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…
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…
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…
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…
The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court’s judgment in favor of several lender defendants in a putative TCPA class action, ruling that the defendants could not be vicariously liable under the TCPA for a promoter’s text messages because the promoter was either not the defendants’ agent or the defendants did not have knowledge concerning material facts about the agent’s unlawful activities. In so ruling, the Ninth Circuit held that mere knowledge that an agent is engaged in an otherwise commonplace marketing activity, such as text message marketing, would not lead a reasonable person…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed a trial court’s order denying two borrowers’ request for attorney’s fees and costs on judicial estoppel grounds. In so ruling, the Fourth DCA held that the trial court improperly relied on a Fifth Circuit case and failed to apply Florida’s judicial estoppel doctrine when it concluded that the borrowers’ failure to disclose their attorney’s fee claim in their Chapter 11 bankruptcy schedules barred the fee claim. A copy of the opinion in Anfriany v. Deutsche Bank National Trust is available at: Link to Opinion. In 2008, the…
The U.S. Court of Appeals for the Second Circuit recently affirmed the entry of judgment on the pleadings against the plaintiff in a putative class action alleging that a text message sent by a third party on behalf of a hospital reminding the plaintiff about a flu shot violated the federal Telephone Consumer Protection Act (TCPA), holding that the plaintiff provided his prior express consent to receive such messages in a hospital admission form. A copy of the opinion in Latner v. Mt. Sinai Health System, Inc. is available at: Link to Opinion. The plaintiff went to a medical clinic owned by a…
Adding to the growing split of authority among California’s various state appellate courts, and among various federal courts in California, the Court of Appeal of the State of California, Third Appellate District, recently held that a loan servicer may owe a duty of care to a borrower through application of the “Biakanja” factors, even though its involvement in the loan does not exceed its conventional role. In so ruling, the Third District “assumed without deciding” that California Civil Code § 2923.6(g) offers an affirmative defense to a negligence claim in loan modification cases where the borrower submits multiple loan modification…
The Sixth Circuit Court of Appeals recently concluded that distributing all of a company’s cash to its owners after a class action settlement was reached but before the court’s order to pay became final, thus leaving the company without the ability to pay class counsel’s fees or administration costs as required under the settlement agreement, did not constitute contempt. The trial court had originally determined that the distribution of the money constituted contempt because the defendant had knowingly violated the court’s order to pay class counsel’s fees. The Sixth Circuit, however, concluded that a finding of contempt is limited to…
9th Cir. Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity ‘Amount in Controversy’
9th Cir. Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity ‘Amount in Controversy’
The U.S. Court of Appeals for the Ninth Circuit recently held that the trial court did not have subject matter jurisdiction based upon diversity over claims which sought a temporary stay of a foreclosure sale pending the review of a loan modification application because the amount of controversy did not exceed $75,000. In so ruling, the Court held that, for claims which merely seek a temporary stay of a foreclosure sale, the amount in controversy is not the value of the underlying loan. A copy of the opinion in Corral v. Select Portfolio Servicing, Inc. is available at: Link to Opinion.…
In a case involving a claim on a fire insurance policy relating to damaged real estate, the U.S. Court of Appeals for the Sixth Circuit recently held that the insurance policy’s two-year limitations provision did not apply to a claim brought under section 500.2006(4) of Michigan Complied Laws because it was not a claim “under the policy,” and instead Michigan’s “catch-all” six-year period of limitations applied. In addition, and contrary to two previous unpublished rulings, the Sixth Circuit determined that a private cause of action exists under section 500.2006(4) Accordingly, the Sixth Circuit determined that the insured’s claim was timely,…
A recent decision from a trial court sitting in Illinois calls into question whether debt collectors can rely on a widely used disclosure when collecting debt that may be subject to an expired limitations period. A copy of the opinion in Richardson v. LVNV Funding, LLC is available at: Link to Opinion. In 2012 the Federal Trade Commission and Asset Acceptance, LLC entered into a consent decree to resolve an enforcement action that included allegations that Asset’s debt collection activities violated the federal Fair Debt Collection Practices Act. The consent decree provided that when collecting “time-barred” debt not subject to credit reporting,…