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Posts published by “Jeffrey Karek”

4th Cir. Holds SCRA Does Not Apply to Mortgage Loan Incurred During Service, Even If Borrower Re-Enlists

The U.S. Court of Appeals for the Fourth Circuit recently held that the federal Servicemembers Civil Relief Act (SCRA) does not apply to a mortgage loan obligation incurred while a borrower is a member of the military, even where he subsequently leaves and then later re-enlists in the military prior to a foreclosure sale. A copy of the opinion in Sibert v. Wells Fargo Bank, NA is available at:  Link to Opinion. The borrower obtained a mortgage loan to purchase his home from the lender while he was serving in the U.S. Navy.  After his discharge from the Navy, the borrower…

2nd Cir. Rejects FACTA ‘Credit Card Expiration Date’ Claim, Citing Spokeo and Joining with 7th Cir.

The U.S. Court of Appeals for the Second Circuit recently joined the Seventh Circuit in holding that printing a credit card expiration date on an otherwise properly redacted receipt does not constitute an injury in fact sufficient to establish Article III standing to bring a claim alleging a bare procedural violation of the federal Fair and Accurate Credit Transactions Act of 2003 (FACTA). Accordingly, the Second Circuit affirmed the ruling of the trial court dismissing the plaintiff’s amended complaint. A copy of the opinion in Crupar-Weinmann v. Paris Baguette America, Inc. is available at:  Link to Opinion. The plaintiff brought…

10th Cir. Rejects Action to Void Foreclosure Sale Based on Prior TILA Cancellation Demand

The U.S. Court of Appeals for the Tenth Circuit recently held that a borrowers’ federal court claim attempting to void a foreclosure sale based on a prior demand to cancel the loan under the federal Truth in Lending Act (TILA) was barred by claim preclusion for failure to raise the issue in a prior state court action. A copy of the opinion in Pohl v. US Bank is available at:  Link to Opinion. The plaintiff borrowers refinanced the loan on their home in May 2007.  In 2009, the borrowers defaulted on their loan.  In March 2010, believing that their lender had…

8th Cir. Holds Removal Proper Where Absence of CAFA Jurisdiction Not ‘Established to a Legal Certainty’

The U.S. Court of Appeals for the Eighth Circuit recently held that the requirements for the federal Class Action Fairness Act (CAFA) were met and the matter was properly removed to federal court, where the plaintiffs could not “establish to a legal certainty” that their claims were for less than the requisite amount. A copy of the opinion in Dammann v. Progressive Direct Insurance Company is available at:  Link to Opinion. The plaintiff insureds purchased automobile insurance from the insurer. The insureds’ policies required deductible payments of $100 for medical expense payments and $200 for economic loss payments.  Both policies provided…

4th Cir. Holds Entire Arbitration Agreement Unenforceable Due to Faulty Choice of Law Provisions

The U.S. Court of Appeals for the Fourth Circuit held that a creditor’s arbitration agreement contained unenforceable choice of law provisions rendering the entire agreement unenforceable. Accordingly, the Fourth Circuit affirmed the trial court’s order denying the creditor’s motion to compel arbitration. A copy of the opinion in James Dillon v. BMO Harris Bank, N.A. is available at:  Link to Opinion. The borrower applied for and received a “payday loan” through the lender’s website.  The lender was wholly owned by a Native American tribe. To complete the loan transaction, the borrower was required to sign an agreement containing a choice…

Illinois App. Court (1st Dist) Holds Paper Clip is Enough to ‘Affix’ Allonge to Note Under UCC

The Appellate Court of Illinois, First District, recently held that an allonge was “affixed” to a note for purposes of the Illinois Uniform Commercial Code (UCC) when it was attached via paper clip. A copy of the opinion in Olive Portfolio Alpha, LLC v. 116 West Hubbard Street, LLC is available at:  Link to Opinion. The plaintiff note owner (“assignee”) filed a mortgage foreclosure action against the defendant borrower seeking the foreclosure of a commercial property. The borrower filed a motion to dismiss for alleged lack of standing.  The motion was denied in part and granted in part “as to…

7th Cir. Holds Debt Collectors Did Not Violate FDCPA by Demanding Prejudgment Interest Under Wisconsin Law

The U.S. Court of Appeals for the Seventh Circuit recently held that two debt collectors were entitled to demand payment for both principal amounts owed and interest under Wisconsin law. Therefore, the Court held, the debt collectors’ dunning letters demanding the principal sums owed and 5 percent per annum interest did not violate the federal Fair Debt Collection Practices Act, even where the demand was made prejudgment. A copy of the opinion in Aker v. Collection Associates, LTD. is available at:  Link to Opinion. After the consumer plaintiffs failed to pay their bill for medical services received, their providers referred…

Illinois App. Court (1st Dist) Holds Post-Foreclosure COA Dues Need Not Be Paid Monthly to Extinguish Pre-Foreclosure COA Lien

Reversing a trial court’s ruling in favor of a condominium association and against a mortgagee, the Appellate Court of Illinois, First District, recently held that the Illinois Condominium Property Act’s (“Condo Act”) provision creating a mechanism to extinguish liens for pre-foreclosure common expense assessments does not create a timing requirement as to when common expense assessments must be paid post-foreclosure to confirm extinguishment of the pre-foreclosure lien. A copy of the opinion in 5510 Sheridan Road Condominium Association v. U.S. Bank is available at:  Link to Opinion. A condominium association (“COA”) filed a lawsuit against a mortgagee seeking possession of…

11th Cir. Holds CAFA’s ‘Local Controversy’ Exception Does Not Preclude Federal-Question Jurisdiction

The U.S. Court of Appeals for the Eleventh Circuit recently held that the federal Class Action Fairness Act’s (CAFA) local-controversy provision, 28 U.S.C. § 1332(d)(4), does not preclude a federal trial court from exercising federal-question jurisdiction. Accordingly, the Eleventh Circuit affirmed the federal trial court’s denial of the plaintiffs’ motion to remand the matter to state court following the defendants’ removal. A copy of the opinion in Blevins v. Aksut is available at:  Link to Opinion. The litigation involved a defendant doctor’s alleged performance of unnecessary heart procedures on the plaintiffs.  Specifically, the plaintiffs alleged that the defendant doctor would…