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8th Cir. Rejects FDCPA Claims Regarding Follow Up Calls for Location Information, Alleged Harassment

Published October 3, 2016 by Maurice Wutscher LLP
8th Cir. Rejects FDCPA Claims Regarding Follow Up Calls for Location Information, Alleged Harassment

The U.S. Court of Appeals for the Eighth Circuit recently held that a debt collector did not violate the federal Fair Debt Collection Practices Act for making subsequent telephone calls to a person other than the consumer regarding the location of the debtor, because the debt collector reasonably believed that the person’s initial response was incomplete. In so ruling, the Eighth Circuit held as a matter of law that 14 calls over a period of approximately two months did not rise to the level of harassment prohibited under the FDCPA, at 15 U.S.C. § 1692d(5). A copy of the opinion in Kuntz…

7th Cir. Holds Inclusion of 1692g ‘Debt Validation’ Notice in Complaint Violated FDCPA

Published October 3, 2016 by Maurice Wutscher LLP
7th Cir. Holds Inclusion of 1692g ‘Debt Validation’ Notice in Complaint Violated FDCPA

The U.S. Court of Appeals for the Seventh Circuit recently reversed the dismissal of a putative class action alleging that the debt collector defendants used misleading language in their state court collection complaints in violation of the federal Fair Debt Collection Practices Act. In so ruling, the Court held that the debt collector’s use of language similar to a notice under 15 U.S.C. § 1692g in its collection complaint was deceptive as a matter of law because it could lead an unsophisticated consumer to believe that the debt would be assumed to be valid by the court if not disputed…

DC Cir. Denies Lender’s Challenge to NLRB’s Ruling as to Lender’s Confidentiality, Non-Disparagement Employee Rules

Published September 30, 2016 by Maurice Wutscher LLP
DC Cir. Denies Lender’s Challenge to NLRB’s Ruling as to Lender’s Confidentiality, Non-Disparagement Employee Rules

The U.S. Court of Appeals for the District of Columbia Circuit recently denied a mortgage company’s petition for review and granted the National Labor Relations Board’s cross-petition for enforcement, holding that the NLRB correctly determined that the mortgage company’s workplace rules unreasonably burdened its employees’ ability to discuss legitimate employment matters, protest employer practices and organize in violation of section 7 of the National Labor Relations Act. A copy of the opinion in Quicken Loans, Inc. v. NLRB is available at:  Link to Opinion. A loan officer began working in the mortgage company’s Scottsdale, Arizona office and signed an employment agreement…

9th Cir. Rules Every Debt Collector – Not Just First to Communicate – Must Comply With FDCPA’s Section 1692g

Published September 29, 2016 by Maurice Wutscher LLP
9th Cir. Rules Every Debt Collector – Not Just First to Communicate – Must Comply With FDCPA’s Section 1692gfdcpa

The U.S. Court of Appeals for the Ninth Circuit, in a case of first impression and the first published circuit court opinion to address the issue, recently held that each and every debt collector — not just the first one to communicate with a debtor — must send the debt validation notice required by the federal Fair Debt Collection Practices Act. A copy of the opinion in Hernandez v. Williams Zinman & Parham is available at:  Link to Opinion. A consumer financed the purchase of her automobile, but stopped making payments on the loan. A debt collection company sent her a…

Calif. App. Court (2nd Dist) Confirms No Implied Right to HBOR Injunctive Relief

Published September 27, 2016 by Maurice Wutscher LLP
Calif. App. Court (2nd Dist) Confirms No Implied Right to HBOR Injunctive Relief

The Court of Appeal of the State of California, Second District, recently affirmed the denial of injunctive relief to a borrower who claimed a violation of Cal. Civ. Code § 2924(a)(6) of the California Homeowner Bill of Rights, holding that injunctive relief is only available under two specific HBOR provisions where the state legislature explicitly authorized such relief – i.e., Cal. Civ. Code §§ 2924.12(a)(1) and 2924.19(a)(1). Because the borrower’s allegations did not fall under either of those sections, the Court held that the borrower was not entitled to injunctive relief. A copy of the opinion in Lucioni v. Bank of…

Fla. App. Court (2nd DCA) Holds Non-Party HOA Not Subject to Foreclosure, HOA Lien Not Limited

Published September 26, 2016 by Maurice Wutscher LLP
Fla. App. Court (2nd DCA) Holds Non-Party HOA Not Subject to Foreclosure, HOA Lien Not Limited

The District Court of Appeal of the State of Florida, Second District, recently reversed a summary judgment in favor of a mortgagee in two consolidated actions for declaratory and injunctive relief regarding the extent of the mortgagee’s liability for unpaid homeowners association assessments, holding that the trial court erred because the homeowners association was not joined as a party, and therefore its liens remained unaffected by foreclosure of the mortgages. The Court pointed out that the only remedies available to a purchaser such as the mortgagee was to move “to compel redemption or filing a de novo action to re-foreclose.”…

