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11th Cir. Rejects Challenge to Debtors’ Ability to Recover Attorney’s Fees in Stay Violation Actions

Published December 11, 2017 by Hector E. Lora
11th Cir. Rejects Challenge to Debtors’ Ability to Recover Attorney’s Fees in Stay Violation Actionsfdcpa litigation

The U.S. Court of Appeals for the Eleventh Circuit recently held, in a case of first impression, that “the Bankruptcy Code authorizes payment of attorneys’ fees and costs incurred by debtors in successfully pursuing an action for damages resulting from the violation of the automatic stay and in defending the damages award on appeal.” A copy of the opinion in Mary Beth Mantiply v. Patricia Nelson Horne is available at:  Link to Opinion. Husband and wife filed for Chapter 7 bankruptcy in 2011 and received a discharge five months later. The husband passed away and his daughter was substituted as personal…

9th Cir. Holds FDCPA Preempts State Judgment Execution Laws

Published December 8, 2017 by Maurice Wutscher LLP
9th Cir. Holds FDCPA Preempts State Judgment Execution Laws

The U.S. Court of Appeals for the Ninth Circuit recently held that the federal Fair Debt Collection Practices Act preempted state judgment execution law insofar as it permitted debt collectors to execute on FDCPA claims. In so ruling, the Court held that debt collectors cannot evade the restrictions of federal law by obtaining a collection judgment against the debtor, and then forcing the debtor’s FDCPA claims to be auctioned, acquiring the claims, and dismissing them. A copy of this opinion Arellano v. Clark Cty. Collection Serv. is available at:  Link to Opinion. The debtor incurred a medical debt, and then failed…

Fla. App. Court (5th DCA) Reverses Foreclosure Due to Lack of Evidence of Effect of Merger of Original Plaintiff

Published December 4, 2017 by Maurice Wutscher LLP
Fla. App. Court (5th DCA) Reverses Foreclosure Due to Lack of Evidence of Effect of Merger of Original Plaintiff

The Florida District Court of Appeal, Fifth District recently reversed a final foreclosure judgment in favor of a mortgagee, holding that the mortgagee did not establish that the original foreclosure plaintiff acquired the note by virtue of a merger, and did not establish the relationship between the original foreclosure plaintiff and the originating lender.  Accordingly, the Court held, the mortgagee did not properly establishing standing as to the original foreclosure plaintiff, as required. A copy of the opinion in Green v. Green Tree Servicing is available at:  Link to Opinion. In 2004, a bank (“originating bank”) extended a mortgage loan…

Debt Collection Rulemaking on Hold Amid CFPB Rancor

Published November 30, 2017 by Donald Maurice
Debt Collection Rulemaking on Hold Amid CFPB Rancor

The future of federal rules covering debt collection has been thrown into doubt amid the leadership change at the Consumer Financial Protection Bureau. In one of his first actions since taking the helm of the CFPB as acting director, Mick Mulvaney announced a halt on all Bureau rulemaking, reported Reuters. It has been more than four years since the CFPB announced plans to propose the first-ever rules regulating debt collectors subject to the federal Fair Debt Collection Practices Act. Last year it issued an outline of what those rules might look like. The Bureau had indicated earlier this year that…

Illinois App. Court (2nd Dist) Holds Mortgage Not Void Due to Lack of Licensure by Originating Lender

Published November 22, 2017 by Maurice Wutscher LLP
Illinois App. Court (2nd Dist) Holds Mortgage Not Void Due to Lack of Licensure by Originating Lender

The Appellate Court of Illinois, Second District, recently held that even though the Illinois Residential Mortgage License Act (“IRMLA”) was applicable to a lender that only made one loan in Illinois, an amendment to the IRMLA provided an exception to the law of the case doctrine and under the amendment the mortgage was not void merely because the lender was not licensed under the IRMLA at the time the loan was extended. A copy of the opinion in First Mortgage Company v. Dina is available at:  Link to Opinion. As you may recall, in First Mortgage Co. v. Dina, 2014 IL…

7th Cir. Holds State, Local Transfer Taxes Apply to Private Entities Doing Business With GSEs

Published November 21, 2017 by Maurice Wutscher LLP
7th Cir. Holds State, Local Transfer Taxes Apply to Private Entities Doing Business With GSEs

The U.S. Court of Appeals for the Seventh Circuit recently held that federal laws exempting federal entities from state and local taxation do not apply when the transfer tax is charged to a private buyer who purchases real estate from Fannie Mae, Freddie Mac, or the Federal Housing Finance Agency (FHFA). A copy of the opinion in FNMA, et al. v. City of Chicago, et al. is available at:  Link to Opinion. A group of buyers purchased real property in Chicago from Fannie Mae. The City of Chicago imposes a Real Property Transfer Tax on the transfer of real property located…

