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Posts published by “Brady Hermann”

Brady Hermann is based in Maurice Wutscher’s Boston office and supports the firm’s litigation matters in its New York office, practicing in the firm’s Commercial Litigation and Consumer Credit Litigation groups. Brady has substantial experience as a litigation attorney. He has represented individual and corporate clients in complex litigation matters, focusing on securities litigation and regulation, business and commercial litigation, multidistrict litigation and class actions and more. In addition, he has represented many of the nation’s largest securities broker-dealers in arbitration and regulatory proceedings before the Financial Industry Regulatory Authority and has represented and counseled clients in regulatory, enforcement and criminal investigations before the SEC, FINRA, state securities regulators, the Department of Justice, the FBI and various other governmental and self-regulatory organizations. For more information, see https://mauricewutscher.com/attorneys/brady-hermann/

Mass. SJC: Debt Collector Can’t Use Arbitration Provision to Thwart Class Action

The Massachusetts Supreme Judicial Court recently affirmed a lower court’s denial of a debt collector’s motion to compel arbitration, holding that the defendant had failed to provide “clear and definite” evidence of the parties’ intent that it benefit from the arbitration provision at issue.

Mass. SJC Holds Mass. Debt Collection Regs Apply to Creditors that Auto Dial or Don’t Leave Messages

The Massachusetts Supreme Judicial Court (SJC) recently held that Massachusetts debt collection regulations, which limit how often a creditor may attempt to contact a debtor via telephone in order to collect a debt, apply to creditors that use automatic dialing devices or voluntarily decide not to leave voicemail messages. A copy of the decision in Armata v. Target Corporation is available at:  Link to Opinion. The plaintiff initiated a matter in Superior Court, alleging the defendant violated 940 Code Mass. Regs. § 7.04(1)(f), which provides that “[it] shall constitute an unfair or deceptive act or practice for a creditor to contact…

Mass. SJC Holds Passive Debt Buyers Are Not ‘Debt Collectors’ Under State Law

In an important decision for the debt buying industry, the Massachusetts Supreme Judicial Court held that passive debt buyers are not “debt collectors” under the Massachusetts Fair Debt Collection Practices Act (MDCPA). A copy of the decision in Dorrian v. LVNV Funding, LLC is available at:  Link to Opinion. An amicus brief filed by Receivables Management Association International and written by Maurice Wutscher attorneys in support of the appellant is available at:  Link to Amicus Brief. In Massachusetts, “debt collectors” must obtain a license from the Division of Banks, the state agency tasked with regulating debt collection in the Commonwealth. Under the MDCPA,…

Mass. SJC Holds Omission of Post-Foreclosure Notice Did Not Void Foreclosure

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…

Mass. Call Count Cap Violated by Debt Collector Not Leaving Voicemail Message

A Massachusetts Superior Court recently held that reaching a debtor’s voicemail, but choosing to not leave a message, is a “communication” under the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 704(1)(f). A copy of the opinion in Watkins v. Glenn Associates, Inc. is available at: Link to Opinion. The plaintiff sued for injunctive relief and to recover damages from a creditor for alleged violations of the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 704 et seq., which states that it is an “unfair and deceptive act or practice for a creditor to…[i]nitiat[e] a communication with any debtor…

1st Cir. Holds ‘Fairly Conducted’ Sale of Collateral Not Necessarily ‘Commercially Reasonable’

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…

Missouri Federal Court Says ‘Benign’ Language on Envelope Does Not Violate FDCPA

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,…

FDCPA Lawsuit Tossed for Failure to Disclose Claim in Bankruptcy Petition

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…

8th Cir. Rejects FDCPA Claim Based on ‘No Personal Knowledge’ Affidavits

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…

1st Cir. Holds Failure to File Probate Claim Does Not Void Mortgage Under RI Law

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…

2nd Cir. Holds ID Theft Claim Under NY’s FCRA Not Preempted by Federal FCRA

The U.S. Court of Appeals for the Second Circuit recently held that identity theft claims under New York’s Fair Credit Reporting Act based on a bank’s alleged vicarious liability for identity theft supposedly perpetrated by its employees are not preempted by the federal Fair Credit Reporting Act (FCRA). However, to the extent that the claims could arguably be read to include the theory that the bank was liable because it furnished false information to consumer reporting agencies, the Court held that such claims are preempted under the FCRA because they plainly concern the bank’s legal responsibilities as a furnisher. A…

Illinois Court Holds New Mortgagee May Be Substituted After Foreclosure Sale, Indicates Borrower’s Counsel May Be Sanctioned

The Illinois Appellate Court, First District, recently held that a failure to file a motion to substitute plaintiff in a pending foreclosure proceeding prior to the judicial sale did not invalidate the sale. Also, considering the absence of any meaningful argument advanced on appeal, the Court further ordered counsel for defendant to show cause why he should not be sanctioned. A copy of the opinion is available at: Link to Opinion. The mortgagee filed a foreclosure action, and a judgment of foreclosure was ultimately entered. Thereafter, the mortgagee transferred servicing to a new mortgagee. The new mortgagee appeared at the…