The U.S. District Court of the Central District of California recently dismissed a borrower's putative class action complaint against a non-bank that supposedly was the "true lender" for allegedly usurious student loans that were extended in the name of a bank.
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 held that an erroneous advertisement that misstated the price of a vehicle did not constitute an offer that could be accepted to form a contract, and did not constitute a UDAP violation. A copy of the opinion in Burkhart v. Wolf Motors of Naperville, Inc. is available at: Link to Opinion. The plaintiff car buyer saw an advertisement online for a vehicle and contacted the defendant car dealership to purchase the vehicle at the advertised price. The car dealer explained to her that the price of the vehicle was $36,991 and the price…
The District Court of Appeal of Florida, Second District, recently held that a mortgagee is entitled to the safe harbor limiting liability for unpaid condominium assessments under section 718.116 of the Florida Condominium Act, even though the mortgagee holds, but does not own, the note and mortgage. A copy of the opinion in Brittany’s Place Condominium Association, Inc. v. U.S. Bank, N.A. is available at: Link to Opinion. A mortgagee filed a foreclosure action, naming the condominium association (COA) as a party defendant. The mortgagee alleged in the complaint that it was “the holder of the note and mortgage and the servicer…
The U.S. Court of Appeals for the Eleventh Circuit recently held that the word “surrender” in the Bankruptcy Code, 11 U.S.C. § 521(a)(2), requires that debtors relinquish all of their rights to the collateral. In so ruling, the Court ordered the borrowers to “surrender” their house to the mortgagee in a foreclosure action, and held that the bankruptcy court had the authority to compel the borrowers to fulfill their mandatory duty under 11 U.S.C. § 521(a)(2) not to oppose a foreclosure action in state court. A copy of the opinion in David Failla, et al v. Citibank, N.A. is available at: …
The U.S. Court of Appeals for the Eleventh Circuit recently held that the federal Fair Debt Collection Practices Act’s venue provision did not apply to post-judgment action garnishment proceedings. A copy of the opinion in Ray v. McCullough Payne & Haan, LLC is available at: Link to Opinion. A debt collector filed a collection action. In compliance with the FDCPA’s venue provision, the debt collector brought that action in Fulton County, Georgia, where the debtor resided. After obtaining a judgment against the debtor in that action, the debt collector initiated a garnishment proceeding against the debtor’s bank to collect on the…
8th Cir. Rejects FDCPA Claims Regarding Follow Up Calls for Location Information, Alleged Harassment
8th Cir. Rejects FDCPA Claims Regarding Follow Up Calls for Location Information, Alleged Harassment
The U.S. Court of Appeals for the Eighth Circuit recently held that a debt collector did not violate the federal Fair Debt Collection Practices Act for making subsequent telephone calls to a person other than the consumer regarding the location of the debtor, because the debt collector reasonably believed that the person’s initial response was incomplete. In so ruling, the Eighth Circuit held as a matter of law that 14 calls over a period of approximately two months did not rise to the level of harassment prohibited under the FDCPA, at 15 U.S.C. § 1692d(5). A copy of the opinion in Kuntz…
The U.S. Court of Appeals for the Seventh Circuit recently reversed the dismissal of a putative class action alleging that the debt collector defendants used misleading language in their state court collection complaints in violation of the federal Fair Debt Collection Practices Act. In so ruling, the Court held that the debt collector’s use of language similar to a notice under 15 U.S.C. § 1692g in its collection complaint was deceptive as a matter of law because it could lead an unsophisticated consumer to believe that the debt would be assumed to be valid by the court if not disputed…
The U.S. Court of Appeals for the District of Columbia Circuit recently denied a mortgage company’s petition for review and granted the National Labor Relations Board’s cross-petition for enforcement, holding that the NLRB correctly determined that the mortgage company’s workplace rules unreasonably burdened its employees’ ability to discuss legitimate employment matters, protest employer practices and organize in violation of section 7 of the National Labor Relations Act. A copy of the opinion in Quicken Loans, Inc. v. NLRB is available at: Link to Opinion. A loan officer began working in the mortgage company’s Scottsdale, Arizona office and signed an employment agreement…
The U.S. Court of Appeals for the Ninth Circuit, in a case of first impression and the first published circuit court opinion to address the issue, recently held that each and every debt collector — not just the first one to communicate with a debtor — must send the debt validation notice required by the federal Fair Debt Collection Practices Act. A copy of the opinion in Hernandez v. Williams Zinman & Parham is available at: Link to Opinion. A consumer financed the purchase of her automobile, but stopped making payments on the loan. A debt collection company sent her a…
The Court of Appeal of the State of California, Second District, recently affirmed the denial of injunctive relief to a borrower who claimed a violation of Cal. Civ. Code § 2924(a)(6) of the California Homeowner Bill of Rights, holding that injunctive relief is only available under two specific HBOR provisions where the state legislature explicitly authorized such relief – i.e., Cal. Civ. Code §§ 2924.12(a)(1) and 2924.19(a)(1). Because the borrower’s allegations did not fall under either of those sections, the Court held that the borrower was not entitled to injunctive relief. A copy of the opinion in Lucioni v. Bank of…
The District Court of Appeal of the State of Florida, Second District, recently reversed a summary judgment in favor of a mortgagee in two consolidated actions for declaratory and injunctive relief regarding the extent of the mortgagee’s liability for unpaid homeowners association assessments, holding that the trial court erred because the homeowners association was not joined as a party, and therefore its liens remained unaffected by foreclosure of the mortgages. The Court pointed out that the only remedies available to a purchaser such as the mortgagee was to move “to compel redemption or filing a de novo action to re-foreclose.”…
The U.S. District Court for the Northern District of California recently held that an individual had Article III standing to bring a federal Telephone Consumer Protection Act claim against a bank because the individual sufficiently alleged a concrete and particularized injury. However, the Court warned that not just any alleged violation of the TCPA will necessarily give rise to Article III standing. The Court found persuasive the allegations here that the bank supposedly made voluminous calls to the individual even after the individual supposedly requested the bank to stop calling him because he was not the debtor. A copy of…