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Illinois Supreme Court Holds Foreclosure Deadline to Challenge Service Tolled While Action Dismissed

Published February 20, 2018 by Maurice Wutscher LLP
Illinois Supreme Court Holds Foreclosure Deadline to Challenge Service Tolled While Action Dismissed

Reversing the rulings of both the appellate and the trial courts, the Supreme Court of the State of Illinois recently held that the deadline to file a motion to quash service under the Illinois Mortgage Foreclosure Law (IMFL) did not run while the foreclosure action was dismissed for want of prosecution. A copy of the opinion in Bank of New York Mellon v. Laskowski is available at:  Link to Opinion. The plaintiff mortgagee filed a residential mortgage foreclosure complaint against, among others, the borrower and a limited liability company. The mortgagee filed an affidavit of service by publication indicating that,…

Calif. App. Court (1st Dist) Holds Intent of Parties Determines Priority of Simultaneous Lien Recordings

Published February 15, 2018 by Maurice Wutscher LLP
Calif. App. Court (1st Dist) Holds Intent of Parties Determines Priority of Simultaneous Lien Recordings

The Court of Appeal of California, First District, recently concluded that if two deeds of trust are submitted at the same time for recording, the order in which they are indexed is not determinative of priority.  Instead, according to the Court, the intent of the parties will determine priority. In this case, one originating lender extended two loans secured by the same real estate, and it was apparent that the expectation was that the larger mortgage loan would have priority. The trial court had held that the defendant was the senior lienholder even though the defendant’s mortgage was indexed after…

Calif. App. Court (1st Dist) Holds Assignee May Sue Title Company for Erroneous Release

Published February 13, 2018 by Maurice Wutscher LLP
Calif. App. Court (1st Dist) Holds Assignee May Sue Title Company for Erroneous Release

The Court of Appeal of California, First District, recently held that an assignee of the original beneficiary of a deed of trust, as the current holder of an obligation, has the right under California Civil Code § 2941(b)(6) to prove damages against the title company that allegedly recorded a release of the deed of trust in error. A copy of the opinion in SMS Financial XXIII, LLC v. Cornerstone Title Company is available at:  Link to Opinion. In 2004, a bank made a business loan to an investment company.  The loan was guaranteed by the investment company’s principals (“guarantors”) and secured…

10th Cir. Holds Borrower’s FDCPA, Other Claims Not Barred by Rooker-Feldman After Non-Judicial Foreclosure

Published February 12, 2018 by Hector E. Lora
10th Cir. Holds Borrower’s FDCPA, Other Claims Not Barred by Rooker-Feldman After Non-Judicial Foreclosure

The U.S. Court of Appeals for the Tenth Circuit recently held that the Rooker-Feldman doctrine did not bar the trial court from considering the plaintiff’s claims because she was not challenging or seeking to set aside an underlying non-judicial mortgage foreclosure proceeding under Colorado law. Accordingly, the Tenth Circuit remanded to the trial court to determine what effect, if any, the non-judicial proceeding had under the doctrines of issue and claim preclusion. A copy of the opinion in Mayotte v. U.S. Bank National Association is available at:  Link to Opinion. The borrower signed a note secured by a deed of trust.  The…

Calif. App. Court (2nd Dist) Holds Correction Offer Under CLRA Did Not Preclude Other Claims

Published February 9, 2018 by Maurice Wutscher LLP
Calif. App. Court (2nd Dist) Holds Correction Offer Under CLRA Did Not Preclude Other Claims

The California Court of Appeal for the Second District recently held that a correction offer under the California Consumer Legal Remedies Act did not prevent a consumer from pursuing causes of action for fraud and violation of the California Unfair Competition Law based on the same conduct because the CLRA’s remedies are cumulative and non-exhaustive. A copy of the opinion in Flores v. Southcoast Automotive Liquidators, Inc. is available at:  Link to Opinion. An automotive dealer published print advertisements showing low prices for specific cars to attract customers to the dealership.  Small print at the bottom of the advertisements stated that the…

10th Cir. Affirms Dismissal of Fair Credit Billing Act Claims Due to Paid Off Balance

Published February 5, 2018 by Maurice Wutscher LLP
10th Cir. Affirms Dismissal of Fair Credit Billing Act Claims Due to Paid Off Balance

The U.S. Court of Appeals for the Tenth Circuit recently held that a consumer had no claim under the federal Fair Credit Billing Act (FCBA) where he had already fully paid the balance of his credit cards, because after full payment there was no “credit outstanding.” A copy of the opinion in Hasan v. Chase Bank USA, NA is available at:  Link to Opinion. The plaintiff consumer used a credit card from a bank (“Bank One”) to pay $689,176.92 to a company for the future delivery of wine.  The consumer used another credit card from another bank (“Bank Two”) to…

Calif. App. Court (1st Dist) Affirms Denial of Class Cert for Lack of Evidence Identifying Putative Class Members

