National financial services law firm Maurice Wutscher LLP has opened a new office in Birmingham, hiring financial services attorney Brent Yarborough to lead the firm’s Alabama litigation matters. Yarborough will practice in the firm’s Appellate, Commercial Litigation, Consumer Credit Litigation and Regulatory Compliance groups. He joins Maurice Wutscher’s skilled team of litigators who specialize in appellate matters, business formation and transactions, class action litigation, commercial litigation, construction litigation, consumer credit litigation, contested bankruptcies, contested foreclosures, employment litigation, equine law, insurance recovery and advisory services, intellectual property litigation, regulatory compliance, and trials and evidentiary hearings. Maurice Wutscher now has 15 offices…
The U.S. Court of Appeals for the Fourth Circuit recently held that the fact that a debt is in default at the time it is purchased by a third party does not necessarily make that third party a “debt collector” subject to the federal Fair Debt Collection Practices Act (FDCPA). Instead, the Court held that the respective definitions of “creditor” and “debt collector” under the FDCPA, 15 U.S.C. § 1692 et seq., control whether an entity is a debt collector subject to the FDCPA. A copy of the opinion in Ricky Henson v. Santander Consumer USA, Inc. is available at: Link…
The U.S. Court of Appeals for the Second Circuit recently vacated the dismissal of federal Fair Debt Collection Practices Act (FDCPA) allegations that a debt collector’s notice stating the “current balance” of the debt without disclosing that the balance may increase over time due to interest and fees was “misleading” within the meaning of Section 1692e. A copy of the opinion in Avila v. Riexinger & Associates, LLC is available at: Link to Opinion. The defendant debt collector sent collection notices to the plaintiff debtors notifying them that their accounts were placed for collection. The notices stated the “current balance,” but…
The U.S. District Court for the District of Colorado recently denied a debt collector’s motions to dismiss FDCPA allegations that the debt collector’s statements made to the borrower’s attorney during settlement negotiations and statements made to the state court in court filings constitute a violation of the FDCPA, ruling that “none of the provisions implicated in [the borrower’s] claim should be dismissed on the basis that the alleged abusive conduct was communicated to third parties other than the consumer.” A copy of the opinion in Chung v. Lamb is available at: Link to Opinion. The debt collector’s employee contacted the…
The U.S. Court of Appeals for the Sixth Circuit recently affirmed a district court’s dismissal of a qui tam action alleging that a bank violated the federal False Claims Act when it certified that it had engaged in loss mitigation and sought FHA insurance payments on defaulted loans, holding that because the factual basis of the claim was publicly disclosed before suit was filed, only the government could pursue the action in its own name. A copy of the opinion in United States ex rel. ABLE v. U.S. Bank, N.A. is available at: Link to Opinion. The defendant bank participated in…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action, holding that the mortgagee was deprived of due process because the dismissal was entered sua sponte and without notice or opportunity to be heard, and because correction of an erroneous legal description did not require dismissal of the entire case. A copy of the opinion in Federal National Mortgage Association v. Astrid Sanchez, Botanica/Sea Plum Master Association, Inc., Sandpiper Cove at Botanica Condominium Association, Inc., and Carlos Navas is available at: Link to Opinion. A homeowner defaulted and the…
The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s denial of a borrower’s post-verdict motions following the trial of federal Truth in Lending Act and common law fraud allegations. In so ruling, the Second Circuit held that: (1) the trial court properly admitted “habit and routine practice” evidence, over the borrower’s objection that this evidence was actually inadmissible “propensity evidence;” and (2) the trial court properly admitted photocopies of various loan documents into evidence, over the borrower’s objections of lack of authentication and the “best evidence” rule. A copy of the opinion in Crawford v. Franklin…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed summary judgment of foreclosure in favor of a mortgagee, holding that the plaintiff mortgagee failed to satisfy its heightened burden of proving the absence of any genuine issue of material fact on the issue of standing applicable because the motion for summary judgment was filed before the defendant answered the complaint, and the plaintiff mortgagee was on notice at the time that the defendant was contesting standing. A copy of the opinion in Statewide Homeowners Solutions, LLC v. Nationstar Mortgage, LLC is available at: Link to Opinion. A homeowners…
The Third District Court of Appeal, State of Florida, recently reversed the dismissal of a mortgage foreclosure action based on the mortgagee’s failure to provide the name of the corporate representative who was to testify at trial, holding that dismissal was an overly harsh sanction given that no prejudice was shown. A copy of the opinion in Deutsche Bank Nat’l Trust Co. v. Perez, et al. is available at: Link to Opinion. In October 2009, the trustee of a mortgage-backed securities trust sued to foreclose a mortgage on real property in Miami-Dade County, Florida. In October 2014, the case was set for…
The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a breach of contract claim brought by a group of investors against a bank that purchased the assets of a failed bank in receivership, because there was no writing memorializing the alleged agreement, as required by the federal Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) and the Illinois Credit Agreement Act (ICAA). A copy of the opinion in United Central Bank v. Davenport Estate LLC is available at: Link to Opinion. A bank extended loans to a group of real property investors in 2008 and also agreed…
The U.S. District Court of the Western District of North Carolina recently stayed proceedings in a suit pending the U.S. Court of Appeals for the District of Columbia’s ruling on challenges to the Federal Communication Commission’s Declaratory Ruling and Order, 30 FCC Rcd. 7961 (2015) (the “FCC Order”) under the federal Telephone Consumer Protection Act (TCPA). A copy of the opinion in Abplanalp v. United Collection Bureau, Inc. is available at: Link to Opinion. The plaintiff’s credit card agreement contained an arbitration provision requiring that all claims against the lender, including claims against third parties to whom the plaintiff’s debt was…
The U.S. Court of Appeals for the Sixth Circuit recently reversed a district court’s dismissal of a putative class action lawsuit, holding that while the district court was correct that the first-to-file rule applied because of a previous class action involving substantially the same parties and claims, it was an abuse of discretion to dismiss the present case given the jurisdictional and procedural hurdles the plaintiffs would face if forced to become part of the earlier class action filed in another federal judicial district. A copy of the opinion in Baatz v. Columbia Gas Transmission, LLC is available at: Link to Opinion.…