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Posts tagged as “California”

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…

CD Calif. Cites Lack of Clear Regulatory Guidance in Dismissing ADA Claims Relating to Website Accommodations for Visually-Impaired

The U.S. District Court for the Central District of California recently dismissed a claim brought under the federal Americans with Disabilities Act (ADA) brought by a visually-impaired plaintiff who alleged that the defendant pizza company’s website did not permit users to complete their purchases using a screen-reading software program.  The plaintiff also alleged that the company’s mobile app did not allow him to access the menu on his iPhone using a particular software. In dismissing the action without prejudice, the Court concluded that there were no regulations clarifying what web accessibility accommodations are required under the ADA.  Thus, the Court…

Calif. App. Court (2nd Dist) Holds Res Judicata Did Not Bar TILA Action Based on Prior Contract Action

The Court of Appeal of California, Second District, recently held the dismissal of a borrower’s breach of contract claim in a prior lawsuit did not bar a claim in a subsequent lawsuit for violation of the federal Truth in Lending Act, 15 U.S.C. § 1601, et seq., even if the breach of contract and TILA claims were based on the same set of underlying facts, because the right to full disclosures under TILA was a distinct primary right from the common law rights in contract. However, although the Appellate Court determined that the dismissal based on the doctrines of res…

Calif. App. Court Rejects Borrower’s HBOR ‘Dual Tracking,’ SPOC Allegations

The Court of Appeals of California, Second Appellate District, recently held that a borrower failed to state a cause of action for alleged violations of the “dual tracking” and “single point of contact” provisions of California’s Homeowners Bill of Rights (HBOR), Calif. Civ. Code, §§ 2923.6, 2923.7, because: (1) the borrower did not allege acceptance of a loan modification agreement within 14 days after receiving it; and (2) the borrower’s allegations demonstrated that the servicer assigned a customer service representative to process the loan modification application. The Court also dismissed the borrower’s allegations of lack of standing to foreclose, illegal…

Calif. App. Court Holds Consumer Properly Rejected Pre-Suit Offer With General Release, Confidentiality Clauses

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.…

CD Calif. Holds Non-Bank Not ‘True Lender’ on Allegedly Usurious Loans Extended in Name of Bank

The U.S. District Court of the Central District of California recently dismissed a borrower's putative class action complaint against a non-bank that supposedly was the "true lender" for allegedly usurious student loans that were extended in the name of a bank.

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…

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…

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…

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…

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…

Calif. App. Court Holds Servicer May Owe Borrower Duty of Care as to Loan Mod Efforts, Loan Owner May Be Liable

The Court of Appeal of the State of California, Sixth Appellate District, recently held that a loan owner may be liable for misrepresentations made by the loan servicer. The Court also held that a loan servicer may owe a duty of care to a borrower through application of the “Biakanja” factors, even though its involvement in the loan does not exceed its conventional role. A copy of the opinion in Daniels v. Select Portfolio Servicing, Inc. is available at:  Link to Opinion. In May 2005, the borrowers obtained an adjustable rate mortgage. In early 2008, the borrowers asked their servicer to…