The Court of Appeals of California, Second Appellate District, recently held that a borrower failed to state a cause of action for alleged violations of the “dual tracking” and “single point of contact” provisions of California’s Homeowners Bill of Rights (HBOR), Calif. Civ. Code, §§ 2923.6, 2923.7, because: (1) the borrower did not allege acceptance of a loan modification agreement within 14 days after receiving it; and (2) the borrower’s allegations demonstrated that the servicer assigned a customer service representative to process the loan modification application. The Court also dismissed the borrower’s allegations of lack of standing to foreclose, illegal…
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 U.S. Court of Appeals for the Seventh Circuit recently held that a bank’s relationship with a software services company, under which the software services company required its customers to use the bank for the depositary services ancillary to the software, did not violate anti-tying provisions of the federal Bank Holding Company Act, at 12 U.S.C. § 1972. A copy of the opinion McGarry & McGarry, LLC v. Rabobank, N.A. is available at: Link to Opinion. A bankruptcy trustee hired an administrative services company to provide a variety of services in a bankruptcy proceeding. Among other things, the administrative services…
The Massachusetts Supreme Judicial Court (“SJC”) recently affirmed a lower court’s ruling that a mortgagee’s failure to send a post-foreclosure notice required by Mass. Gen. Laws c. 244, § 15A does not render a foreclosure void. A copy of the opinion in Turra v. Deutsche Bank Trust Company Americas is available at: Link to Opinion. A mortgagee notified a borrower that he was in default under the terms of his mortgage. The mortgagee subsequently foreclosed on the property and commenced a summary process action. The borrower then filed suit against the mortgagee, and the mortgagee moved to dismiss the borrower’s…
The U.S. Court of Appeals for the Ninth Circuit recently held that a notice regarding overdue homeowners association (HOA) assessments contained language that overshadowed and conflicted with the homeowner’s federal Fair Debt Collection Practices Act debt validation rights. Limiting the scope of its ruling in Ho v. ReconTrust Co., NA, 840 F.3d 618, 620 (9th Cir. 2016), the Court rejected the debt collector’s argument that in sending the notice regarding overdue HOA assessments, it merely sought to perfect a security interest and was therefore subject only to the limitations under 15 U.S.C. § 1692f(6). A copy of the opinion in…
In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that a prospective employer violated the federal Fair Credit Reporting Act by including a liability waiver in the same document as the statutorily required disclosure notice for obtaining a job applicant’s consumer report. In so ruling, the Ninth Circuit held that the company’s conduct was “willful” as a matter of law, because the language of the statute clearly contradicted the company’s interpretation, and whether or not the company “actually believed that its interpretation was correct is immaterial.” A copy of the opinion in…
The U.S. Court of Appeals for the Seventh Circuit recently held that the presence of capital as one of six components in the FDIC’s CAMELS rating does not mean that the rating as a whole is committed to agency discretion for the purpose of 5 U.S.C. §701(a)(2) and therefore unreviewable. A copy of the opinion in Builders Bank v. FDIC is available at: Link to Opinion. As you may recall, the FDIC is charged with conducting a full-scope on site examination every 12-18 months of the banks whose deposits it insures. In June 2015, the FDIC examined a bank and…
The Appellate Division of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida recently reversed summary judgment in favor of a mortgage loan servicer in a case filed by a borrower under the Florida Consumer Collections Practices Act (FCCPA), holding that: (a) the account statement at issue improperly attempted to collect a debt that was no longer owed, and was not preempted by the federal Truth in Lending Act (TILA); and (b) sending the statement to the borrower’s attorney did not avoid liability because the “competent lawyer” standard adopted by the Seventh Circuit does…
The U.S. Court of Appeals for the Ninth Circuit recently held that class action plaintiffs are not required to demonstrate that there is an administratively feasible way to determine who is in a class in order for the class to be certified. In so ruling, the Ninth Circuit noted that the Sixth, Seventh, and Eighth Circuits have similarly ruled. See Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 995–96 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015),…
The U.S. Court of Appeals for the Seventh Circuit recently held that a mortgage servicer’s response to a borrower’s written request for information complied with requirements of the federal Real Estate Settlement Procedures Act (RESPA) and, to the extent any information was missing, the borrower suffered no actual damages as a result. In so ruling, the Seventh Circuit rejected the borrowers’ pattern or practice argument under RESPA, based on two district court cases in 2012 and 2014 holding the servicer liable for RESPA violations, because “[t]wo examples of similar behavior — in different states, separated by a handful of years,…
The U.S. Court of Appeals for the First Circuit recently affirmed a bankruptcy court’s ruling that a mortgagee did not violate the discharge injunction in 11 U.S.C. § 524(a) by sending IRS 1099-A forms to borrowers after their discharge, agreeing that the IRS forms were not objectively coercive attempts to collect a debt. A copy of the opinion in Bates v. CitiMortgage, Inc. is available at: Link to Opinion. The borrowers obtained a mortgage loan secured by their home. They filed bankruptcy under Chapter 7 in 2008 and received a discharge of their personal liability for the loan in 2009.…
The U.S. Court of Appeals for the Sixth Circuit recently reversed a district court’s denial of class certification and dismissal of consolidated complaints alleging that a mortgage lender violated the federal Telephone Consumer Protection Act (TCPA) by sending “junk faxes” to businesses without their consent or a pre-existing business relationship. In so ruling, the Court held: (a) the mere mention of a defense is not enough to defeat the predominance requirement under Fed. R. Civ. P. 23(b)(3); and (b) an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case. A copy of the opinion in Bridging…
The U.S. Court of Appeals for the Second Circuit recently rejected an interpretation of Spokeo that would preclude all violations of statutorily mandated procedures from qualifying as concrete injuries supporting standing. In so ruling, the Court held that some violations of statutorily mandated procedures might entail the concrete injury necessary for standing where Congress conferred the procedural right to protect a plaintiff’s concrete interests, and where the procedural violation presents a material “risk of real harm” to that underlying concrete interest. A copy of the opinion in Strubel v. Comenity Bank is available at: Link to Opinion. As you may…