The California Court of Appeal, Fourth District, recently reversed summary judgment awarded in favor of the defendant based on violations of the California Invasion of Privacy Act, which prohibits the recording of confidential communications without the knowledge or consent of the other party, and the intentional recording of communications using a cellular or cordless telephone. In so ruling, the Appellate Court held that the defendant could not establish that it lacked the requisite intent to violate the Privacy Act, because the defendant’s full-time “always on” recording system recorded all calls on the company phones regardless of whether the calls were…
Posts published by “Maurice Wutscher LLP”
The attorneys of Maurice Wutscher are seasoned business lawyers with substantial experience in business law, financial services litigation and regulatory compliance. They represent consumer and commercial financial services companies, including depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, financial asset buyers and sellers, loss mitigation companies, third-party debt collectors, and other financial services providers. They have defended scores of putative class actions, have substantial experience in federal appellate court litigation and bring substantial trial and complex bankruptcy experience. They are leaders and influencers in their highly specialized area of law. They serve in leadership positions in industry associations and regularly publish and speak before national audiences.
The Massachusetts Supreme Judicial Court recently held that the “statutory power of sale” as defined in M.G.L. ch. 181, § 21 was incorporated by reference in a lender’s form reverse mortgage instrument even though the lender used the term “power of sale” rather than the specific term “statutory power of sale.” Accordingly, the SJC ruled, the lender was able to utilize the Massachusetts statutory power of sale. A copy of the opinion in James B. Nutter & Company v. Estate of Murphy is available at: Link to Opinion. In 2007 and 2008, three elderly borrowers each obtained loans from the same lender…
The U.S. Court of Appeals for the Third Circuit held that a collection letter sent to collect a time-barred debt that makes a “settlement offer” to accept payment “in settlement of” the debt could potentially violate the federal Fair Debt Collection Practices Act’s (FDCPA) general prohibition against “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Accordingly, the Third Circuit vacated the ruling of the trial court dismissing the complaint, and remanded the matter for further proceedings. A copy of the opinion in Tatis v. Allied Interstate, LLC is available…
The U.S. Court of Appeals for the Eleventh Circuit recently held that a bank could not enforce an arbitration clause inserted into an amended customer account agreement during the pending litigation incident to the sale and acquisition of the bank, because the plaintiff was actively opposing arbitration and the bank failed to notify the plaintiff’s counsel and the court of the purportedly “court-evicting” amendment. In so ruling, the Eleventh Circuit concluded that the bank “failed to demonstrate the requisite meeting of the minds to support a finding that the parties agreed through the February 2013 amendment to arbitrate their then-pending…
The Bankruptcy Appellate Panel of the Sixth Circuit recently held that the constructive notice provisions of section 1301.401 of the Ohio Revised Code do not limit a bankruptcy trustee’s avoidance powers as a hypothetical judgment lien creditor under section 544(a)(1) of the federal Bankruptcy Code. A copy of the opinion in In re Oakes is available at: Link to Opinion. In 2013, two debtors filed a petition for Chapter 7 bankruptcy protection. The debtors’ schedules listed the subject property and three mortgages against the subject property, two of which were held by the same mortgagee (“lender”). In 2014, the bankruptcy trustee…
The U.S. District Court for the Southern District of Florida recently held that a dialing system — which required calls to be manually dialed, could not place calls without human input, and could not dial predictively, or store or produce telephone numbers independently, which in this case was the Avaya X1 Platform — was not an automatic telephone dialing system (“ATDS”) under the federal Telephone Consumer Protection Act. Accordingly, the Court entered summary judgment in favor of the defendant mortgage loan servicers. A copy of the opinion in Ferrer v. Bayview Loan Servicing, LLC et al. is available at: Link…
The California Supreme Court recently held that unnamed class members do not become parties of record under Cal. Code of Civil Procedure section 902, with the right to appeal the class settlement, judgment or attorney fees award, unless they formally intervene in the class litigation before the action is final. A copy of the opinion in Hernandez v. Restoration Hardware, Inc. is available at: Link to Opinion. In 2008, the plaintiff filed a class action law suit against the defendant, alleging the furniture company committed numerous violations of the California Song-Beverly Credit Card Act, Cal. Civ. Code § 1747, et seq.,…
Illinois Supreme Court Holds Foreclosure Deadline to Challenge Service Tolled While Action Dismissed
Illinois Supreme Court Holds Foreclosure Deadline to Challenge Service Tolled While Action Dismissed
Reversing the rulings of both the appellate and the trial courts, the Supreme Court of the State of Illinois recently held that the deadline to file a motion to quash service under the Illinois Mortgage Foreclosure Law (IMFL) did not run while the foreclosure action was dismissed for want of prosecution. A copy of the opinion in Bank of New York Mellon v. Laskowski is available at: Link to Opinion. The plaintiff mortgagee filed a residential mortgage foreclosure complaint against, among others, the borrower and a limited liability company. The mortgagee filed an affidavit of service by publication indicating that,…
The Court of Appeal of California, First District, recently concluded that if two deeds of trust are submitted at the same time for recording, the order in which they are indexed is not determinative of priority. Instead, according to the Court, the intent of the parties will determine priority. In this case, one originating lender extended two loans secured by the same real estate, and it was apparent that the expectation was that the larger mortgage loan would have priority. The trial court had held that the defendant was the senior lienholder even though the defendant’s mortgage was indexed after…
The Court of Appeal of California, First District, recently held that an assignee of the original beneficiary of a deed of trust, as the current holder of an obligation, has the right under California Civil Code § 2941(b)(6) to prove damages against the title company that allegedly recorded a release of the deed of trust in error. A copy of the opinion in SMS Financial XXIII, LLC v. Cornerstone Title Company is available at: Link to Opinion. In 2004, a bank made a business loan to an investment company. The loan was guaranteed by the investment company’s principals (“guarantors”) and secured…
The California Court of Appeal for the Second District recently held that a correction offer under the California Consumer Legal Remedies Act did not prevent a consumer from pursuing causes of action for fraud and violation of the California Unfair Competition Law based on the same conduct because the CLRA’s remedies are cumulative and non-exhaustive. A copy of the opinion in Flores v. Southcoast Automotive Liquidators, Inc. is available at: Link to Opinion. An automotive dealer published print advertisements showing low prices for specific cars to attract customers to the dealership. Small print at the bottom of the advertisements stated that the…
The U.S. Court of Appeals for the Tenth Circuit recently held that a consumer had no claim under the federal Fair Credit Billing Act (FCBA) where he had already fully paid the balance of his credit cards, because after full payment there was no “credit outstanding.” A copy of the opinion in Hasan v. Chase Bank USA, NA is available at: Link to Opinion. The plaintiff consumer used a credit card from a bank (“Bank One”) to pay $689,176.92 to a company for the future delivery of wine. The consumer used another credit card from another bank (“Bank Two”) to…