The California Court of Appeal for the First District recently affirmed an order denying class certification because the plaintiff did not present evidence to demonstrate how putative class members can be identified from the defendant’s records. A copy of the opinion in Noel v. Thrifty Payless, Inc. is available at: Link to Opinion. In July 2013, the plaintiff purchased an inflatable kids pool from a retail vendor. The plaintiff based his decision to purchase the pool on the pool’s packaging, which showed a photograph of a group of three adults and two children sitting and playing in the pool. The plaintiff…
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 Appellate Court of Illinois, Second District recently concluded that two borrowers failed to rebut the foreclosing mortgagee’s prima facie case of standing to pursue foreclosure against the borrowers, and affirmed the trial court’s determination that the plaintiff mortgagee established as a matter of law that it had standing. The Second District, however, reversed the trial court’s order of summary judgment by concluding there were issues of fact as to whether the plaintiff complied with HUD’s face-to-face interview requirement at 24 C.F.R. § 203.604. As to the standing issue, the Second District held that the plaintiff established a prima facie…
The U.S. Court of Appeals for the D.C. Circuit recently affirmed the dismissal of a federal False Claims Act lawsuit alleging a lender’s violation of the 2012 National Mortgage Settlement and violation of the Home Affordable Modification Program through the lender’s alleged false certifications of compliance. A link to the opinion in U.S. ex rel. Schneider et al. v. JPMorgan Chase Bank is available at: Link to Opinion. The relator, an owner of a mortgage servicing company who purchased numerous loans from the lender, alleges to have discovered numerous violations of the 2012 National Mortgage Settlement based upon the lender’s handling of…
The California Court of Appeal for the Fourth District recently affirmed an order denying class certification in a declaratory relief action because the plaintiff failed to establish ascertainability, predominance and superiority. In so ruling, the Appellate Court held that California Code of Civil Procedure section 382 did not have an equivalent to Rule 23(b)(1)(A) or (b)(2) of the Federal Rules of Civil Procedure, and that the federal rule provided less onerous requirements for declaratory or injunctive relief actions than for damages. A copy of the opinion in Hefczyc v. Rady Children’s Hospital-San Diego is available at: Link to Opinion. In November…
The U.S. Court of Appeals for the Seventh Circuit recently held that “debt collectors cannot immunize themselves from FDCPA liability by blindly copying and pasting the Miller safe harbor language” where that language is inaccurate under the circumstances. Accordingly, the Seventh Circuit reversed the trial court decision granting the debt collector’s motion to dismiss. A copy of the opinion in Boucher v. Finance System of Green Bay, Inc. is available at: Link to Opinion. The plaintiff debtors were Wisconsin residents who incurred and defaulted on debts for medical services. Their creditors sold those debts to the defendant collection agency, which in turn…
The Appellate Court of Illinois, First District, recently dismissed a mortgagee’s “breach of mortgage contract” action as an impermissible second refiling following prior voluntary dismissals of a 2011 foreclosure complaint and 2013 action for breach of the promissory note based upon the same note and mortgage. In so ruling, the Appellate Court concluded that, despite the plaintiff mortgagee’s differing theories of relief based upon foreclosure sale and deficiency judgment and enforcement of the note itself in past suits, dismissal was warranted under Illinois law, because all of the complaints arose from a single group of operative facts and sought to…
The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court’s judgment in favor of several lender defendants in a putative TCPA class action, ruling that the defendants could not be vicariously liable under the TCPA for a promoter’s text messages because the promoter was either not the defendants’ agent or the defendants did not have knowledge concerning material facts about the agent’s unlawful activities. In so ruling, the Ninth Circuit held that mere knowledge that an agent is engaged in an otherwise commonplace marketing activity, such as text message marketing, would not lead a reasonable person…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed a trial court’s order denying two borrowers’ request for attorney’s fees and costs on judicial estoppel grounds. In so ruling, the Fourth DCA held that the trial court improperly relied on a Fifth Circuit case and failed to apply Florida’s judicial estoppel doctrine when it concluded that the borrowers’ failure to disclose their attorney’s fee claim in their Chapter 11 bankruptcy schedules barred the fee claim. A copy of the opinion in Anfriany v. Deutsche Bank National Trust is available at: Link to Opinion. In 2008, the…
Adding to the growing split of authority among California’s various state appellate courts, and among various federal courts in California, the Court of Appeal of the State of California, Third Appellate District, recently held that a loan servicer may owe a duty of care to a borrower through application of the “Biakanja” factors, even though its involvement in the loan does not exceed its conventional role. In so ruling, the Third District “assumed without deciding” that California Civil Code § 2923.6(g) offers an affirmative defense to a negligence claim in loan modification cases where the borrower submits multiple loan modification…
The Sixth Circuit Court of Appeals recently concluded that distributing all of a company’s cash to its owners after a class action settlement was reached but before the court’s order to pay became final, thus leaving the company without the ability to pay class counsel’s fees or administration costs as required under the settlement agreement, did not constitute contempt. The trial court had originally determined that the distribution of the money constituted contempt because the defendant had knowingly violated the court’s order to pay class counsel’s fees. The Sixth Circuit, however, concluded that a finding of contempt is limited to…
9th Cir. Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity ‘Amount in Controversy’
9th Cir. Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity ‘Amount in Controversy’
The U.S. Court of Appeals for the Ninth Circuit recently held that the trial court did not have subject matter jurisdiction based upon diversity over claims which sought a temporary stay of a foreclosure sale pending the review of a loan modification application because the amount of controversy did not exceed $75,000. In so ruling, the Court held that, for claims which merely seek a temporary stay of a foreclosure sale, the amount in controversy is not the value of the underlying loan. A copy of the opinion in Corral v. Select Portfolio Servicing, Inc. is available at: Link to Opinion.…
In a case involving a claim on a fire insurance policy relating to damaged real estate, the U.S. Court of Appeals for the Sixth Circuit recently held that the insurance policy’s two-year limitations provision did not apply to a claim brought under section 500.2006(4) of Michigan Complied Laws because it was not a claim “under the policy,” and instead Michigan’s “catch-all” six-year period of limitations applied. In addition, and contrary to two previous unpublished rulings, the Sixth Circuit determined that a private cause of action exists under section 500.2006(4) Accordingly, the Sixth Circuit determined that the insured’s claim was timely,…