The Appellate Division of the Fifteenth Judicial Circuit of the State of Florida recently reversed dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim alleging a debt collector’s letter falsely represented a bank was the creditor of a loan. In so ruling, the Appellate Division confirmed that even though a foreclosure action is not necessarily debt collection, the enforcement of a promissory note constitutes debt collection activity even if done in conjunction with the enforcement of a security interest, and even the debt collector stated it was seeking solely to foreclose the creditor’s lien on the real estate,…
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 Fifth Circuit recently affirmed summary judgment in favor of a loan owner and its loan servicer because the servicer gave the required 20-day notice of default under the Texas Property Code prior to initiating foreclosure, and the borrower failed to allege violations of the Texas Debt Collection Act (TDCA). A copy of the opinion in Diana Rucker v. Bank of America, N.A., et al is available at: Link to Opinion. The borrower obtained a $175,000 loan in 2005 in order to purchase her home, signing a note and deed of trust. The deed of…
The Court of Appeals of Georgia, Second Division, recently held that a debt collector did not violate the federal Fair Debt Collections Practices Act (FDCPA), holding that even if the alleged misrepresentations in the debt collector’s affidavit were technically false, they were not material and thus failed to state a claim. A copy of the opinion in Summer v. Security Credit Services LLC is available at: Link to Opinion. In August 2006, a national bank issued a credit card to the debtors, who defaulted by failing to pay the account. In April 2011, the issuing bank and a debt buying company…
The Maryland Court of Appeals recently affirmed a trial court’s grant of summary judgment in a putative class action “application fraud” case in favor of a mortgage company, bank, loan officers, realtors and a realty group and against the putative class of borrowers. In so ruling, the Court held: (1) the borrowers’ allegations were time barred; (2) the borrowers were put on inquiry notice and presumed to know the contents of the fraudulent loan applications they signed; (3) the lenders and realtors were not shown to have prevented the borrowers from reading the application documents; (4) the lenders had no…
In an action alleging that the defendants violated the federal Fair Debt Collection Practices Act (FDCPA) by sending a form letter attempting to collect on allegedly time-barred debts, the U.S. District Court for the Middle District of Florida recently denied the plaintiff’s motion for class certification. In so ruling, the Court held: The plaintiff failed to demonstrate that the defendants’ records contain sufficient information from which the Court could determine whether each class member’s debt was obtained for “consumer” purposes; and Even if Plaintiff were able to establish on a class-wide basis that the defendants had a routine practice of…
The U.S. Court of Appeals for the Second Circuit recently reversed dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim based on the statute of limitations, holding that an FDCPA violation occurs when a bank freezes a debtor’s bank account, not when a debt collector sends a restraining notice to the bank. In so ruling, the Court distinguished the rulings in Maloy v. Phillips, 64 F. 3d 607 (11th Cir. 1995) and Mattson v. U.S. W. Commc’ns, Inc., 967 F. 2d 259 (8th Cir. 1992), which held that an FDCPA violation occurs when the alleged unlawful debt collection…
The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim premised solely on the allegation that an affiant who swore to have personal knowledge of the facts did not, in fact, possess personal knowledge when he made the affidavit. In reaching its decision the Court held that even if the affiant lacked “personal knowledge,” the plaintiff had not plausibly alleged that the content of the affidavit contained a false statement “in any meaningful way.” A copy of the opinion in Janson v. Katharyn B. Davis, LLC is available…
The District Court of Appeal of the State of Florida, Fifth District, recently reversed a final judgment of foreclosure in the mortgagee’s favor, holding that based on the default date alleged in the complaint, the default date alleged in a prior foreclosure suit as to the same loan, and the dismissal without prejudice of the prior foreclosure action, the mortgagee’s foreclosure claim was barred by Florida’s five-year statute of limitations. However, in so ruling, the Fifth District also held that the mortgagee was “not precluded from filing a new foreclosure action based on different acts or dates of default not…
The U.S. Court of Appeals for the First Circuit recently held that a failure to file a probate claim does not extinguish a mortgage lien under Rhode Island law. In so ruling, the Court held that “the piper must be paid.” A copy of the opinion is available at: Link to Opinion. The plaintiffs, a brother and sister, inherited their mother’s house. During her lifetime, the mother had taken out a reverse mortgage secured by the house. The mortgage securing the loan contained an acceleration clause and power of sale and became due and payable upon the mother’s death. The…
The U.S. District Court for the District of Oregon recently held that a notice provided pursuant to 15 U.S.C. 1692g that also contained additional language requesting that a dispute of the debt “please” be sent in writing violated the federal Fair Debt Collection Practices Act (FDCPA). In so ruling, the District Court held that such additional language overshadows or is inconsistent with a consumer’s right to orally dispute the debt within the 30-day period under 15 U.S.C. 1692g, and constitutes a false representation or deceptive means to collect or attempt to collect a debt under the FDCPA. A copy of…
The U.S. Court of Appeals for the Sixth Circuit recently affirmed judgment on the pleadings in favor of a debt collector because the voicemail in question, which was left at the plaintiff’s business, was not a “communication” as defined by the federal Fair Debt Collection Practices Act (FDCPA) because it did not convey information about the debt. A copy of the opinion is available at: Link to Opinion. A debt collector sent a letter to the debtor’s business requesting payroll information and later left a voicemail at the debtor’s business that stated the caller’s name, the name of the company…
The U.S. Court of Appeals for the Eleventh Circuit recently held that a party challenging an arbitration agreement containing a delegation clause – requiring threshold determinations, such as whether an arbitration agreement is enforceable, to be made by an arbitrator – must challenge the delegation clause specifically, and not simply the agreement as a whole. A copy of the opinion is available at: Link to Opinion. The plaintiff, a Georgia resident, responded to a television advertisement for short-term loans by applying for the $1,000 loan using his computer. The lender was a South Dakota limited liability company located on Indian…