Press "Enter" to skip to content

Posts published by “Coleman Braun”

Cole Braun is based in Maurice Wutscher's Chicago office, where he practices in the firm's Commercial Litigation, Consumer Litigation, and Insurance Recovery and Advisory groups. He has significant litigation experience in a number of state and federal jurisdictions in a variety of different types of litigation. Cole graduated magna cum laude from Florida State University College of Law, and earned the distinction to be elected to the Order of the Coif. He was awarded his Bachelor of the Arts degree from the University of Tennessee. For more information, see https://mauricewutscher.com/attorneys/coleman-braun/

Missouri Supreme Court Denies Arbitration Where Chosen Arbitrator No Longer Available

The Supreme Court of Missouri recently affirmed the denial of a lender’s motion to compel arbitration of a consumer’s putative class claims because the arbitration provision at issue designated the use of a specific arbitrator which was no longer available to handle creditor claims. A copy of the opinion in A-1 Premium Acceptance, Inc. v. Hunter is available at: Link to Opinion. Following the borrower’s default under a small personal loan, the lender brought an action in Missouri state court for collection of the debt. The borrower filed counterclaims against the lender for alleged violations of the Missouri consumer protection statute and requested…

7th Cir. Holds Pl’s Recovery of Less Than Pre-Trial Settlement Offers Does Not Justify Denying Atty Fees

The U.S. Court of Appeals for the Seventh Circuit recently held that a trial court abused its discretion in denying attorney’s fees to a prevailing plaintiff despite the plaintiff’s failure to recover an award which exceeded the pre-trial settlement offers. A copy of the opinion in Capps v. Drake is available at:  Link to Opinion. The plaintiff filed suit against multiple law enforcement officers pursuant to 42 U.S.C. § 1983 asserting a number of claims for unlawful search and use of excessive force. At various points during litigation, the parties engaged in settlement discussions with the plaintiff demanding $3.5 million…

Quick Primer on FHA Disparate Impact Claims

Following the ruling by the Supreme Court of the United States in Bank of America Corp. v. City of Miami, 137 S. Ct. 1296 (2017), one of the primary and developing issues in FHA disparate impact litigation is proximate cause. The issue of whether an alleged violation of the Fair Housing Act proximately caused any cognizable injury is currently being contested in multiple jurisdictions, and may likely develop in a fractured manner perhaps leading ultimately to another eventual determination by the Supreme Court. Background Briefly, the City of Miami ruling follows the groundwork set forth in Texas Dept. of Housing and Comty. Affairs…

Wisc. Supreme Court Holds New Foreclosure Not Barred By Dismissal With Prejudice of Prior Foreclosure

The Supreme Court of Wisconsin recently held that claim preclusion does not bar a mortgagee from proceeding with a foreclosure complaint despite a prior litigation which resulted in a dismissal with prejudice if the subsequent litigation is based upon a default and acceleration which occurred after the initial foreclosure proceeding. A copy of the opinion in Federal National Mortgage Association v. Thompson is available at:  Link to Opinion. Following a borrower’s default on his mortgage loan, the prior servicer of the loan initiated foreclosure proceedings based upon a default and acceleration alleged to have occurred in 2009.  The trial court in this initial foreclosure…

DC Cir. Upholds Dismissal of False Claims Act Action Arising Out of 2012 Nat’l Mortgage Settlement

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the dismissal of a federal False Claims Act lawsuit alleging a lender’s violation of the 2012 National Mortgage Settlement and violation of the Home Affordable Modification Program through the lender’s alleged false certifications of compliance. A link to the opinion in U.S. ex rel. Schneider et al. v. JPMorgan Chase Bank is available at:  Link to Opinion. The relator, an owner of a mortgage servicing company who purchased numerous loans from the lender, alleges to have discovered numerous violations of the 2012 National Mortgage Settlement based upon the lender’s handling of…

9th Cir. Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity ‘Amount in Controversy’

