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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 Denies Class Cert on ‘Ascertainability’ Grounds, Holds ‘Probing’ Questions in Dispute Call Did Not Violate FDCPA

The U.S. District Court for the Eastern District of New York recently granted summary judgment in favor of a debt collector, holding that the debt collector did not violate the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., by reporting a debt as “deleted” rather than “disputed,” and by asking probing questions in response to a call from the consumer disputing the debt. In addition, the Court denied the plaintiff’s motion for class certification on ascertainability grounds, holding that trying to decipher the debt collector’s summaries of its calls with the putative class members would not be…

1st Cir. Rejects Borrower’s Attempt to Permanently Enjoin Foreclosure Due to Cancellation of Prior Foreclosure Proceedings

The U.S. Court of Appeals for the First Circuit recently held that the cancellation of a foreclosure sale prohibits a borrower from obtaining a permanent injunction to bar a foreclosure, as they would not suffer irreparable harm. A copy of the opinion in Frangos v. Bank of America, N.A. is available at:  Link to Opinion. In 2005, the plaintiff borrowers obtained a refinance mortgage loan on their home. The borrowers defaulted on their mortgage in 2007 and again in 2009. The loan was modified but the borrowers still had not made a mortgage payment since 2009.  Between 2011 and 2013,…

MD Pa. Holds Notice Explaining Tax Consequences of Debt Cancellation Could Be Misleading

The U.S. District Court for the Middle District of Pennsylvania recently denied a debt collector’s motion to dismiss, holding that a collection notice describing the potential tax consequences of settlements involving cancellation of indebtedness of $600 or more may be misleading or deceptive to the least sophisticated consumer. A copy of the opinion in Balon v. Enhanced Recovery Company, Inc. is available at:  Link to Opinion. A consumer filed a complaint against a debt collector alleging the defendant supposedly violated the federal Fair Debt Collection Practices Act (FDCPA) by sending a letter that stated that “any indebtedness of $600.00 or more,…

Pennsylvania Supreme Court Holds Any Entity May Be Liable for Charging Excessive Attorney’s Fees

In an appeal that garnered significant attention from consumer groups who filed briefs as amici curiae, the Supreme Court of Pennsylvania recently held that any entity that charges excessive attorney’s fees in connection with a foreclosure may be liable for treble damages, fines, and attorney’s fees under the Pennsylvania Loan Interest Protection Law. A copy of the opinion in Glover v. Udren Law Offices, PC is available at:  Link to Opinion. The borrower entered into a residential mortgage in 2002, and later defaulted.  In the foreclosure proceedings that followed, the mortgagee’s counsel took several actions on the mortgagee’s behalf. The parties…

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,…