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Posts published by “Thomas Dominczyk”

Tom Dominczyk is based in Maurice Wutscher's New Jersey office and supports the firm's matters in its New York and Pennsylvania offices, practicing in the firm's Commercial Litigation, Consumer Credit Litigation and Bankruptcy groups. Tom has successfully represented financial institutions and law firms throughout the country for claims filed under the Fair Debt Collection Practices Act, Fair Credit Reporting Act and various state consumer protection statutes. In addition to his litigation practice, Tom represents national, regional and local creditors in a variety of bankruptcy matters ranging from the defense of adversary actions to complex non-dischargeability litigation and preference defenses. He served as a Judicial Clerk to the Honorable Graham T. Ross, P.J.F.P., Superior Court of New Jersey, Somerset County. For more information, see https://mauricewutscher.com/attorneys/thomas-r-dominczyk/

ED NY Holds Debtor May Not Force Mortgagee to Take Title in Collateral

The U.S. District Court for the Eastern District of New York recently held that a confirmable Chapter 13 plan cannot both “vest” title to real property and “surrender” that property to a secured lender, and that the secured lender may refuse to accept the vesting in satisfaction of its claim. Thus, the Court held that a debtor may not force the transfer of title in collateral to a secured creditor in satisfaction of the secured creditor’s claim, without the consent of the secured creditor. A copy of the opinion in HSBC Bank USA, NA v. Zair is available at:  Link to…

New York App. Court Reverses Dismissal of Foreclosure Action Involving Electronic Note

The Appellate Division of the Supreme Court of New York recently reversed the dismissal of a foreclosure action involving an electronic note, holding that the mortgagee’s evidence of the eNote transaction history and the eNote itself were sufficient to establish the mortgagee’s standing to foreclose. A copy of the opinion in New York Community Bank v. McClendon is available at:  Link to Opinion. On Nov. 7, 2008, the borrower executed a mortgage in favor of a lender bank to secure a promissory note executed the same day for $544,000. The note was signed by electronic signature. The lender bank was subsequently…

NY High Court Holds Consolidated Mortgage/CEMA Retains Priority of First Mortgage

The New York State Court of Appeals, the highest court in the state, recently held that a consolidated mortgage — often called a “Consolidation, Extension, & Modification Agreement” or “CEMA” — qualifies as the first mortgage of record under New York Real Property Law where there is no intervening lien. A copy of the opinion in Plotch v. Citibank, NA is available at:  Link to Opinion. In 2000, the defendant lender extended a mortgage to a condominium unit owner for $54,000 and recorded the mortgage. The following year, the lender extended another mortgage for $38,000 and entered into a consolidation agreement…

3rd Cir. Rejects Attempt to Distinguish Campbell-Ewald, Holds Rule 68 Offer of Judgment Did Not Moot Claims

The U.S. Court of Appeals for the Third Circuit recently upheld a trial court’s ruling that an unaccepted offer of judgment under Fed. R. Civ. Pro. Rule 68, made before a plaintiff files a motion for class certification, does not make the case moot. The copy of the opinion in Weitzner v. Sanofi Pasteur, Inc. is available at:  Link to Opinion. The named plaintiff filed a putative class action against the defendants for alleged violation of the federal Telephone Consumer Protection Act (TCPA). The plaintiff alleged that the defendants transmitted more than 10,000 facsimiles to the plaintiff and other members of…

WD NY Holds TCPA Claim Does Not Survive Death of Plaintiff, TCPA Damages ‘Wholly Disproportionate to Harm Suffered’

The U.S. District Court for the Western District of New York recently held that claims under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., are penal in nature and therefore do not survive the death of a plaintiff. In so ruling, the Court held that the TCPA’s provision of damages in the amount of $500 per phone call, which could be trebled up to $1,500, is “wholly disproportionate to the harm suffered.” Of note, the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution prohibits the imposition of “grossly excessive or arbitrary punishments…

4th Cir. Confirms Sale Orders in Prior Bankruptcy Precluded Debtor’s Later Claims

