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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/

8th Cir. Reverses Dismissal of Uniform Fraudulent Transfer Act Claim for Lack of Standing

The U.S. Court of Appeals for the Eighth Circuit recently reversed a trial court order dismissing a plaintiff’s complaint for lack of standing, holding that the plaintiff properly alleged an injury in fact because it claimed an economic harm to it that was concrete and personal to the plaintiff. In so ruling, the Eighth Circuit found that standing existed even if the claim may lack merit under the Missouri Uniform Fraudulent Transfer Act, because Article III standing is distinct from the merits of a state law claim. A copy of the opinion in Enterprise Financial Group Inc. v. Podhorn is…

7th Cir. Holds Plaintiff Lacked Standing in ADA ‘Website Accessibility’ Case Against Credit Union

The U.S. Court of Appeals for the Seventh Circuit recently held that a blind plaintiff lacked standing to sue under the Americans with Disabilities Act (ADA) for alleged accessibility problems with a credit union’s website because he could not establish an injury in fact as a non-member. A copy of the opinion in Carello v. Aurora Policemen Credit Union is available at:  Link to Opinion. The plaintiff, who is blind, sued a credit union, alleging that the credit union’s website violated his rights under the ADA because it was not accessible to blind people. Specifically, the plaintiff claimed that the credit…

2nd Cir. Holds Post-Filing Amendment Can Divest Court of CAFA Jurisdiction

The U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a case for lack of jurisdiction because when the plaintiffs withdrew their class action allegations in an amended complaint, the withdrawal divested the court of jurisdiction under the federal Class Action Fairness Act (CAFA). A copy of the decision in Gale v. Chicago Title Insurance Company is available at:  Link to Opinion. The plaintiff, an attorney on behalf of himself and a putative class, sued several title insurance company defendants alleging that they had tortiously interfered with business opportunities and violated Connecticut law because under Conn. Gen.…

11th Cir. Holds Moving to Reset Foreclosure Sale During Loss Mit Did Not Violate RESPA or FDCPA

The U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of a borrower’s claim, holding that a mortgage servicer’s motion to reschedule a previously set foreclosure sale after it approved the borrower for a trial loan modification plan did not violate the federal Real Estate Settlement Procedures Act because the motion to reschedule did not move for an order of sale. A copy of the decision in Landau v. RoundPoint Mortgage Servicing Corp. is available at:  Link to Opinion. A borrower defaulted on her mortgage loan and her lender filed a foreclosure action.  The lender obtained final summary judgment in…

7th Cir. Creates Split on Spokeo Standing, Rules in Favor of Defendant in FDCPA Disclosure Case

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s ruling that a debtor lacked Article III standing to sue a debt collector for failing to notify her in its debt validation letter that to trigger the federal Fair Debt Collection Practices Act’s protections she had to communicate a dispute in writing because the only harm she suffered was receiving the incomplete letter. In so ruling, the Seventh Circuit created a circuit split on this issue as in Macy v. GC Services Limited Partnership, 897 F.3d 747 (6th Cir. 2018), where the Sixth Circuit held under…

7th Cir. Holds No FDCPA Violation for Naming Current Creditor as ‘Original Creditor’

The U.S. Court of Appeals for the Seventh Circuit recently affirmed two trial court rulings in favor of a debt collector and against the debtors holding that correspondence which identified “the name of the creditor to whom the debt is owed” as the original creditor instead of the current creditor did not violate the federal Fair Debt Collection Practices Act because it accurately disclosed the only creditor to whom the debtors owed their debt sufficient for the unsophisticated consumer to understand. A copy of the opinion in Smith v. Simm Associates, Inc. is available at:  Link to Opinion. In both cases, a…

7th Cir. Rejects Plaintiff’s Effort to Run Up Attorney’s Fees After Rejecting Reasonable Offer

The U.S. Court of Appeals for the Seventh Circuit recently held that the trial court did not abuse its discretion when it reduced the plaintiff’s counsel’s $187,410 fee claim to $10,875 after the debtor recovered only a $1,000 statutory damages award on his federal Fair Debt Collection Practices Act claim at trial and the debt collector had issued a Rule 68 offer of judgment early in the case that exceeded the amount the debtor recovered. A copy of the opinion in Paz v. Portfolio Recovery Associates, LLC is available at:  Link to Opinion. After a debt collector purchased a debtor’s…

Illinois App. Court (5th Dist) Upholds Dismissal of FDCPA and State Law Claims That 4-Yr UCC SOL Applied to Credit Card Purchases

The Appellate Court of Illinois Fifth District affirmed the dismissal of a borrower’s alleged putative class action alleging that the successor to a credit card issuer violated various state and federal laws when it filed suit to collect the debt past the four-year statute of limitations for the sale of goods under the Illinois version of the UCC (810 ILCS 5/2-725). In so ruling, the Appellate Court held that the issuer properly filed suit within the five-year statute of limitations that applies to credit card agreements under 735 ILCS 5/13-205.  In addition, the Appellate Court ruled that advancing money to pay…

8th Cir. Rejects Guarantor’s ‘Fraud in the Factum’ Defense

The U.S. Court of Appeals for the Eighth Circuit affirmed a trial court’s judgment against a guarantor holding that a guaranty signed upon the advice of his financial advisor was binding even if he did not know the amount of the debt because he understood that he was signing a guarantee and the guarantor’s fraud in the factum defense required him to be deceived as to the type of document signed. A copy of the opinion in Radiance Capital Receivables Eighteen, LLC v. Concannon is available at:  Link to Opinion. The plaintiff signed a general guaranty for the debts of a…

5th Cir. Holds Providing Reason for Loss Mit Denial Once Is Enough Under RESPA

The U.S. Court of Appeals for the Fifth Circuit recently held that a mortgage servicer only had to comply with the federal Real Estate Settlement Procedure Act (RESPA) requirements regarding loss mitigation applications once when the servicer had already provided the same reasons for the denial of a loan modification in response to a prior loss mitigation application. A copy of the opinion in Germain v. US Bank National Association is available at:  Link to Opinion. In 2005, a borrower executed a deed of trust in favor of a lender to refinance his home. In 2012, the servicer began servicing the…

5th Cir. Holds No ‘Detrimental Reliance’ Exception to Unilateral Withdrawal of Acceleration Notice

The U.S. Court of Appeals for the Fifth Circuit recently held that Texas law contains no detrimental reliance exception to a lender’s unilateral right to withdraw an acceleration notice. A copy of the opinion in Jatera Corporation v. U.S. Bank National Association is available at:  Link to Opinion. A borrower defaulted on a Texas home equity fixed adjustable rate note secured by a Texas home equity security instrument. In 2010, the mortgagee through its then loan servicer sent the borrower notice of its intent to accelerate the note and demanded full payment of the debt. The mortgagee filed suit and…

7th Cir. Holds Erroneously Recorded Satisfaction May Be Unilaterally Cancelled and Withdrawn

The U.S. Court of Appeals for the Seventh Circuit recently held that a mortgagee could unilaterally cancel an erroneously recorded satisfaction of the loan where the borrower had not yet detrimentally relied on the erroneous satisfaction. A copy of the opinion in Trinity 83 Development, LLC v. ColFin Midwest Funding, LLC  is available at:  Link to Opinion. A company took out a loan from a bank secured by a mortgage.  The bank sold the loan to a debt buyer.  The debt buyer used a debt collector to collect payments.  The debt collector inadvertently recorded a satisfaction of the debt releasing the mortgage before the…