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TCPA Roundup: As Big Data Grows, So Does Scale of TCPA Violations

As big data grows, so does the scale of TCPA violations, and with that the settlements; one of the largest in TCPA history was in the news last week. In a California district court, attorneys who guided consumers in suing a bank for a $32 million settlement were denied a bid to increase their fees to $8 million. The settlement was the largest TCPA deal to be approved at the time, settling the case in which the plaintiffs claimed they had received automated phone calls from the defendants without their consent. However, this past July saw a $75.5 million settlement granted preliminary approval in…

Florida Court Holds Witness Need Not Be Employed for Entirety of Payment History Period to Lay Proper Business Records Foundation

The Florida Third District Court of Appeal recently reversed a trial judge’s refusal to admit a loan payment history into evidence, holding that the foreclosing mortgagee properly demonstrated that the payment history was a business record, even though its witness started working for the mortgagee in 2012 and the payment history included information since 2005. A copy of the opinion is available at:  http://www.3dca.flcourts.org/Opinions/3D13-0910.pdf The mortgagee started servicing the loan in 2005. The borrowers defaulted in 2009 and the mortgagee sued to foreclose. At trial, the mortgagee called a “mortgage resolution associate,” who had worked at the mortgagee only since 2012, who…

Florida Court Upholds Judgment in Action on Note Following Foreclosure

The Florida First District Court of Appeal recently affirmed a monetary judgment against a borrower in a follow up action to collect the balance owed on a note secured by a mortgage. The follow up action was consolidated with a prior foreclosure action in which the court reserved jurisdiction to enter a deficiency judgment. A copy of the opinion is available at: https://edca.1dca.org/DCADocs/2014/0930/140930_DC05_05012015_101049_i.pdf. The plaintiff bank sued to foreclose its mortgage on the borrower’s property in 2008. The complaint also requested a deficiency judgment. The trial court entered summary judgment against the borrower, reserving jurisdiction to enter a deficiency judgment. The plaintiff mortgagee was…

Ohio Supreme Court Rules Standing Must Exist When Foreclosure Is Filed, But Can Be Proven Later

The Supreme Court of Ohio recently held that, although the plaintiff in a mortgage foreclosure action must have standing to sue when suit is filed, standing can be proven after the case is filed. A copy of the opinion is available at: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-1484.pdf The plaintiff mortgagee sued to foreclose its mortgage in 2010 after borrowers defaulted on the promissory note. The complaint did not seek a deficiency because the borrowers’ personal liability had been discharged in bankruptcy. One of the borrowers filed an answer raising lack of standing as a defense. The mortgagee moved for summary judgment, supporting its position on…

Florida Court Reverses Trial Court’s Refusal to Extend Duration of Lis Pendens

The District Court of Appeal of Florida for the Fifth District recently held that a trial court’s refusal to extend the duration of a lis pendens on real property was a departure from the essential requirements of law. A copy of the opinion is available at: http://www.5dca.org/Opinions/Opin2015/042715/5D14-4009.op.pdf Due to a scrivener’s error by the closing agent, the real property that was supposed to have secured a loan was not encumbered by the mortgage. The lender sued to reform the loan documents and foreclose or, in the alternative, to impose an equitable lien against the subject property. The lender moved to extend…

First Circuit Confirms Loan Modification Rendered Borrower’s ‘Standing’ Challenge Moot

The U.S. Court of Appeals for the First Circuit recently dismissed a borrower’s appeal as moot because the borrower and loan servicer entered into a loan modification agreement while the appeal was pending, meaning the borrower was no longer subject to any actual or threatened foreclosure proceedings. A copy of the opinion is available at:  Link to Opinion In 2005, the borrower obtained a $200,000 loan secured by a mortgage on her home. The mortgage was assigned twice, the last one to a bank as trustee. The first assignee, to whom the note was transferred along with the mortgage, endorsed…

Ninth Circuit Holds State Court Order Expanding Class Size Triggers Removal Opportunity

The US. Court of Appeals for the Ninth Circuit recently reversed a district court’s order remanding a class action to state court, holding that a second removal was proper and timely-filed 30 days after the state court entered an order that expanded the class definiton after the first removal. A copy of the opinion is available at:  http://cdn.ca9.uscourts.gov/datastore/opinions/2015/04/01/15-55176.pdf The plaintiff, an assistant store manager at a nationwide chain of discount retail stores, filed this action in state court in July of 2012, alleging that the employer supposedly violated the California Labor Code by denying 10-minute rest breaks to its employees. As…

Florida Court Reverses Foreclosure Judgment, But Remands Without Involuntary Dismissal

The District Court of Appeal of Florida, Second District, recently reversed a final judgment of foreclosure, holding that the mortgagee failed to properly establish the amount of its damages. However, the Appellate Court further held that because the borrower failed to move for dismissal at the close of evidence, the proper remedy was reversal and remand, rather than involuntary dismissal. A copy of the opinion is available at: Link to Opinion A mortgagee filed a foreclosure action against the borrowers in early 2009.  Ultimately, the case was tried in November of 2013.  It was undisputed at trial that the mortgagee had standing as the…

Maurice & Needleman and McGinnis Wutscher Are Now Maurice Wutscher

You may have noticed a new firm logo on our site. I’m very happy to announce the merger of Maurice & Needleman with financial services law firm McGinnis Wutscher. The alliance enables us to provide the services of 24 lawyers in 10 offices in the Northeast, Southeast, Midwest and West. We now have offices in Chicago, Cincinnati, Indianapolis, Miami, San Diego, San Francisco and Washington in addition to New York, Flemington and Philadelphia. As Maurice Wutscher, the firm will focus in the areas of consumer credit defensive litigation, commercial banking litigation, regulatory compliance, insurance recovery and advisory services, professional liability defense and ethics matters. The lawyers of…

Working with New York’s Latest Debt Collection Regulations

New York’s Department of Financial Services published regulations on Dec. 3, 2014, which would require debt collectors to make additional disclosures to consumers following initial communications, provide consumers who dispute charged-off debt with certain information, adopt procedures concerning the applicability of statutes of limitations, maintain certain records and provide written confirmation of settlements, among other things. The regulations (available here) are applicable to third-party debt collectors (those who collect debts owed to others) and debt-buyers. On Jan. 15, I’ll be discussing the regulations in a DBA International webinar Working with New York’s Latest Debt Collection Regulations (register here). In the meantime, here is a closer look at the regulations. Who…

Seventh Circuit Denies Petition in Proof of Claim Case

Like the 80 inches of snow that pummeled Buffalo this week, the crusade against time-barred debt continues to hammer the collection industry.  Today the United States Court of Appeals for the Seventh Circuit denied a petition for leave to file an interlocutory appeal in the matter of Patrick v. PYOD, LLC. Earlier this summer, a judge sitting in the United States District Court for the Southern District of Indiana denied a collector’s motion to dismiss an FDCPA complaint based on the filing of a proof of claim on a debt that was beyond the statute of limitations. Relying on Randolph v.…

Crawford, Progeny – More than Proofs of Claim on Time-Barred Debt

It has been several months since the Eleventh Circuit handed down its decision holding that filing a proof of claim on “time-barred” debt violates the FDCPA. The request for rehearing, which I reported about this past summer, was denied. While a petition for certification to the Supreme Court is possible, even if the court accepts the case (and that’s a tall order itself) we would not see a decision before 2016. A Multitude of Crawford-type Claims While it was a safe bet a new round of FDCPA claims would be spawned by Crawford, the sheer number of claims being filed outside the Eleventh Circuit is surprising.…