The Florida Third District Court of Appeal recently granted rehearing en banc in Deutsche Bank Trust Company Americas v. Beauvais, a case holding that a Florida five-year statute of limitations would bar the re-filed foreclosure action at issue. In so ruling, the Court posed two factual questions to the parties, and requested amicus curiae briefs from the Mortgage Bankers Association of South Florida, the Business Law Section of the Florida Bar, the Real Property Probate & Trust Law Section of the Florida Bar, the Florida Alliance for Consumer Protection, Fannie Mae, and Freddie Mac. A copy of the ruling is…
A large mortgage lender recently prevailed against both the City of Los Angeles and the County of Cook, Illinois, in lawsuits alleging “disparate impact” discrimination in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., more commonly known as the federal Fair Housing Act (FHA). As you may recall, the City of Los Angeles alleged that Wells Fargo & Co. and Wells Fargo Bank, N.A. “engaged in a continuous pattern and practice of mortgage discrimination in Los Angeles since at least 2004 by imposing different terms or conditions on a discriminatory and…
Furnishing information during and after a consumer bankruptcy is a complex task, and implicates the Bankruptcy Code, Fair Credit Reporting Act and Fair Debt Collection Practices Act. Recent litigation suggests that both the content and the timing of the furnished information poses unique risk to the credit and collections industry. And a recent string of lawsuits is raising the stakes on information furnished prior to bankruptcy. On Aug. 19 at 2 p.m. Eastern, we will offer our take on the top issues coming out of recent decisions and what you can do to contain risk and enhance your credit reporting…
National financial services law firm Maurice Wutscher LLP has opened its 11th office, hiring financial services attorney Eric Rosenkoetter to lead the firm’s Texas litigation matters in its new Austin office. Rosenkoetter will practice in the firm’s Commercial Litigation, Consumer Credit Litigation and Regulatory Compliance groups, joining Maurice Wutscher’s skilled team of 25 attorneys focused on defense of the financial services industry in offices throughout the United States. In addition to Austin, Maurice Wutscher has offices in Chicago, Cincinnati, Flemington, Indianapolis, Miami, New York, Philadelphia, San Diego, San Francisco and Washington, DC. Rosenkoetter has substantial experience as a litigation attorney…
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a grant of summary judgment to a servicer and its counsel related to a Georgia non-judicial foreclosure. In so ruling, the Court held that the borrowers had no standing to challenge supposed defects in the assignment of a security deed, and could not sustain a claim for wrongful foreclosure absent evidence that the supposed wrongful conduct actually caused the borrowers’ injuries. A copy of the opinion is available at: Link to Opinion. The case arose out of the servicer’s foreclosure of the borrowers’ residence. Based on this foreclosure, the…
The U.S. Court of Appeals for the Ninth Circuit recently held that, in determining whether a putative class action satisfied the jurisdictional requirements of the federal Class Action Fairness Act, amounts in controversy as to non-class and class claims may not be aggregated to meet CAFA’s diversity requirements. More specifically, the Ninth Circuit held that, “where a plaintiff files an action containing class claims as well as non-class claims, and the class claims do not meet the CAFA amount-in-controversy requirement while the non-class claims, standing alone, do not meet diversity of citizenship jurisdiction requirements, the amount involved in the non-class…
The Florida Fifth District Court of Appeal recently quashed a trial court’s order that a mortgagee’s liability for past due HOA assessments was limited to the lesser of the 12 months of assessments prior to the mortgagee’s acquisition of title in connection with foreclosure, or 1 percent of the original mortgage debt, under the safe-harbor provisions of Fla. Stat. s. 718.116. The Appellate Court held that, although the trial court had correctly interpreted the statute, it lacked jurisdiction to rule on the issue because it failed to specifically reserve jurisdiction to adjudicate the amounts due for HOA assessments in its…
The U.S. Court of Appeals for the Third Circuit recently held that a false statement in a communication from a debt collector must be “material” to be actionable under the FDCPA. In so ruling, the Court found that materiality was a part of the “least sophisticated debtor” analysis. A copy of the opinion is available at: Link to Opinion. In that case, a debt collector had purchased credit-card debt from the original lender. That debt collector then hired a law firm to help collect the debt. The law firm then filed suit to collect the debt. In that underlying case, the law…
The United States Bankruptcy Appellate Panel for the Eighth Circuit recently held that filing a proof of claim on a time-barred debt is not, alone, a prohibited debt collection practice under the federal Fair Debt Collection Practices Act. A copy of the opinion is available at: Link to Opinion. Husband and wife debtors filed a Chapter 13 bankruptcy petition. A medical services provider filed a proof of claim shortly thereafter. After their Chapter 13 plan was confirmed, the debtors filed an adversary proceeding against the medical services provider for damages under the FDCPA, arguing that because the debt was time…
A QR code visible on the face of an envelope embedded with an account number violates the Fair Debt Collection Practices Act, according to a recent decision from the United States District Court for the Middle District of Pennsylvania. A QR or “Quick Response” code is a type of bar code that can contain any sort of information. But the information is not visible, instead the QR code looks more like a jumble of black and white lines or boxes. You can’t do much with a QR code unless you have a device that can read the code. QR Codes…
The Florida Second District Court of Appeal recently affirmed a trial court’s order granting a new trial on the issue of damages in a mortgage foreclosure action, holding that a payment history authenticated by the successor loan servicer was admissible under the business records exception to the hearsay rule because the successor servicer independently verified the accuracy of the payment history received from the prior servicer and explained the procedures used to verify the prior servicer’s loan records. A copy of the opinion is available at: Link to Opinion. This was the second appeal in the same foreclosure action. In…
The Consumer Financial Protection Bureau and Department of Justice recently entered into a Consent Order with an automobile finance company for alleged violations of the federal Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 (ECOA), arising from the auto finance company’s policies and practices allowing car dealer discretion for interest rate markups. A copy of the consent order is available at: Link to Consent Order. A copy of the related DOJ complaint is available at: Link to Complaint. In connection with sales of cars on credit, car dealers frequently submit credit applications to auto finance companies on behalf of their…