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ND Calif. Holds Alleged ‘Invasion of Privacy’ Sufficient for TCPA Standing

The U.S. District Court for the Northern District of California recently held that a mobile phone app designed to send messages to a phone user’s contacts did not violate the federal Telephone Consumer Protection Act because the phone user selected the message recipients and had to take several affirmative steps for the app to send the unwanted messages. In so ruling, the Court also held that the plaintiff had Article III standing because his TCPA claim did not simply allege a procedural violation, and instead alleged that he suffered concrete harm because the mobile app provider supposedly invaded his privacy…

6th Cir. Confirms No TILA Right to Cancel for Failure to Disclose Assignment of Loan

The U.S. Court of Appeal for the Sixth Circuit recently confirmed that a mortgagee’s alleged failure to notify borrowers of an assignment of the loan does not give rise to a right to cancel under the federal Truth In Lending Act (TILA). A copy of the opinion in Robertson v. US Bank, NA is available at:  Link to Opinion. A mortgagee initiated a foreclosure action, and the borrowers responded with a “notice of rescission” to the mortgagee and the mortgagee’s counsel, alleging that the mortgagee had violated the federal Truth in Lending Act and that the mortgagee lacked standing to foreclose.…

Calif. App. Court (2nd Dist) Rejects Claim That Post-Dated Checks Were Undisclosed ‘Deferred Down Payments’

The Court of Appeal of the State of California, Second District, recently held that the California Rees-Levering Motor Vehicle Sales and Finance Act, Calif. Civil Code, § 2981, et seq. (“Rees-Levering Act”) does not require a post-dated check provided at the time of sale to be categorized as a “deferred down payment” on the sales contract. A copy of the opinion in Nichols v. Century West is available at:  Link to Opinion. The plaintiff purchased a car from the defendant car dealer using three checks as down payment.  Two of the checks were dated the day after the contract was signed, and…

7th Cir. Rejects FDCPA Claims That Illinois Wage Garnishments Are Actions ‘Against Consumer’

The U.S. Court of Appeals for the Seventh Circuit recently held that a wage garnishment action under Illinois law is not a legal action “against a consumer” under the federal Fair Debt Collection Practices Act (FDCPA). Accordingly, the Court held, an Illinois wage garnishment action need not be pursued only in the judicial district in which the debtor signed the debt agreement, or in which the debtor currently resides, under 15 U.S.C. § 1692i(a)(2). A copy of this opinion in Etro v. Blitt & Gaines, P.C. is available at:  Link to Opinion. Two Illinois debtors filed similar complaints against a debt…

9th Cir. Rejects FDCPA Claim for Failure to Disclose ‘Debt Collector’ Status in Follow Up Communications

The U.S. Court of Appeals for the Ninth Circuit recently held that there is no federal Fair Debt Collection Practices Act (FDCPA) violation if a subsequent communication is sufficient to disclose to the least sophisticated debtor that the communication was from a debt collector, even without expressly stating “this communication is from a debt collector.” In reaching the conclusion, the Court gave weight to the extensive communication between the debtor and debt collector, prior to the debt collector’s employee leaving a voicemail in which the employee stated he was from the debt collector. A link to the opinion in Davis v.…

9th Cir. Holds Nevada HOA Lien Foreclosure Statute Facially Unconstitutional

The U.S. Court of Appeals for the Ninth Circuit recently held that the Nevada homeowners association foreclosure statute facially violated mortgage lenders’ constitutional due process right, and that the Nevada legislature’s enactment of a statute governing foreclosure of liens by HOAs constituted “state action.” A copy of the opinion in Bourne Valley Court Trust v. Wells Fargo Bank, N.A. is available at: Link to Opinion. A purchaser of Nevada real estate who acquired title at a homeowners association foreclosure sale brought an action in Nevada state court seeking to quiet title and a declaration against the mortgage lender, as holder of…

ND Illinois Holds HPA Preempts Breach of Contract, UDAP Claims ‘Relating to’ HPA’s Requirements