The U.S. Court of Appeals for the Ninth Circuit recently held that the trial court did not have subject matter jurisdiction based upon diversity over claims which sought a temporary stay of a foreclosure sale pending the review of a loan modification application because the amount of controversy did not exceed $75,000. In so ruling, the Court held that, for claims which merely seek a temporary stay of a foreclosure sale, the amount in controversy is not the value of the underlying loan. A copy of the opinion in Corral v. Select Portfolio Servicing, Inc. is available at:  Link to Opinion.…

8th Cir. Affirms Dismissal of Data Breach Class Action, But Not for Lack of Standing

The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a putative class action complaint alleging various causes of action relating to the cybertheft of personally identifiable information, based in part on the plaintiffs failure to adequately allege any damages caused by the data breach or how the defendant breached the terms of its agreement . A copy of the opinion in Kuhns v. Scottrade, Inc. is available at:  Link to Opinion. The defendant securities brokerage firm suffered an attack by hackers in which the hackers successfully accessed the firm’s customer database extracting personally identifiable information…

8th Cir. Holds Deficiency Claim Time Barred Despite Intervening Bankruptcy

The U.S. Court of Appeal for the Eighth Circuit recently affirmed a bankruptcy court’s rejection of a proof of claim filed by a creditor where the claim was based upon a debt which was time barred by the creditor’s failure to comply with the applicable state law deadline for pursuing a deficiency judgment following a non-judicial foreclosure. A copy of the opinion in Melikian Enterprises, LLLP v. McCormick is available at:  Link to Opinion. The underlying debt at issue arose from a commercial loan from the creditor to a company owned by the debtors which was secured by a mortgage against…

Illinois App. Court (3rd Dist) Holds Third Refiled Foreclosure Not Barred

The Appellate Court of Illinois, Third District, recently rejected a mortgagor’s argument that the Illinois single refiling rule barred a third attempt at foreclosure where the intervening foreclosure complaint was premised upon an alleged default under a loan modification agreement. A copy of the opinion in Wells Fargo Bank, N.A. v. Norris is available at:  Link to Opinion. The convoluted procedural and factual history for the mortgage loan at issue in this matter can be boiled down to the following: The defendant mortgagor (who was not a signatory to the promissory note) and his ex-spouse defaulted under the terms of…

6th Cir. Rejects Municipality’s ‘Public Nuisance’ Claims Against Mortgage Lender

The U.S. Court of Appeal for the Sixth Circuit recently affirmed the dismissal of a municipality’s public nuisance claims against two different mortgage lenders for allegedly maintaining a policy of violating local and state building codes if the costs outweighed the value added to the eventual resale of foreclosed property. A copy of the opinion in City of Cincinnati v. Deutsche Bank National Trust Company is available at:  Link to Opinion. The municipality brought multiple claims against the mortgage lender defendants alleging various claims concerning the maintenance and condition of REO properties.  Eventually, through multiple amended pleadings, stipulations and settlements, only one…

Illinois App. Court Holds Reverse Mortgage Borrower Had Mortgageable Interest Following Intestate Death of His Spouse

The Appellate Court of Illinois, First District, recently ruled that the mortgagee of a reverse mortgage loan held an interest in the secured property to the extent that the borrower inherited an interest in the property following the non-borrower’s spouse’s intestate death. Accordingly, the Court reversed the trial court’s dismissal of the reverse mortgagee’s foreclosure complaint and remanded the matter for further determination of the borrower’s inherited interest in the subject property. A copy of the opinion in Reverse Mortgage Solutions, Inc. v. Rahman is available at:  Link to Opinion. The borrower and his spouse purchased the subject property as…

Illinois App. Court (1st Dist) Rejects Borrowers’ Effort to Undo Foreclosure Deficiency Judgment

The Appellate Court of Illinois, First District, recently held that the provisions of the Illinois mortgage foreclosure statute barred the borrowers from filing a post-judgment petition to vacate the entry of a personal deficiency judgment in a foreclosure action, because the borrowers’ petition was not based upon the lack of personal jurisdiction and the borrowers’ petition did not seek relief in the form of claiming an interest in the proceeds of the sale. A copy of the opinion in BMO Harris Bank National Association v. LaRosa is available at:  Link to Opinion. The borrowers defaulted on their mortgage loan resulting…