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Posts tagged as “Ninth Circuit”

9th Cir. Bankruptcy Panel Affirms Dismissal of ‘Wrongful Securitization’ Allegations

The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of an adversary proceeding without leave to amend, holding that: (a) the debtors failed to state a claim for wrongful foreclosure under California law; (b) the debtors failed to state a claim for breach of contract or breach of the implied covenant of good faith and fair dealing because they were not third-party beneficiaries of the pooling and servicing agreement; (c) the debtors failed to state a claim for breach of the deed of trust or breach of the implied covenant of…

SCOTUS Holds Class Plaintiffs Cannot Voluntarily Dismiss Claims to Appeal Denial of Class Cert

The Supreme Court of the United States recently held that class action plaintiffs cannot stipulate to a voluntary dismissal with prejudice, then appeal the trial court’s prior interlocutory order striking their class allegations because a voluntary dismissal does not qualify as a “final decision” under 28 U.S.C. §1291 and improperly circumvents Federal Rule of Civil Procedure 23(f). A copy of the opinion in Microsoft Corp. v. Baker et al. is available at:  Link to Opinion. A group of purchasers of Microsoft’s Xbox 360 gaming console filed a putative class action alleging that the Xbox was designed defectively because it scratched…

9th Cir. Holds City of LA’s FHA ‘Discriminatory Lending’ Claims Failed for Lack of ‘Robust’ Causal Link

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court’s summary judgment ruling in favor of a bank and against the City of Los Angeles on the City’s claims that the bank violated section 3605(a) of the federal Fair Housing Act (FHA) through alleged discriminatory lending practices, and that the bank was unjustly enriched. A copy of the opinion in City of Los Angeles v. Wells Fargo & Co. is available at:  Link to Opinion. As you may recall, section 3605(a) of the FHA makes it unlawful for financial institutions “to discriminate against any person in…

9th Cir. Amends, Reinforces Its Ruling that Foreclosure Trustees Are Not FDCPA ‘Debt Collectors’

The U.S. Court of Appeals for the Ninth Circuit recently amended its opinion in Ho v. ReconTrust Co., maintaining and affirming its prior ruling that the trustee in a California non-judicial foreclosure did not qualify as a debt collector under the federal Fair Debt Collection Practices Act (FDCPA). The amendments to the prior ruling among other things add that a California mortgage foreclosure trustee meets the FDCPA’s exclusion from the term “debt collector” for entities whose activities are “incidental to … a bona fide escrow arrangement” at 15 U.S.C. § 1692a(6)(F). The Ninth Circuit also removed its prior discussion of…

9th Cir. Applies Anti-Deficiency Protections to Debtors’ Bankruptcy Estate Where Property of Estate is Sold in Non-Judicial Foreclosure

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the Bankruptcy Appellate Panel’s determination that a creditor’s pre-bankruptcy, non-recourse lien on two debtors’ real property is extinguished following a non-judicial foreclosure sale. A copy of the opinion in In re: Salamon is available at:  Link to Opinion. In April 2009, two debtors purchased real property.  Rather than fund the purchase price and pay off the two existing liens on the real property, the debtors executed a wrap-around mortgage in favor of the property seller.  The debtors then funded the balance of the purchase price with a note secured…

9th Cir. Holds Consolidated ‘Bellweather Trial’ of Multiple Actions Did Not Meet CAFA’s ‘Mass Action’ Requirements

The U.S. Court of Appeals for the Ninth Circuit recently affirmed that consolidating multiple actions for pre-trial purposes and a bellweather-trial process is insufficient to justify the removal of those actions to federal court under the “mass action” provision of the Class Action Fairness Act (CAFA). In doing so, the Ninth Circuit rejected several arguments the removing defendant made based on language contained in the plaintiffs’ motion to consolidate.  The Court concluded that even though, as consolidated, the matters satisfied the numerosity requirement of a “mass action” under CAFA, the plaintiffs did not intend a joint trial for all of…

9th Cir. Rejects Debtor’s Attempt to Avoid SBA Judgment by Disclaiming Inheritance

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court’s judgment in favor of the U.S. Small Business Administration in a Federal Debt Collection Procedures Act (FDCPA) lawsuit the SBA filed against a loan guarantor to satisfy a default judgment assigned to it after the guarantor disclaimed an inheritance to avoid paying the judgment. The Federal Debt Collection Procedures Act, 28 U.S.C. §3001 et seq., which governs the collection of money owed to the U.S. government, should not be confused with the federal Fair Debt Collection Practices Act, which is found at 15 U.S.C. §1692 et…

9th Cir. Holds Mortgagee’s ‘Sold Out Second’ Claim Not Barred by California’s 4-Year Statute of Limitations

The U.S. Court of Appeals for the Ninth Circuit recently reversed a ruling that disallowed an unsecured creditor’s claim filed in a California bankruptcy court based on the forum state’s statute of limitations. In so ruling, the Ninth Circuit held that, although courts typically apply the forum state’s statute of limitations if the contract is silent on the issue, exceptional circumstances warranted the application of a longer statute of limitations here, because the creditor had no option but to enforce its claim in the forum based on where the bankruptcy petition was filed. A copy of the opinion in PNC…

9th Cir. Holds FDCPA §1692f(6) Applies to Non-Judicial Foreclosures

The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a Fair Debt Collection Practices Act claim arising out of a non-judicial foreclosure.  The Ninth Circuit ruled that section 1692f(6) of the FDCPA applies to non-judicial foreclosure activity. A copy of the opinion in Dale Dowers v. Nationstar Mortgage, LLC is available at:  Link to Opinion. Two borrowers refinanced a loan secured by their home and executed a note and deed of trust.  The lender assigned the note to a purchaser of the subject loan (the “loan owner”).  Later, the lender assigned the deed of trust…

9th Cir. Holds Servicer May Have Violated UDAP by Soliciting Trial Mod Payments After Determining Borrower Ineligible

The U.S. Court of Appeals for the Ninth Circuit recently reversed an award of summary judgment in favor of a mortgage loan servicer, holding that the evidence could support a verdict that the servicer engaged in an unfair business practice by accepting trial modification plan payments when it had previously determined the borrower was not eligible for a loan modification. A copy of the opinion Oskoui v. J.P. Morgan Chase Bank, N.A. is available at:  Link to Opinion. A borrower defaulted on her mortgage loan, and later applied for a loan modification.  The mortgage loan servicer sent her a letter…

9th Cir. Holds TCPA Revocation of Consent Must Be Clearly Expressed

The U.S. Court of Appeals for the Ninth Circuit recently held that under Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016), a consumer alleged a concrete injury sufficient to confer Article III standing to pursue a Telephone Consumer Protection Act claim for alleged nonconsensual text messages. In so ruling, the Court held that a consumer may revoke his or her consent, but must clearly express that he or she does not want to receive the messages or calls. The Court concluded that, in this case, the consumer gave prior express consent to receive the…

9th Cir. Limits Scope of FDCPA ‘Enforcement of Security Interest’ Exception

The U.S. Court of Appeals for the Ninth Circuit recently held that a notice regarding overdue homeowners association (HOA) assessments contained language that overshadowed and conflicted with the homeowner’s federal Fair Debt Collection Practices Act debt validation rights. Limiting the scope of its ruling in Ho v. ReconTrust Co., NA, 840 F.3d 618, 620 (9th Cir. 2016), the Court rejected the debt collector’s argument that in sending the notice regarding overdue HOA assessments, it merely sought to perfect a security interest and was therefore subject only to the limitations under 15 U.S.C. § 1692f(6). A copy of the opinion in…