In a putative class action for alleged violation of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., and notwithstanding the recent ruling by the Supreme Court of the United States in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), the U.S. District Court for the Southern District of New York recently granted a defendant’s request to enter judgment in the consumer’s favor providing all relief sought only by the plaintiff in his individual capacity. A copy of the opinion in Leyse v. Lifetime Entertainment Services, LLC is available at: Link to Opinion. Since the time of this…
In a split decision, the U.S. Court of Appeals for the Ninth Circuit recently affirmed, in part, summary judgment in favor of the Consumer Financial Protection Bureau (CFPB) in an enforcement action against a law firm operating as a loan modification company. In so ruling, the Court rejected the attorney loan modification company’s argument that the CFPB was without authority to commence an enforcement action before its director was properly nominated and confirmed. A copy of the opinion in Consumer Fin. Prot. Bureau v. Gordon is available at: Link to Opinion. The defendant, a licensed California attorney, operated a law…
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…
The U.S. Court of Appeals for the Fifth Circuit recently held that a mortgagee did not waive or abandon its right to foreclose by accepting payments after a default by the borrower, but before acceleration, when no representations were made to the borrower that payments less than the full obligation would bring the loan current. A copy of the opinion in Martin v. Federal National Mortgage Association is available at: Link to Opinion. A borrower obtained a loan secured by a deed of trust (“DOT”). The DOT obligated the borrower to make monthly payments and gave the mortgagee the right to accelerate…
A judgment debtor’s lawsuit requesting the court declare a judgment as “void” is not subject to any limitations period, under a decision from Maryland’s Court of Special Appeals. However, claims arising from the “void” judgment may be subject to Maryland statutes of limitations according to the decision in Jason v. National Loan Recoveries, LLC, available here. No Limitations Period on Claim that an Unlicensed Debt Buyer’s Judgment is ‘Void’ National Loan Recoveries (“NLR”), a debt buyer, obtained a judgment against Jason on an unpaid delinquent credit card account. However, at the time NLR obtained the judgment, it was not licensed…
Withdrawing and substituting its prior opinion in Deutsche Bank Trust Co. America v. Beauvais, 40 Fla. L. Weekly D1 (Fla. 3d DCA Dec. 17, 2014), the District Court of Appeal of the State of Florida, Third District, on April 13 held that: Under Florida law, dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default, if the subsequent default occurred within five years of the subsequent action; and Whether a dismissal is with or without prejudice is irrelevant to a lender’s right to file subsequent foreclosure actions on subsequent…
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…