The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a consumer’s complaint alleging that a collection letter violated the federal Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq., by failing to meaningfully convey the name of his creditor, as required. In so ruling, the Eleventh Circuit concluded that dismissal was appropriate because the consumer did not claim that the collector misidentified his creditor, and the ‘least sophisticated consumer’ who had been a patient at a hospital would surely understand the hospital to be the creditor when its name was listed next to the…
Posts tagged as “Eleventh Circuit”
The U.S. Court of Appeals for the Eleventh Circuit recently held that a mortgage loan with a post-plan maturity date was not discharged in a Chapter 13 bankruptcy because the plan did not “provide for” the debt and modify the repayment terms of the mortgage. The Eleventh Circuit also held that the debt was not discharged because discharge would violate 11 U.S.C. § 1322(b)(2)’s anti-modification provision for mortgages secured by the debtor’s principal residence. A copy of the opinion in Mildred M. Dukes v. Suncoast Credit Union is available at: Link to Opinion. The debtor had two mortgage loans on her…
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a class settlement where the defendant allegedly violated the federal Fair and Accurate Credit Transactions Act (FACTA) by printing point-of-sale credit card receipts that included more than the last five digits of the card number. In so ruling, and over the objections of two class members, the Eleventh Circuit held that : Consistent with similar prior rulings from other federal appellate courts, the named plaintiff had Spokeo standing to pursue the claims, because the FACTA claims were similar to the common law tort of breach of confidence; and Class…
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of consolidated putative class action cases against mortgage loan servicers and an insurance company, holding that the filed-rate doctrine barred the plaintiffs’ claims. A copy of the opinion in Pankaj Patel, et al v. Specialized Loan Servicing, LLC, et al is available at: Link to Opinion. The plaintiffs in the two trial court cases, consolidated on appeal, alleged that their mortgage loan servicers breached the loan documents and the implied covenant of good faith and fair dealing by supposedly overcharging for “force-placed” insurance (FPI) when the borrowers failed…
The U.S. Court of Appeals for the Eleventh Circuit recently rejected an attempt by homeowners to collaterally attack a state court mortgage foreclosure judgment, affirming the trial court’s dismissal of an amended complaint with prejudice for failure to state a claim, but on alternative grounds. More specifically, the Court upheld the dismissal on the grounds that, “by attempting to prosecute an incomprehensible pleading to judgment, the plaintiffs obstructed the due administration of justice” in the trial court, and by trying to defend the fatally defective complaint on appeal. The Court also ordered plaintiffs’ counsel to show cause why he should…
The U.S. Court of Appeals for the Eleventh Circuit held that 12 U.S.C. § 1715z-20(j) did not alter or limit the lender’s right to foreclose under the terms of the valid reverse mortgage contract where the non-borrower spouse was still living in the home. Accordingly, the Eleventh Circuit affirmed the trial court’s dismissal of the plaintiff’s petition for injunctive relief to prevent the foreclosure sale. A copy of the opinion in The Estate of Caldwell Jones, Jr. v. Live Well Financial, Inc. is available at: Link to Opinion. A borrower obtained a reverse mortgage that was subsequently assigned to the defendant…
The U.S. Court of Appeals for the Eleventh Circuit recently held that the reporting of a mortgage account as past due and delinquent during a forbearance plan was neither inaccurate nor materially misleading under the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq. A copy of the opinion in Felts v. Wells Fargo Bank, N.A. is available at: Link to Opinion. The plaintiff borrower lost her job and enrolled in an unemployment forbearance plan with her mortgage loan servicer. The forbearance plan called for “monthly forbearance plan payments” of $25 for a period of six months. The…
In an unpublished opinion, the U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court’s order denying an auto finance company’s motion to compel arbitration pursuant to the terms of a retail installment sales contract with a consumer. In so ruling, the Eleventh Circuit concluded that the consumer’s TCPA claims were an independent cause of action based on rights created under the TCPA, and not subject to the arbitration provision that only covered disputes arising from or related to the agreement or the motor vehicle collateral. A copy of the opinion in Hope Gamble v. New England…
The U.S. Court of Appeals for the Eleventh Circuit recently vacated a trial court’s dismissal of a mortgagee’s deficiency claims and remanded to the trial court to determine whether the voluntary dismissal of a bankrupt debtor’s Chapter 11 case without a discharge had any effect on the mortgagee’s right to pursue its pre-petition deficiency claims. A copy of the opinion in First National Bank of Oneida, N.A. v. Brandt is available at: Link to Opinion. The debtor, a real estate investor and developer, filed a Chapter 11 bankruptcy case in July 2009 after he defaulted on a series of real estate loans. The…
In an action against a Florida consumer plaintiffs’ firm that also functions as consumer bankruptcy debtors’ counsel, the U.S. Court of Appeals for the Eleventh Circuit recently held that a bankruptcy attorney violates section 526(a)(4) of the Bankruptcy Code if he instructs a client to pay his legal fees using a credit card. In so ruling, the Court held that there is no requirement under the statute that the advice be given for an invalid purpose designed to manipulate the bankruptcy process. A copy of the opinion in Loyd P. Cadwell v. Kaufman, Englett & Lynd, PLLC is available at: Link…
The U.S. Court of Appeals for the Eleventh Circuit recently held that a bank could not enforce an arbitration clause inserted into an amended customer account agreement during the pending litigation incident to the sale and acquisition of the bank, because the plaintiff was actively opposing arbitration and the bank failed to notify the plaintiff’s counsel and the court of the purportedly “court-evicting” amendment. In so ruling, the Eleventh Circuit concluded that the bank “failed to demonstrate the requisite meeting of the minds to support a finding that the parties agreed through the February 2013 amendment to arbitrate their then-pending…
11th Cir. Rejects Challenge to Debtors’ Ability to Recover Attorney’s Fees in Stay Violation Actions
11th Cir. Rejects Challenge to Debtors’ Ability to Recover Attorney’s Fees in Stay Violation Actions
The U.S. Court of Appeals for the Eleventh Circuit recently held, in a case of first impression, that “the Bankruptcy Code authorizes payment of attorneys’ fees and costs incurred by debtors in successfully pursuing an action for damages resulting from the violation of the automatic stay and in defending the damages award on appeal.” A copy of the opinion in Mary Beth Mantiply v. Patricia Nelson Horne is available at: Link to Opinion. Husband and wife filed for Chapter 7 bankruptcy in 2011 and received a discharge five months later. The husband passed away and his daughter was substituted as personal…