The U.S. District Court for the Northern District of Illinois recently held that the federal Homeowners Protection Act, 12 U.S.C. § 4901, et seq., preempts state law UDAP and breach of contract claims, when the state law claims are based on allegations “relating to” the HPA’s requirements. A copy of the opinion in Ciolino v. Seterus, Inc. is available here:  Link to Opinion. A borrower purchased private mortgage insurance (PMI) in connection with his mortgage loan.  He received the required PMI disclosure form, notifying him that his PMI policy would automatically terminate on the date his principal balance was scheduled…

SD Calif. Holds No Standing For TCPA Plaintiff Alleging 290 Nonconsensual Calls

The U.S. District Court for the Southern District of California recently held that a TCPA plaintiff alleging some 290 unwanted autodialed calls to her cell phone did not demonstrate “concrete injury” sufficient to confer Article III standing under Spokeo v. Robins. A copy of the opinion in Romero v. Department Stores National Bank et al is available here:  Link to Opinion. The plaintiff failed to make payments to her credit card, and started to receive collection calls. The defendant creditors allegedly called the plaintiff on her cellular telephone more than 290 times using an automated telephone dialing system (ATDS) over the course of six months…

6th Cir. BAP Holds In Rem Foreclosure Not Disguised In Personam Collection Effort

The Bankruptcy Appellate Panel of the Sixth Circuit recently held that a condominium unit owners association did not violate a debtor’s Chapter 7 discharge order by scheduling a sheriff’s sale to complete a prepetition foreclosure. Rejecting the bankruptcy court’s conclusion that the in rem foreclosure sale was scheduled to induce payment of discharged pre-petition condominium fees, the Sixth Circuit BAP noted that “all foreclosure litigation potentially can induce payments of discharged debt to avoid a foreclosure sale.” Accordingly, the Sixth Circuit BAP held that the foreclosure was not a disguised in personam collection effort, and that the denial of foreclosure…

7th Cir. Deepens Split on FDCPA Liability for ‘Time-Barred’ Claims

Filing a proof of claim with a bankruptcy court representing a debt subject to an expired state law limitations period does not violate the federal Fair Debt Collection Practices Act (FDCPA) under an opinion released yesterday from the Seventh Circuit Court of Appeals. Under the ruling, in Owens v. LVNV, the Seventh Circuit joins the Eighth Circuit Court of Appeals in rejecting the Eleventh Circuit’s holding under Crawford v. LVNV that such proofs of claim violate the FDCPA. A copy of the opinion is available at:  Link to Opinion. In this consolidated appeal of three cases, debt purchasers or their attorneys had…

Court Affirms Dismissal of Crawford Case for FDCPA ‘Time-Barred’ Proof of Claim, Case Was Itself ‘Time-Barred’

On July 10, 2014, the United States Court of Appeals for the Eleventh Circuit issued its opinion in Crawford v. LVNV Funding, LLC. That opinion began by decrying the “deluge” of proofs of claim filed by debt buyers on debts that are unenforceable under state statutes of limitations. It ended by holding that the filing of a “stale” claim in bankruptcy violates the Fair Debt Collection Practices Act. As expected, the Eleventh Circuit’s opinion led to another sort of deluge: numerous FDCPA claims based upon the filing of proofs of claim or other collector conduct in bankruptcy. While courts across…

Fla. App. Court Holds Florida ‘Notice of Assignment of Debt’ Not Applicable to Mortgage Lenders or Foreclosures

The District Court of Appeal of Florida, Second District, recently reversed a final summary judgment in borrowers’ favor, holding that section 559.715 of the Florida Consumer Collection Practices Act (FCCPA) does not apply to the holder of the note and is not an affirmative defense to foreclosure actions because it does not create a condition precedent to an action to foreclose the mortgage and enforce the note. A copy of the opinion in Deutsche Bank National Trust Company v. Hagstrom is available at:  Link to Opinion. A mortgagee filed a foreclosure action, attaching to the complaint a note and an allonge bearing…