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Posts published by “Ernest Wagner”

Ernest Wagner practices in Maurice Wutscher's Commercial Litigation and Consumer Litigation groups, and leads the firm’s Insurance Recovery and Advisory group. Based in Chicago, he also supports the firm’s litigation matters in its Florida office. Ernest has substantial experience in various types of commercial and insurance recovery litigation. He has conducted more than 35 jury trials, and more than 150 arbitrations for plaintiffs and defendants. He has also successfully represented clients in numerous appeals, in various jurisdictions. Ernest earned his Juris Doctor from Emory University School of Law in Atlanta, Georgia, and his Bachelor of the Arts from the University of Iowa. For more information, see https://mauricewutscher.com/attorneys/ernest-p-wagner/

9th Cir. Holds Single Website Visit Not Enough To Activate Change in Terms

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court’s order compelling arbitration, holding that a single website visit by a consumer long after she entered into a contract with a credit reporting agency (CRA) that contained a change-of-terms provision did not bind the parties to changed terms in the updated contract, including exempting some claims from binding arbitration, because the consumer did not allege that she was aware of the changed terms as required to assent to the new terms.  

11th Cir. Holds Debtor Cannot Use State Law to Revive Time-Barred FDCPA Claim

The U.S. Court of Appeals for the Eleventh Circuit, in an unpublished opinion, affirmed a trial court order dismissing a consumer’s lawsuit holding that Georgia’s renewal statute, O.C.G.A. § 9-2- 61, did not save a claim that is otherwise time-barred under the federal Fair Debt Collection Practices Act (FDCPA).

Illinois App. Court (1st Dist) Holds Description of Property Improvements in Notice of Foreclosure Sale Was Sufficient

The Appellate Court of Illinois, First District, recently affirmed a trial court order confirming the sale of a foreclosed property, holding that a public notice of sale stating that the property contained a “single family residence” complied with the Illinois Foreclosure Law’s requirement to sufficiently describe “improvements on the real estate.” 

5th Cir. Holds Overpayment of Grant Money Qualified as ‘Debt’ Under FDCPA

The U.S. Court of Appeals for the Fifth Circuit recently held that a consumer’s contractual obligation to repay an overpayment in government grant money received by the debtor qualified as a “debt” under the federal Fair Debt Collection Practices Act (FDCPA) because it involved a consensual promise to repay in exchange for receipt of an item of value, and the subject of the transaction was primarily for personal, family, or household purposes.

7th Cir. Holds No FDCPA Violation When Amount of Debt Was Disputed, and Letters Were Sent to Debtors’ Counsel

The U.S. Court of Appeals for the Seventh Circuit recently held that a debt collection verification letter, which sought to collect interest on a credit card debt for months after the time when the bank that issued the card did not send monthly statements, was not "false" and would not have misled their attorney in violation of the federal Fair Debt Collection Practices Act (FDCPA).

DC Cir. Holds FDCPA Plaintiff Lacked Standing Under Spokeo

The U.S. Court of Appeals for the District of Columbia Circuit recently vacated a summary judgment order against a debtor on her claims against a debt owner and its debt collector for alleged violations of the federal Fair Debt Collection Practices Act because the debtor did not suffer a concrete injury-in-fact traceable to the alleged statutory violations and therefore lacked the required Article III standing.

Illinois App. Court (1st Dist.) Holds TILA ‘Failure to Rescind After Notice’ Claims Subject to 1-Yr Statute of Limitations

The Appellate Court of Illinois, First District, recently affirmed a trial court order dismissing a foreclosure counterclaim by two borrowers seeking rescission under the federal Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., holding that section 1640(e)’s one-year statute of limitation for legal damages applied to bar the borrower’s section 1635 equitable claim, when the borrowers demanded rescission within three years of closing but did not file suit within one year after the lender failed to respond.

5th Cir. Reverses Sanctions Against Consumer’s Counsel for Failure to Promptly Settle

The U.S. Court of Appeals for the Fifth Circuit recently reversed a trial court’s order sanctioning a consumer’s counsel for failure to promptly settle a lawsuit, but affirmed the trial court's order denying a motion to recuse because the trial court was not biased against the consumer.

5th Cir. Affirms Order Compelling Arbitration of Age Discrimination Claim

The U.S. Court of Appeals for the Fifth Circuit recently affirmed a trial court’s order compelling the arbitration of an employee’s federal age discrimination claim against a financial institution employer, holding that the trial court correctly found that there was a meeting of the minds between the employee and the employer as required to form the arbitration agreement.

11th Cir. Reverses Denial of Class Cert in Challenge to Post-Discharge Mortgage Statements

In a putative class action of borrowers who received mortgage statements after a bankruptcy discharge, the U.S. Court of Appeals for the Eleventh Circuit recently reversed a trial court order denying certification for failure to establish predominance. In so ruling, the Eleventh Circuit held that a mortgage servicer’s affirmative defense that it is not liable under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.55 et seq., because the only remedy for violating a discharge injunction is under the Bankruptcy Code requires no…

5th Cir. Holds Bankruptcy Discharge Violations Not Always Subject to Arbitration

The U.S. Court of Appeals for the Fifth Circuit recently affirmed a bankruptcy court order denying a bank’s motion to compel arbitration, holding that when a debtor seeks to enforce a discharge injunction, a bankruptcy court may decline to compel arbitration because it implicates a bankruptcy court’s ability to enforce its own orders. A copy of the opinion in Henry v. Educational Financial Service is available at:  Link to Opinion. A borrower took out a student loan and subsequently filed for Chapter 13 bankruptcy. The bankruptcy court confirmed the plan.  The borrower made the payments to her creditors, including her…