The U.S. Court of Appeals for the Fourth Circuit recently affirmed the dismissal of a borrower’s lawsuit against a bank, holding that the district court correctly found that sale orders entered in a prior bankruptcy case were res judicata and precluded the borrower’s new claims. A copy of the opinion in Providence Hall Associates v. Wells Fargo Bank, N.A. is available at:  Link to Opinion. A Virginia-based limited partnership owned real property in several states, and entered into a line of credit and loan secured by deeds of trust or mortgages. The borrower defaulted and filed for bankruptcy protection under Chapter…

8th Cir. Declines to Apply Rooker-Feldman to Preclude FDCPA Action Based on State Court Lawsuit

In a federal Fair Debt Collection Practices Act (FDCPA) lawsuit, the U.S. Court of Appeals for the Eighth Circuit recently held that the Rooker-Feldman doctrine does not apply where the complained of conduct was not the underlying judgment but rather events that occurred during the state court litigation. A copy of the opinion in Hageman v. Barton is available at:  Link to Opinion. The original creditor assigned a debt to a collection agency which in turn hired an attorney to collect the debt from the debtor.  The attorney sent a letter, made a phone call and ultimately filed suit in the…

6th Cir. Rejects Debtor’s Chapter 11 BK Plan as Not Proposed in Good Faith

The U.S. Court of Appeals for the Sixth Circuit recently held that a bankruptcy court clearly erred in its finding that a debtor proposed a Chapter 11 plan in good faith, when the secured mortgagee would be paid only in part and very slowly after 10 years with no obligation by the debtor to maintain the building and obtain insurance, while a second class would be paid in full in two payments of $1,200 each over 60 days. In so ruling, the Sixth Circuit held that the artificial creation of an “impaired” class under section 1124(1) of the Bankruptcy Code,…

Florida Bankruptcy Court Denies Mortgagee’s Motion to Reopen Chapter 7 Case

The U.S. Bankruptcy Court for the Southern District of Florida recently denied a mortgagee’s motion to reopen a Chapter 7 case to compel the surrender of real property, due to a five-year delay in filing the motion. In so ruling, the court agreed with an earlier ruling from the U.S. Bankruptcy Court for the Middle District of Florida (In re Plummer, 513 B.R. 135 (Bankr. M.D. Fla. 2014)), distinguishing “surrender” from “foreclosure,” and holding that a creditor cannot use the Bankruptcy Code to circumvent the obligations imposed by state law. A copy of the opinion in In Re Kourogenis is available…

NJ Fed. Court Reverses Bankr. Court Ruling that Foreclosure Was Barred by NJ Six-Year Statute of Limitations

The U.S. District Court for the District of New Jersey recently held that New Jersey’s 20-year statute of limitations for residential foreclosures applied to a re-filed foreclosure action, reversing a bankruptcy court’s ruling that the shorter six-year statute of limitations period applied. A copy of the opinion is available at:  Link to Opinion. The borrower obtained a $520,000 mortgage loan in February 2007.  The Mortgage and Note listed March 1, 2037 as the maturity date.  The borrower defaulted in July 2007, and a foreclosure action was filed.  However, the foreclosure action was later dismissed for want of prosecution, and then…

NY Court of Appeals Holds Mortgage Loan Repurchase Action Time-Barred

The Court of Appeals of New York recently held that a mortgage loan repurchase action for breach of representations and warranties accrued when the representations and warranties were made, and the obligation to cure and repurchase was not a separate and continuing promise of future performance. A copy of the opinion is available at:  Link to Opinion. The sponsor of a residential mortgage-backed securities trust purchased 8,815 mortgage loans from third-party originators. This pool of loans was sold to an affiliate, known as a “depositor,” pursuant to a Mortgage Loan Purchase Agreement (MLPA) between the sponsor and the depositor dated…

NY High Court: Only Possession of Note is Required to Have Standing to Foreclose

The New York Court of Appeals recently confirmed that, under New York state law, a loan servicer had standing to foreclose on delinquent borrowers based only upon the servicer’s demonstrated possession of the note evidencing the borrowers’ loan since the time the foreclosure action was filed. The Court also held that, although the loan servicer’s affidavit set out sufficient facts to show exclusive possession and control of the note prior to the date the foreclosure action was filed, the affidavit would have been better and clearer if it had also included facts describing how the servicer came into possession of…