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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/

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…

8th Cir. Allows External Evidence to Oppose Remand Under CAFA’s ‘Local Controversy’ Exception

The U.S. Court of Appeals for the Eighth Circuit recently affirmed a trial court’s order denying a motion to remand a putative class action to Arkansas state court based on the federal Class Action Fairness Act’s (CAFA) “local controversy” exception to jurisdiction because the consumer plaintiffs failed to meet their burden to demonstrate that they sought significant relief from a defendant that was a citizen of the state. In so ruling, the Eighth Circuit held that the trial court did not err when it considered extrinsic evidence in the form of affidavits from the defendant company because a court “may…

7th Cir. Holds LLC Act Did Not Shield Owner from Liability for Fraudulent Loan Closings

The U.S. Court of Appeals for the Seventh Circuit recently ruled in favor of a bank suing to recover for a fraudulent loan scheme, finding that the Illinois Limited Liability Company Act did not shield the closing agent company’s owner from liability in a fraud scheme because he was substantially involved in the fraud and the scheme would have failed without his individual participation. A copy of the opinion in Fifth Third Mortgage Company v. Kaufman is available at:  Link to Opinion. Straw buyers submitted fraudulent loan applications to a bank. The participants in the scheme used an attorney to…

9th Cir. Holds Supporting Evidence Not Required for CAFA Removal

The U.S. Court of Appeals for the Ninth Circuit recently reversed a trial court order remanding a case to state court for lack of jurisdiction under the federal Class Action Fairness Act (CAFA) because the jurisdictional allegations pleaded provided a short and plain statement of jurisdiction. The Court held this was sufficient, even without supporting evidence, to confer jurisdiction. A copy of the opinion in Ehrman v. Cox Communications, Inc. is available at:  Link to Opinion. A plaintiff filed a class action complaint against a defendant in California state court claiming the defendant “had engaged in unlawful business practices related…

7th Cir. Holds Borrower’s Fraud Claims Against Bank Not Barred by Res Judicata

The U.S. Court of Appeals for the Seventh Circuit recently reversed a trial court order determining that res judicata barred a borrower’s fraud claims against a bank. In so ruling, the Court held that res judicata should not apply in this case because in the first action the borrower was a defendant and raised the fraud claim before the bank voluntarily dismissed the case when the borrower learned of the fraud claims and threatened to allege them against the bank. A copy of the opinion in Doherty v. Federal Deposit Insurance Corporation is available at:  Link to Opinion. A borrower…