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Posts published by “Eric Tsai”

9th Cir. Holds Attorneys’ Fees May Be Included in CAFA ‘Amount in Controversy’

The U.S. Court of Appeals for the Ninth Circuit recently vacated an order sua sponte remanding to state court a putative class action removed under the federal Class Action Fairness Act. In so ruling, the Ninth Circuit held: When a notice of removal plausibly alleges a basis for federal court jurisdiction, a federal trial court may not remand the case back to state court without giving the defendants an opportunity to demonstrate that the jurisdictional requirements were satisfied; The amount in controversy may be based on reasonable assumptions tied to the allegations in the complaint; When a statute or contract…

6th Cir. Holds FCRA Preempts State Common Law Claims, Joins 2nd and 7th Cirs.

The U.S. Court of Appeals for the Sixth Circuit recently affirmed a judgment in favor of the furnisher of credit information in an action filed under the federal Fair Credit Reporting Act and other claims under state common law. In so ruling, the Sixth Circuit held that the FCRA’s preemption provisions apply to state common law claims concerning a furnisher’s reporting obligations, joining similar rulings by the Seventh and Second Circuits. A copy of the opinion in Scott v. First Southern National Bank is available at:  Link to Opinion. The plaintiffs owned several investment properties and obtained a $300,000 commercial…

9th Cir. Holds Ex-Husband Had No Right to Cancel Under TILA

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court’s summary judgment ruling in favor of the financial services defendants in an action to rescind the mortgage under the federal Truth in Lending Act. In so ruling, the Ninth Circuit held that the plaintiff consumer did not have a right of rescission under TILA, 15 U.S.C. § 1601 et seq., because he previously quitclaimed his interest in the property to his ex-wife, and his new loan to acquire the property from his ex-wife was a “residential mortgage transaction.” A copy of the opinion in Barnes v.…

3rd Cir. Vacates Cy Pres Class Settlement Citing Trial Court’s Failure to Scrutinize Scope of Release

The U.S. Court of Appeals for the Third Circuit recently vacated an order approving the settlement of a class action certified under Rule 23(b)(2), where the only benefit to the class was the defendant’s payment of a cy pres award to organizations that promoted data privacy. In so ruling, the Third Circuit held that the trial court did not adequately scrutinize the settlement agreement’s broad release of claims for money damages, and the parties’ designation of cy pres recipients, as required by Rule 23(e). A copy of the opinion in In re Google Inc. Cookie Placement Consumer Privacy Litigation is…

Calif. App. Court (2nd Dist) Upholds Denial of Class Cert Based on Survey and Statistical Sampling

The Court of Appeal for the Second District of California affirmed an order denying class certification in a wage and hour litigation, holding that the plaintiffs’ proposed anonymous, double-blind survey and statistical sampling failed to address individualized issues for liability and damages. In so ruling, the Appellate Court held that the plaintiffs’ trial plan was unmanageable and unfair because, among other things, the proposed survey deprived the defendants of the ability to cross-examine the witnesses and to assert defenses.  A copy of the opinion in McCleery v. Allstate Insurance Company is available at:  Link to Opinion. In this putative class…

2nd Cir. Holds FDCPA’s SOL Starts When Plaintiff is ‘Injured’

The U.S. Court of Appeals for the Second Circuit recently affirmed the dismissal of a claim under the federal Fair Debt Collection Practices Act holding that an FDCPA violation occurs, for the purposes of the FDCPA’s one year statute of limitations, when an individual is injured by the alleged unlawful conduct. In so ruling, the Second Circuit clarified that in Benzemann v. Citibank N.A., 806 F.3d 98 (2d Cir. 2015), it did not intend to expand the FDCPA’s statute of limitations by requiring individuals to be injured and receive “notice of the FDCPA violation.” A copy of the opinion in Benzemann…

9th Cir. Holds TCPA’s Federal Debt-Collection Exception Unconstitutional, Joins 4th Cir.

The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a putative class action under the federal Telephone Consumer Protection Act finding that the plaintiff adequately alleged that the defendant placed calls using an automated telephone dialing system. In so ruling, the Ninth Circuit joined with a similar ruling by the Fourth Circuit, and held that the TCPA’s exception for calls “made solely to collect a debt owed to or guaranteed by the United States” was incompatible with the First Amendment and severed the exception as an unconstitutional restriction on speech. A copy of the opinion in…

Calif. App. Court (1st Dist) Holds Rosenthal Act Allows Class Actions, Cure Provisions to Apply to Debtor Notices

In an unreported opinion, the Court of Appeal for the First District of California recently held that a debt collector that violated the minimum type-size requirement for collection letters under Cal. Civil Code § 1812.701(b) may utilize the procedure for curing violations under California’s Rosenthal Fair Debt Collection Practices Act to correct its violations. However, the Appellate Court reversed the dismissal because the trial court should have allowed the consumer to amend the complaint or locate a suitable class representative after granting summary judgment in favor of the debt collector on her individual claim. In so ruling, the Court also…

6th Cir. Rejects FCRA ‘Credit File Disclosure’ Claim for Lack of Spokeo Standing

The U.S. Court of Appeals for the Sixth Circuit recently held that a plaintiff lacked Article III standing to sue a consumer reporting agency under the federal Fair Credit Reporting Act (FCRA) for allegedly failing to disclose all information in his file. In so ruling, the Sixth Circuit held that the alleged deprivation of information had no consequences for the consumer and imposed no real risk of harm to establish injury in fact. A copy of the opinion in Huff v. TeleCheck Services, Inc. is available at:  Link to Opinion. The consumer reporting agency (CRA) advises merchants on whether it should…

Calif. App. Court (1st Dist) Rejects Servicer’s Attempt to Condition Reinstatement on Payment of Deferred Amounts

The Court of Appeal of the State of California, First Appellate District, recently held that California Civil Code § 2924c permits a borrower to reinstate a modified home mortgage loan by paying only the past due modified payments and associated fees and charges, and that a servicer cannot lawfully condition reinstatement of a loan on the payment of amounts that were deferred in the loan modification. In so ruling, the Appellate Court rejected the servicer’s argument that the loan modification agreement allowed it to nullify the modification upon the borrower’s default and to require payment of the earlier default according…

Calif. Supreme Court Allows Creditor Holding Senior and Junior Liens to Seek Deficiency on Sold-Out Second Lien

The Supreme Court of California recently held that the anti-deficiency statute in California Code of Civil Procedure § 580d did not bar a creditor holding two deeds of trust on the same property from recovering a deficiency judgment on the junior lien extinguished by a non-judicial foreclosure sale on the senior lien. A copy of the opinion in Black Sky Capital, LLC v. Cobb is available at:  Link to Opinion. The bank extended two loans to the borrowers that were secured by deeds of trust on a commercial property.  The bank sold both loans to an investor that subsequently foreclosed on the…

Calif. App. Court (5th Dist) Holds Borrower Entitled to Atty Fees for Successful TRO

The Court of Appeal for the Fifth District of California recently held that a court may award attorneys’ fees pursuant to Civil Code § 2924.12(h) when a borrower obtains a temporary restraining order to stop a non-judicial foreclosure sale. A copy of the opinion in Hardie v. Nationstar Mortgage LLC is available at:  Link to Opinion. The borrowers filed an ex parte application for a temporary restraining order (“TRO”) to enjoin the trustee’s sale of their home.  The application contained a request for attorneys’ fees and costs. The trial court granted the TRO and set a hearing to show cause for a…