate,” the lender’s online loan portal made it difficult to discern the loan terms and therefore likely to mislead consumers about the terms of the loan. Accordingly, the Ninth Circuit affirmed the trial court’s summary judgment and relief order in favor of the FTC. A copy of the opinion in Federal Trade Commission v. AMG Capital Management, LLC is available at: Link to Opinion. The defendant owner controlled a series…
The Supreme Court of Illinois recently held that a bank’s suit for breach of a promissory note — a third attempt to collect from the same defendant borrowers based on the same default of the promissory note — was barred by Illinois’ ‘single refiling rule.’ In so ruling, the Supreme Court concluded that, although the first lawsuit sought relief of foreclosure of the mortgage that secured the loan, and the second and third lawsuits were for breach of the underlying promissory note, all three suits asserted the same cause of action under the mortgage and the note, importantly, because the…
The Court of Appeals of California, Fourth District, recently affirmed summary judgment awarded in favor of the mortgage servicer and loan owner defendants on the borrowers’ claims for alleged violations of the California Homeowner Bill of Rights (HBOR), finding that the defendants properly contacted the borrowers and provided them with the required foreclosure information before recording the notice of default. A copy of the opinion in Schmidt v. Citibank, N.A. is available at: Link to Opinion. The plaintiffs (“borrowers”) obtained a loan in 2007, secured by their residence. In 2013, the borrowers defaulted and entered into a loan modification agreement…
The U.S. Court of Appeals for the Third Circuit recently held that the tolling doctrine set forth in American Pipe & Constr. Co. v. Utah does not apply where the named plaintiff in a failed class action commences a subsequent lawsuit outside the statute of limitations. In so ruling, the Court held that American Pipe only tolls the statute of limitations for unnamed members of the putative class. A copy of the opinion in Weitzner v. Sanofi Pasteur Inc. is available at: Link to Opinion. In April 2004 and March 2005, a doctor received two unsolicited faxes from a pharmaceutical company and…
The U.S. Court of Appeals for the Third Circuit held that a title insurer under Pennsylvania state law only had a duty to defend its insured lender for the covered claims alleged in the four corners of a borrower’s complaint, not for all alleged claims under the “in for one, in for all” rule. A copy of the opinion in Lupu v. Loan City, LLC is available at: Link to Opinion. A Pennsylvania borrower refinanced his home loan and mortgage with a lender. The loan transferred several times finally ending up with the current holder. A title insurer provided title…
The U.S. Court of Appeals for the Seventh Circuit recently joined the Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits, in ruling that class or collective arbitrability is a gateway question that is presumptively for the court to decide, rather than the arbitrator. In so ruling, the Court vacated the trial court’s order enforcing a $10 million federal “wage and hour” Fair Labor Standards Act arbitration award against the defendant. A copy of the opinion in Herrington v. Waterstone Mortgage Corporation is available at: Link to Opinion. The plaintiff filed a putative class and collective action against her former employer. She alleged…
The U.S. District Court for the Northern District of Illinois recently held that the defendant company did not use an automatic telephone dialing system (ATDS) because its phone system did not use a random or sequential number generator to store or produce phone numbers to be called. In so ruling, the Court reversed a prior order and now entered summary judgment in favor of the defendant company on the plaintiff’s alleged TCPA claim in light of ACA International v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018). A copy of the opinion in Johnson v. Yahoo! Inc. is available at:…
The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s finding that a servicer did not violate the federal Real Estate Settlement Procedures Act (RESPA) and Wis. Stat. § 224.77 because the borrower could not prove that the servicer’s alleged failure to completely respond to a “qualified written request” (QWR) caused any actual damages, notwithstanding the alleged attorney’s fees incurred in reviewing the servicer’s response and the borrower’s alleged emotional distress. In so ruling, the Seventh Circuit held that “RESPA was not intended to give people who cannot pay their mortgages the means to engage in…
The U.S. District Court for the Southern District of California recently dismissed a consumer’s putative class action lawsuit against a mortgage lending and servicing company for purported damages sustained as a result of a security breach wherein his personal information was compromised, and the hackers attempted to open credit cards in his name. Although the Court previously concluded that the consumer had standing to bring his claims under Article III of the Constitution, it held that the consumer failed to state causes of action for negligence and violations of various California laws. A copy of the opinion in Razuki v.…