In a case involving the enforceability of so-called “clickwrap” web-based agreements, the U.S. Court of Appeal for the Eleventh Circuit recently affirmed the denial of a defendant’s motion to compel arbitration, holding that the defendant failed to prove the existence of an agreement to arbitrate. Because the Court found that the defendant offered no competent evidence to demonstrate the existence of a genuine issue of material fact concerning the existence of an arbitration agreement, the debt buyer’s motion to compel arbitration must be denied as a matter of law without the need for a trial. A copy of the opinion…
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 Fourth Circuit recently held that a lender’s practice of charging late fees when the amount of the payment was insufficient to cover both the scheduled payment and earlier late fees violated Maryland’s Credit Grantor Closed End Credit Provisions (CLEC). However, the Court also held that the lender’s practice of applying payments first to late charges, then to accrued interest, and then to principal, as well as the lender’s internal accounting practices, did not violate CLEC. A copy of the opinion in Williams v. Lendmark Fin. Serv. is available at: Link to Opinion. In 2009,…
The Supreme Court of Ohio recently held that, when debt on promissory note secured by mortgage has been discharged in bankruptcy, the holder of the note may not pursue collection against the maker of note, but the mortgagee has standing to foreclose on the collateral property, and can use the amounts due on the note as evidence to establish that it may collect from the forced sale of the property. The Court also held that, regardless of whether the creditor can obtain a personal judgment on the note against the borrowers, the creditor must still prove that it is the…
The U.S. District Court for the Middle District of Georgia recently held that when a mortgagee makes some affirmative misrepresentation or action that renders a foreclosure sale unfair, a claim for wrongful foreclosure may stand independently of a claim for fraud. The Court also held that the statute of limitations on a claim under a security deed is 21 years, if the security deed is a sealed instrument under Georgia law. A copy of the opinion in Malone v. Federal Home Loan Mortgage Corporation is available at: Link to Opinion. On Aug. 26, 2007, in connection with a refinance mortgage…
The U.S. Court of Appeals for the Eleventh Circuit recently reversed in part a trial court’s ruling granting summary judgment in favor of a debt buyer, its affiliated debt collector and their parent company, holding that a reasonable jury could find that the defendants willfully violated section 1681s-2(b) of the federal Fair Credit Reporting Act when they reported two charged-off debt accounts as “verified” without obtaining sufficient documentation that the debts in fact belonged to the plaintiff consumer. In so ruling, the Court held that a jury could find that because the buyer retained the right to seek account-level documentation…
The Appellate Court of Illinois, Second District, recently held that a foreclosure judgment was void, where the foreclosing first mortgagee did not properly name a second mortgagee in its summons. A copy of the opinion in U.S. Bank National Association v. Johnston is available at: Link to Opinion. In 1997, the defendant borrowers executed a mortgage and note against their rental property. The mortgage conveyed a lien interest in the property as security for the note to the first mortgagee. This first mortgage was recorded. On Jan. 28, 2005, the defendant-borrowers executed a second mortgage and note against the property. The…
The U.S. Court of Appeals for the Seventh Circuit recently held that as a matter of federal procedural law, a judgment of foreclosure is not a final and appealable judgment, even if state foreclosure law might provide otherwise. Here, the Court held that a Wisconsin judgment of foreclosure was not final and appealable when obtained in a federal district court, even though Wisconsin law treats a foreclosure judgment ordering a sale as final and appealable. A copy of the opinion in Bank of America, N.A. v. Martinson is available at: Link to Opinion. A mortgagee filed suit to foreclose a residential…
The District Court of Appeal of Florida, Second District, recently reversed a final judgment of foreclosure, instead directing the trial court to enter judgment in favor of the borrower. In so ruling, the Appellate Court rejected and disregarded the current servicer’s evidence that the loan modification documents had not been received, because the borrowers introduced evidence that they had returned their signed loan modification agreement materials to the prior servicer, the prior servicer received the materials, and the prior servicer accepted the modified payments. With this evidence, the Appellate Court held that the loan had been modified. A copy of…
The Court of Appeals of California, Fourth District, recently held that a homeowner who has been foreclosed on by one with no right to do so — by those allegations alone — sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. Citing Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, the Appellate Court also held that, because the plaintiff properly alleged the foreclosure was void and not merely voidable, tender was not required to state a cause of action for quiet title or for cancellation of instruments. A copy of the opinion in Sciarratta v.…
Interpreting the Supreme Court of the United States’s ruling in Campbell-Ewald Co. v. Gomez, the U.S. District Court for the District of Minnesota recently held that a defendant cannot moot a putative class action against it, even by tendering the full amount claimed to the named plaintiff and before a motion for class certification is filed. A copy of the opinion in Ung v. Universal Acceptance Corporation is available at: Link to Opinion. Beginning in June 2014, an auto finance company allegedly repeatedly called the plaintiff’s cell phone in an attempt to reach an individual who allegedly listed the plaintiff as a…
The Supreme Court of California recently held that, in determining whether punitive damages awards are within constitutional limits, attorney’s fees may be included in the calculation of the ratio of punitive to compensatory damages, regardless of whether the fees are awarded by the trier of fact as part of its verdict or are determined by the trial court after the verdict has been rendered. A copy of the opinion in Nickerson v. Stonebridge Life Insurance Company is available at: Link to Opinion. The plaintiff suffered a broken leg and was taken to a veterans hospital. He experienced several complications from his…
The U.S. Court of Appeals for the Fifth Circuit recently confirmed that the federal Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., does not allow recovery for commercial or investment property losses. The Court also concluded that where a plaintiff points to no evidence that the denial of credit was actually caused by the defendant’s inaccurate credit reporting, judgment is proper in favor of the furnisher. Finally, the Fifth Circuit concluded that a plaintiff is not entitled to emotional distress damages where the only evidence of emotional distress is the plaintiff’s own self-serving and conclusory deposition testimony. A…