3rd Cir. Holds Defendants Arguing Class Not Ascertainable in TCPA Suit Must Still Produce Putative Class Member Info

Published November 16, 2017 by Maurice Wutscher LLP
3rd Cir. Holds Defendants Arguing Class Not Ascertainable in TCPA Suit Must Still Produce Putative Class Member Info

The U.S. Court of Appeals for the Third Circuit recently reversed an order denying a motion to compel production of a marketing database of putative class members in a federal Telephone Consumer Protection Act (TCPA) lawsuit. In so ruling, the Third Circuit held that:  (1) defendants arguing that a class is not ascertainable should be required to produce information in its possession about putative class members during discovery, and (2) although affidavits from potential class members alone do not satisfy the ascertainability standard for class certification, such affidavits in combination with other records can meet the ascertainability standard. A copy of…

Calif. App. Court (2nd Dist) Holds Bank Did Not Assume Lease by Being Successful Bidder at Foreclosure Sale

Published November 13, 2017 by Maurice Wutscher LLP
Calif. App. Court (2nd Dist) Holds Bank Did Not Assume Lease by Being Successful Bidder at Foreclosure Sale

The California Court of Appeal for the Second District recently held that the mortgage lender’s purchase at foreclosure sale of a leasehold estate – identified in the deed of trust by reference to the lease – did not constitute an express agreement to assume the lease. A copy of the opinion in BRE DDR BR Whittwood CA LLC v. Farmers and Merchants Bank of Long Beach is available at:  Link to Opinion. In December 2006, the original owner of a shopping center entered into a 15-year lease with the tenant for restaurant space.  After a series of transactions, the shopping center was…

7th Cir. Holds Bankers’ Professional Liability Policy Did Not Cover Excessive Fees Claims

Published November 2, 2017 by Hector E. Lora
7th Cir. Holds Bankers’ Professional Liability Policy Did Not Cover Excessive Fees Claims

The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a bank’s lawsuit against its insurer for breach of contract and bad faith denial of coverage, holding that the insurance policy’s exclusion for any claim based upon or arising from fees or charges applied to the facts alleged. The bank argued that the primary sources of the claims against it concerned the bank’s policies and procedures, which were not the subject of a policy exclusion.  However, the Court held the insurer was not required to defend or indemnify the bank for the underlying $24 million settlement…

Fla. App. Court (4th DCA) Holds PSA Insufficient to Prove Foreclosure Standing

Published October 30, 2017 by Hector E. Lora
Fla. App. Court (4th DCA) Holds PSA Insufficient to Prove Foreclosure Standing

In an appeal involving an amicus filed by a national mortgage lending trade association, the District Court of Appeal of the State of Florida, Fourth District, recently reversed a final judgment of foreclosure in favor of a mortgagee, holding that the mortgagee failed to prove that it had possession of the promissory note when the complaint was filed and thus lacked standing to sue because: (a) despite the admission of the Pooling and Servicing Agreement (PSA) into evidence, the evidence was still insufficient to show that the loan was physically transferred; and (b) there were discrepancies between the copy of…

9th Cir. Holds No Remand When Only Portion of Putative Class Met CAFA’s Home-State Controversy Exception

Published October 26, 2017 by Maurice Wutscher LLP
9th Cir. Holds No Remand When Only Portion of Putative Class Met CAFA’s Home-State Controversy Exception

The U.S. Court of Appeals for the Ninth Circuit recently held that a plaintiff cannot force remand of a federal Class Action Fairness Act (CAFA) removal under the home-state controversy exception when only a portion of the putative class met the two-thirds citizenship requirement. A copy of the opinion Brinkley v. Monterey Financial Services, Inc. is available at:  Link to Opinion. A financial services company (“defendant”) allegedly recorded or monitored its telephone conversations with the plaintiff without giving her notice.  The plaintiff brought this action in California state court “alleging (1) invasion of privacy in violation of California and Washington state law; (2) unlawful…

Fla. App. Court (4th DCA) Reverses Dismissal of Re-Filed Foreclosure Action Citing Bartram

Published October 19, 2017 by Hector E. Lora
Fla. App. Court (4th DCA) Reverses Dismissal of Re-Filed Foreclosure Action Citing Bartram

The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action based on res judicata and the statute of limitations, holding that the Florida Supreme Court’s recent ruling in Bartram v. U.S. Bank National Association and its progeny controlled. In so ruling, the Court confirmed that a second foreclosure action is not barred by the statute of limitations or res judicata where continuing payment defaults occurred within the five years preceding the filing of the second foreclosure action. A copy of the opinion in HSBC Bank USA, National Assoc., etc.…