6th Cir. Reverses Dismissal of Data Breach Consolidated Class Actions

Published September 23, 2016 by Shannon P. Miller
6th Cir. Reverses Dismissal of Data Breach Consolidated Class Actions

In an unpublished ruling, the U.S. Court of Appeals for the Sixth Circuit recently reversed the dismissal of consolidated class actions arising from a data breach, holding that the plaintiffs had Article III standing to pursue certain tort claims and that the district court had erred in dismissing a federal Fair Credit Reporting Act claim for lack of subject matter jurisdiction. A copy of the opinion in Galaria v. Nationwide Mutual Insurance Company is available at:  Link to Opinion. The plaintiffs brought class actions against an insurance company alleging violations of the FCRA and common law tort claims for invasion of…

ND Calif. Holds Numerous Unwanted Calls Required for TCPA Standing

Published September 22, 2016 by Maurice Wutscher LLP
ND Calif. Holds Numerous Unwanted Calls Required for TCPA Standing

The U.S. District Court for the Northern District of California recently held that an individual had Article III standing to bring a federal Telephone Consumer Protection Act claim against a bank because the individual sufficiently alleged a concrete and particularized injury. However, the Court warned that not just any alleged violation of the TCPA will necessarily give rise to Article III standing.  The Court found persuasive the allegations here that the bank supposedly made voluminous calls to the individual even after the individual supposedly requested the bank to stop calling him because he was not the debtor. A copy of…

6th Cir. Holds Auto Dealer Not Excepted from Providing ECOA Adverse Action Notices

Published September 21, 2016 by Maurice Wutscher LLP
6th Cir. Holds Auto Dealer Not Excepted from Providing ECOA Adverse Action Notices

The U.S. Court of Appeals for the Sixth Circuit recently held that an automobile dealer is a “creditor” under the federal Equal Credit Opportunity Act that was not excepted from the requirement to provide adverse action notices, as the dealer did not “merely arrange for credit by referring applicants to lenders” as provided under Regulation B. The Court also reversed the district court’s ruling that injunctive relief was not an available remedy under ECOA and also reversed summary judgment in the dealer’s favor on the plaintiff’s state-law conversion claim, remanding the case for further proceedings on those claims. A copy…

2nd Cir. Denies Arbitration Due to Specific Agreement as to Arbitration Forum No Longer Available

Published September 20, 2016 by Maurice Wutscher LLP
2nd Cir. Denies Arbitration Due to Specific Agreement as to Arbitration Forum No Longer Available

The U.S. Court of Appeals for the Second Circuit recently confirmed that, in the Second Circuit, an arbitration agreement is no longer binding where the intent of the parties was to arbitrate with only a specific arbitrator and that arbitrator is unavailable. A copy of the opinion in Moss v. First Premier Bank is available at:  Link to Opinion. The borrower took out payday loans from an online payday lender.  The payday lender relied on banks to serve as middlemen to debit the customer’s account.  Two banks each debited the borrower’s account for one payday loan. When the borrower applied for…

Calif. App. Court Denies Appeal for Preliminary Injunction Attorney’s Fees in Calif. HBOR Case

Published September 19, 2016 by Maurice Wutscher LLP
Calif. App. Court Denies Appeal for Preliminary Injunction Attorney’s Fees in Calif. HBOR Case

The Court of Appeal of the State of California, Third Appellate District, recently held that an order denying interim attorney’s fees under California Civil Code § 2924.12, which is part of the California Homeowner Bill of Rights, is not an appealable order. A copy of the opinion in Sese v. Wells Fargo Bank is available at:  Link to Opinion. The plaintiff borrower obtained a mortgage loan, which was subsequently modified, but the plaintiff defaulted on the modified loan also. The defendant mortgagee recorded its notice of default. The plaintiff borrower requested another modification but did not submit the required documentation. The…

Fla. Court Holds Original Creditor Records Inadmissible in Debt Buyer’s Collection Action

Published September 13, 2016 by Maurice Wutscher LLP
Fla. Court Holds Original Creditor Records Inadmissible in Debt Buyer’s Collection Action

The County Court of the Twelfth Judicial Circuit Court of Florida recently held that a debt buyer could not use the original creditor’s credit card statements to try to collect on the underlying debts, as the debt buyer failed to present evidence that it independently verified the accuracy of the credit card statements. A copy of the opinion in Midland Funding LLC v. Nole is available at:  Link to Opinion. The plaintiff debt buyer presented the sworn testimony of a senior legal specialist and records custodian for the debt servicing entity affiliated with the plaintiff.  The records custodian testified as…