The District Court of Appeal of Florida, Fifth District, recently ruled that a specific denial that a mortgagee complied with HUD’s pre-foreclosure regulations that were incorporated into the mortgage was a denial of a condition precedent to foreclosure that shifted the burden to the mortgagee to prove compliance.
The District Court of Appeal of Florida, Second District, recently rejected a borrower’s objection to a foreclosure sale under the theory the mortgagee failed to provide him with an “estoppel letter,” which would have allowed him to exercise his right of redemption. A copy of the opinion is available at: Link to Opinion. A foreclosure judgement was entered and the property was sold via public sale. Ten days later, the borrower objected to the sale of the property. The objection was denied and a certificate of title was issued to the mortgagee. The borrower appealed, arguing that the trial court…
The Third District Court of Appeal of the State of Florida recently affirmed a final judgment awarding attorney’s fees to the borrowers in a mortgage foreclosure action, even though the borrowers failed to raise any request for attorney’s fees in their answer and affirmative defenses to the foreclosure complaint. In so ruling, the Court held that the mortgagee was on notice that the borrowers were seeking to recover their attorney’s fees and failed to timely object to the borrowers’ failure to plead entitlement. A copy of the opinion is available at: Link to Opinion. The mortgagee filed a mortgage foreclosure…
The U.S. Court of Appeals for the Seventh Circuit recently held that a bank that honored a counterfeit check was not entitled to reimbursement from the party who deposited the check, nor from the depositing party’s bank or the Federal Reserve. A copy of the opinion is available at: Link to Opinion. In 2013, an attorney received an email from a person who claimed she wanted to hire him to help her recover money that she said she was owed in a divorce proceeding. The purported ex-wife subsequently told the attorney that after retaining him, her ex-husband settled, and that…
A federal jury in the U.S. District Court for the Southern District of Texas found a mortgage lender and its president and CEO liable for almost $93 million in connection with alleged violations of the False Claims Act (FCA) and the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), before application of the trebling and per violation penalties afforded under the statutes. The alleged violations occurred in connection with the lender’s participation in the Federal Housing Administration (FHA) mortgage insurance program. A copy of the U.S. Department of Justice’s (DOJ) press release is available at: Link to Press…
The U.S. Court of Appeals for the Eleventh Circuit recently held that federal courts that have original subject matter jurisdiction over state law claims under the federal Class Action Fairness Act retain that jurisdiction even when the class claims are dismissed before the class is certified.
The U.S. Court of Appeals for the Second Circuit recently held in a non-precedential opinion that a consumer, in the circumstances of this case, did not have standing to bring putative class action claims after entry of judgment in his favor on his individual claims pursuant to the defendants’ offer of judgment under Rule 68 of the Federal Rules of Civil Procedure.
The District Court of Appeal of the State of Florida, Fourth District, recently reversed a trial court’s ruling in favor of mortgage loan borrowers based on the mortgagee’s failure to satisfy a condition precedent in paragraph 22 of the mortgage in accepting partial payments after default, holding that the mortgagee substantially complied with the requirements of the mortgage. In so ruling, the Court held that the mortgagee was not obligated to send new acceleration notices after each partial payment was received, as the borrowers never cured the default by paying the total amount needed to cure the default and reinstate…
The Federal Communications Commission recently denied the national Mortgage Bankers Association’s petition for exemption from the “prior express consent” requirement of the Telephone Consumer Protection Act for certain mortgage servicing calls and texts. A copy of the FCC’s Order denying the petition is available at: Link to FCC Order. As you may recall, the TCPA and the FCC’s implementing rules prohibit autodialed calls and texts “to wireless telephone numbers and other specified recipients except when made: (1) for an emergency purpose; (2) solely to collect a ‘debt owed to or guaranteed by the United States’; (3) with the prior express…
The District Court of Appeal of Florida, Second District, recently reversed an order denying a claim for a post-foreclosure sale deficiency judgment, holding that the trial court abused its discretion by excluding from evidence an expert’s testimony and report as to fair market value because the report was dated six days after the foreclosure sale. A copy of the opinion is available at: Link to Opinion. A final judgment of foreclosure in the amount of $2.4 million was entered against the borrower company and its principal. A third party purchased the property at a foreclosure sale for $100. The third…
The U.S. District Court for the Middle District of Florida recently held that a mortgage servicer did not have standing to invoke a jury trial waiver in a mortgage when the servicer was not a party to the mortgage.
The California Court of Appeal, Fourth Appellate District, recently held that a successful consumer plaintiff was entitled to $185,000 in attorney’s fees and costs, even though she rejected a settlement offer containing an appropriate remedy before she filed suit. In so ruling, the Court held that rejecting the pre-litigation settlement offer was not unreasonable, as the offer required the consumer to agree to a broad release of claims and a confidentiality clause, and especially as the confidentiality provision in particular was unlawful as to the consumer’s Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq. (“Song-Beverly Act”) claims.…