The County Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, recently struck a mortgagee’s and servicer’s offer of judgment in an action under the Florida Consumer Collection Practices Act, holding in a matter it deemed of great public importance that the FCCPA preempts Florida’s Offer of Judgment statute. A copy of the order in Hall, Harold v. Deutsche Bank National Trust Company is available here: Link to Order. In May 2013, a borrower filed a one-count complaint against defendants, a mortgagee and its loan servicer, alleging a violation of the FCCPA. The defendants filed an offer of judgment pursuant…
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 Eighth Circuit recently affirmed summary judgment against the seller and originator of mortgage loans and in favor of the purchaser because the originator breached the purchase and sale agreement by refusing to cure or repurchase eight of the 11 loans. A copy of the opinion in CitiMortgage, Inc. v. Chicago Bancorp, Inc. is available at: Link to Opinion. The plaintiff mortgage loan investor purchased mortgage loans originated by the defendant lender in 2004. The plaintiff’s business involved re-selling most of its loans to other investors in the secondary mortgage market. The purchase and sale agreement required the…
The U.S. Bankruptcy Court for the Middle District of Florida recently held that: 1) A bankruptcy trustee was entitled to recover $1,000 in statutory damages on behalf of each of the husband and wife debtors against a loan servicer for violating the Florida Consumer Collection Practices Act (FCCPA) by contacting the debtors after they were represented by counsel; and 2) The servicer could not set off the $2,000 in FCCPA damages against the balance owed on the mortgage loan because, according to the Court, allowing a set off would thwart the FCCPA’s goal of deterring abusive debt collection practices; and…
The U.S. Court of Appeals for the First Circuit recently held that a genuine dispute of material fact precluded summary judgment on the issue of whether the sale of collateral was “commercially reasonable,” even though there was no evidence that the sale was not “fairly conducted.” A copy of the opinion in Harley-Davidson Credit Corp. v. Galvin is available at: Link to Opinion. The assignee of a loan secured by an interest in an aircraft sued the guarantor of the loan to collect $108,681.50, the deficiency that remained after the assignee sold the collateral through a third-party dealer. Pursuant to the loan…
The United States District Court for the Western District of Missouri recently granted a debt collector’s motion for judgment on the pleadings, holding an internal account number displayed on the envelope of a demand letter did not violate the Fair Debt Collection Practices Act (FDCPA) because it did not reveal the plaintiff was a debtor. A copy of the opinion in McShann v. Northland Group, Inc. is available at: Link to Opinion. In March 2014, the debt collector sent a demand letter regarding a consumer debt owed by the plaintiff. The letter’s envelope had a window in which the plaintiff’s name,…
The U.S. Court of Appeals for the Eleventh Circuit recently struck down Florida’s “anti-surcharge” statute, Fla. Stat. § 501.0117, holding that the Florida law prohibiting charging a fee to pay by credit card was an unconstitutional restriction of free speech. A copy of the opinion in Dana’s Railroad Supply, et al v. Attorney General, State of Florida is available at: Link to Opinion. Four small businesses filed suit after receiving cease-and-desist letters from the Florida Attorney General demanding they refrain from charging lower prices for customers using cash and higher prices for those using credit cards, and demanding that they refrain from…
In a case addressing what it means to “surrender” property under the Bankruptcy Code, the U.S. District Court for the Southern District of Florida recently held that a Chapter 7 trustee’s abandonment of real property only restores legal title to the debtors as if no bankruptcy petition had been filed, and does not also give the debtors the right to contest the mortgagee’s foreclosure if the debtors elected to surrender the property. A copy of the opinion in Failla v. Citibank, NA is available at: Link to Opinion. Husband and wife debtors defaulted on their mortgage and the mortgagee sued to foreclose.…
The U.S. Court of Appeals for the Seventh Circuit recently reversed a district court’s denial of class certification in a putative class action alleging that a debt collector violated the federal Fair Debt Collection Practices Act (FDCPA) by sending supposedly misleading letters to Illinois residents trying to collect time-barred debts. A copy of the opinion in Scott McMahon v. LVNV Funding, LLC is available at: Link to Opinion. The plaintiff alleged that the defendant debt collector violated the FDCPA because it sent “dunning letters containing language that would mislead an unsophisticated consumer into believing that the debt is legally enforceable” even…
The U.S. District Court for the District of New Jersey recently dismissed a debtor’s claims for violations of the federal Fair Debt Collection Practices Act (FDCPA) and the New Jersey Truth in Consumer Contract Warranty and Notice Act (TCCWNA), holding the debtor’s failure to schedule his lawsuit as an asset of his bankruptcy estate deprived him of standing to later assert the claims. A copy of the opinion in Lewis v. Portfolio Recovery Associates, LLC is available at: Link to Opinion. In March 2015, the debtor filed a lawsuit alleging the defendant sent him a letter in an attempt to collect a debt…
The U.S. Court of Appeals for the Second Circuit recently affirmed the dismissal of an action by the trustee of a residential mortgage-backed securities trust for breach of contractual obligations to repurchase mortgage loans that allegedly did not conform to representations and warranties, holding that: (1) the breach of contract claim was barred by the statute of limitations, which ran from the date the representations and warranties were made; (2) the so-called “extender provision” of the federal Housing and Economic Recovery Act did not apply to the trustee’s claim; and (3) the trustee’s claim for breach of the implied covenant…
The District Court of Appeals of the State of Florida, Fourth District, recently reversed final judgment of foreclosure in favor of a mortgagee for entry of judgment in favor of the mortgagors, where the mortgagee failed to prove that it came into possession of the note containing an undated, blank endorsement before the foreclosure was filed. In so ruling, the Fourth District confirmed that a trial court abuses its discretion in admitting business records if it is not established that the records were made at or near the time of the event. In addition, the Fourth District held that a…
The U.S. District Court for the Middle District of Florida recently denied a debt collector’s motion for sanctions based on the plaintiff’s filing of allegedly frivolous consumer protection claims, which the plaintiff consumer voluntarily dismissed with prejudice after demand from the debt collector’s counsel, where the debt collector failed to show the claims met the Eleventh Circuit’s two-prong test for frivolity. A copy of the opinion in Claudet v. First Federal Credit Control, Inc., is available here: Link to Opinion. After the plaintiff consumer underwent a medical procedure with a medical imaging company, she allegedly informed the medical imaging company…