Published February 2, 2018 by Maurice Wutscher LLP
Calif. App. Court (1st Dist) Affirms Denial of Class Cert for Lack of Evidence Identifying Putative Class Members

The California Court of Appeal for the First District recently affirmed an order denying class certification because the plaintiff did not present evidence to demonstrate how putative class members can be identified from the defendant’s records. A copy of the opinion in Noel v. Thrifty Payless, Inc. is available at:  Link to Opinion. In July 2013, the plaintiff purchased an inflatable kids pool from a retail vendor.  The plaintiff based his decision to purchase the pool on the pool’s packaging, which showed a photograph of a group of three adults and two children sitting and playing in the pool.  The plaintiff…

Illinois App. Court Rules Factual Question Precluded Summary Judgment in HUD/FHA Face-to-Face Challenge

Published February 1, 2018 by Maurice Wutscher LLP
Illinois App. Court Rules Factual Question Precluded Summary Judgment in HUD/FHA Face-to-Face Challenge

The Appellate Court of Illinois, Second District recently concluded that two borrowers failed to rebut the foreclosing mortgagee’s prima facie case of standing to pursue foreclosure against the borrowers, and affirmed the trial court’s determination that the plaintiff mortgagee established as a matter of law that it had standing. The Second District, however, reversed the trial court’s order of summary judgment by concluding there were issues of fact as to whether the plaintiff complied with HUD’s face-to-face interview requirement at 24 C.F.R. § 203.604. As to the standing issue, the Second District held that the plaintiff established a prima facie…

DC Cir. Upholds Dismissal of False Claims Act Action Arising Out of 2012 Nat’l Mortgage Settlement

Published January 29, 2018 by Maurice Wutscher LLP
DC Cir. Upholds Dismissal of False Claims Act Action Arising Out of 2012 Nat’l Mortgage Settlementmortgage law

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the dismissal of a federal False Claims Act lawsuit alleging a lender’s violation of the 2012 National Mortgage Settlement and violation of the Home Affordable Modification Program through the lender’s alleged false certifications of compliance. A link to the opinion in U.S. ex rel. Schneider et al. v. JPMorgan Chase Bank is available at:  Link to Opinion. The relator, an owner of a mortgage servicing company who purchased numerous loans from the lender, alleges to have discovered numerous violations of the 2012 National Mortgage Settlement based upon the lender’s handling of…

Calif. App. Court (4th Dist) Upholds Denial of Class Cert, Rules Injunctive Claims Not Easier to Certify

Published January 24, 2018 by Maurice Wutscher LLP
Calif. App. Court (4th Dist) Upholds Denial of Class Cert, Rules Injunctive Claims Not Easier to Certify

The California Court of Appeal for the Fourth District recently affirmed an order denying class certification in a declaratory relief action because the plaintiff failed to establish ascertainability, predominance and superiority. In so ruling, the Appellate Court held that California Code of Civil Procedure section 382 did not have an equivalent to Rule 23(b)(1)(A) or (b)(2) of the Federal Rules of Civil Procedure, and that the federal rule provided less onerous requirements for declaratory or injunctive relief actions than for damages. A copy of the opinion in Hefczyc v. Rady Children’s Hospital-San Diego is available at:  Link to Opinion. In November…

7th Cir. Holds Debt Collector Violated FDCPA Despite Using Miller Safe Harbor Language

Published January 22, 2018 by Maurice Wutscher LLP
7th Cir. Holds Debt Collector Violated FDCPA Despite Using Miller Safe Harbor Language

The U.S. Court of Appeals for the Seventh Circuit recently held that “debt collectors cannot immunize themselves from FDCPA liability by blindly copying and pasting the Miller safe harbor language” where that language is inaccurate under the circumstances. Accordingly, the Seventh Circuit reversed the trial court decision granting the debt collector’s motion to dismiss. A copy of the opinion in Boucher v. Finance System of Green Bay, Inc. is available at:  Link to Opinion. The plaintiff debtors were Wisconsin residents who incurred and defaulted on debts for medical services.  Their creditors sold those debts to the defendant collection agency, which in turn…

Illinois App. Court (1st Dist) Holds Subsequent Foreclosure-Related Action Barred by Illinois ‘Single Refiling’ Rule

Published January 18, 2018 by Maurice Wutscher LLP
Illinois App. Court (1st Dist) Holds Subsequent Foreclosure-Related Action Barred by Illinois ‘Single Refiling’ Rule

The Appellate Court of Illinois, First District, recently dismissed a mortgagee’s “breach of mortgage contract” action as an impermissible second refiling following prior voluntary dismissals of a 2011 foreclosure complaint and 2013 action for breach of the promissory note based upon the same note and mortgage. In so ruling, the Appellate Court concluded that, despite the plaintiff mortgagee’s differing theories of relief based upon foreclosure sale and deficiency judgment and enforcement of the note itself in past suits, dismissal was warranted under Illinois law, because all of the complaints arose from a single group of operative facts and sought to…