The U.S. Court of Appeals for the Seventh Circuit recently affirmed in part and reversed in part a trial court’s judgment against a debtor who filed an adversary proceeding alleging that a creditor and its counsel violated the bankruptcy discharge by trying to collect a discharged debt, holding that the attorney could not be held in contempt because he lacked knowledge of the discharge, but the creditor could be held liable for the actions of its counsel under agency law. A copy of the opinion in Jacqueline M. Sterling v. Southlake Nautilus Health is available at: Link to Opinion. The plaintiff…
Posts published by “Hector E. Lora”
Hector E. Lora manages the firm’s Florida office and has substantial experience in all phases of complex commercial litigation, including bench and jury trials as well as appellate practice. Hector represents lenders, servicers, debt collectors and debt buyers in complex mortgage foreclosure actions, quiet title actions, federal TILA, RESPA, TCPA, and FDCPA actions and Florida FCCPA actions brought by borrowers or debtors. He also represents creditors in bankruptcy litigation, purchasers of accounts receivable or factoring companies that provide revenue-based financing to small and mid-sized businesses in collection actions, and landlords in commercial and residential evictions. Hector’s broad litigation experience includes over a decade of defending civil enforcement actions filed by the Federal Trade Commission as well as real estate contract disputes and partition actions, contested mortgage foreclosure and condominium lien foreclosure actions and the foreclosure of UCC Article 9 security interests. Hector also has advised a variety of types of businesses regarding their compliance with applicable federal and state consumer protection laws, including the Federal Trade Commission Act, the Telephone Consumer Protection Act (TCPA), the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telemarketing Sales Rule, the Controlling the Assault of Nonsolicited Pornography and Marketing Act of 2003, and Florida laws governing telephone solicitation and communication. Hector received his Juris Doctor from the Georgetown University Law Center, and his undergraduate degree with honors from the University of Florida. For more information, see https://mauricewutscher.com/attorneys/hector-e-lora/
The U.S. Court of Appeals for the Eleventh Circuit recently reversed a trial court’s certification of an injunction class, holding that the injunctive relief sought by the class was improper because the true relief sought was really damages. A copy of the opinion in AA Suncoast Chiropractic Clinic, P.A. v. Progressive American Insurance Co. is available at: Link to Opinion. In 2012, Florida’s law requiring automobile insurance policies to provide personal injury protection (“PIP”) benefits up to $10,000 was amended so that “not every injured motorist will be eligible to access all $10,000 in benefits.” Coverage is capped at $2,500…
The U.S. Court of Appeals for the Third Circuit recently held that a debt collector violated the federal Fair Debt Collection Practices Act (FDCPA) when the envelope it sent to a debtor displayed an unencrypted code that revealed the debtor’s account number when scanned. A copy of the opinion in DiNaples v. MRS BPO, LLC is available at: Link to Opinion. A consumer defaulted on her credit card and the bank that issued it assigned the account to a debt collection agency. The debt collector sent the consumer “a collection letter as a pressure-sealed envelope that had a QR [or…
In a class action arising from a data breach at a retailer that resulted in the theft of millions of consumers’ credit card information, the U.S Court of Appeals for the Eleventh Circuit recently held that the fee arrangement included as part of the settlement was a fee-shifting contract and the constructive common fund doctrine did not apply, reversing as an abuse of discretion the trial court’s use of a fee multiplier in a fee-shifting case. A copy of the opinion in Northeastern Engineers Federal Credit Union, et al. v. Home Depot, Inc., et al. is available at: Link to Opinion.…
Distinguishing contrary rulings from the Eighth and Eleventh Circuits, the U.S. Court of Appeals for the Seventh Circuit recently held that a debt collector’s percentage fee was recoverable under the language of a contract that required the consumer to pay “any costs (including reasonable attorney’s fees) incurred by [the creditor] in attempting to collect amounts due.” A copy of the opinion in Bernal v. NRA Group, LLC is available at: Link to Opinion. A consumer bought a monthly pass to Six Flags amusement parks. The contract stated that if the buyer failed to make the required monthly payments, he would…
The U.S. Court of Appeals for the First Circuit recently affirmed a mortgage foreclosure judgment, holding that the district court properly admitted into evidence a computer printout from the loan servicer containing incorporated information from prior loan servicers. A copy of the opinion in U.S. Bank Trust, N.A. v. Jones is available at: Link to Opinion. The plaintiff borrower defaulted on her mortgage loan and the bank filed a diversity action in the U.S. District Court for the District of Maine. “At trial, [the bank] sought to establish the total amount owed on the loan account by introducing a computer…
In an agricultural lien contest between three creditors of a bankrupt commercial farm, the U.S. Court of Appeals for the Fifth Circuit recently affirmed the trial court’s award of summary judgment in favor of a bank that provided debtor-in-possession financing, holding that the locale of the farm products determined the applicable lien law and that bank’s lien was superior to the liens of two nurseries that supplied trees and shrubs because the latter were either unperfected or unenforceable. A copy of the opinion in Fishback Nursery, Inc. v. PNC Bank is available at: Link to Opinion. The debtor, “a wholesale…
The U.S. Court of Appeals for the Ninth Circuit recently reversed a summary judgment award in favor of a student loan buyer, holding that triable issues of fact existed as to whether it had actual knowledge of or willfully ignored and thereby ratified the Telephone Consumer Protection Act (TCPA) violations of the debt collectors contracted by the owner’s servicer. A copy of the opinion in Henderson v. United Student Aid Funds is available at: Link to Opinion. The plaintiff received student loans through a federal program under which the owner of the loans “guarantees student loans made by private lenders and…
The U.S. Court of Appeals for the Eighth Circuit recently vacated a trial court’s order approving a class action settlement agreement because the trial court did not first determine whether the FCRA class representative had standing. In so ruling, the Eighth Circuit held that a court’s approval of a settlement was a judgment, which is invalid unless the court has Article III standing and subject matter jurisdiction. A copy of the opinion in Schumacher v. SC Data Center, Inc. is available at: Link to Opinion. The plaintiff filed a putative class action in Missouri state court alleging the defendant violated the…
In a case of first impression, the U.S. Court of Appeals for the Fifth Circuit recently held that a lender was not vicariously liable for a loan servicer’s alleged violation of the federal Real Estate Settlement Procedures Act holding that (a) the borrower failed to plead an agency relationship, “an essential element of a vicarious liability claim; and (b) even if an agency relationship existed, the lender could not be vicariously liable as a matter of law for the servicer’s alleged failure to comply with RESPA. A copy of the opinion in Christiana Trust v. Riddle is available at: Link to Opinion. The borrower took…
In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that a debtor who successfully challenges — as opposed to a debtor who defends — an award of attorney’s fees and costs for violations of the automatic stay under § 362(k) of the Bankruptcy Code is entitled to an award of appellate fees and costs. In so ruling, the Court reversed the trial court’s order denying the debtor’s motion for appellate attorney’s fees and costs, and remanded the matter to the trial court with instructions to remand to the bankruptcy court to calculate…
The U.S. Court of Appeals for the Ninth Circuit recently held that Washington’s six-year statute of limitations governing contracts instead of the Truth in Lending Act’s one-year statute of limitations applies to claims to enforce rescission under TILA, after a notice of right to cancel was timely submitted. The Ninth Circuit also held that the trial court should have given the borrowers leave to amend the complaint because the borrower’s rescission claim under TILA was not time barred, and amending the complaint would not be futile. A copy of the opinion in Hoang v. Bank of America is available at: Link…