The U.S. Court of Appeals for the Sixth Circuit recently reversed the dismissal of a breach of contract claim in a putative class action involving short-term cash advance loans, finding that the contract at issue was ambiguous because it provided two inconsistent definitions of “annual percentage rate” that could not be reconciled. A copy of the opinion in Laskaris, et al. v. Fifth Third Bank is available at: Link to Opinion. The defendant bank created a short-term cash advance program for eligible customers who held checking accounts with the bank. Specifically, the bank would deposit loans up to $1,000 directly…
Posts tagged as “TILA”
The U.S. Court of Appeals for the Fourth Circuit held that a tax payment agreement entered into pursuant to Virginia Code section 58.1-3018 was a consumer credit transaction subject to the federal Truth in Lending Act and Electronic Funds Transfer Act. The Court further ruled that the plaintiff had standing to assert his EFTA claim, because the claim was not merely for “a bare procedural violation,” but instead alleged “a substantive violation of the rights conferred by EFTA.” Accordingly, the Fourth Circuit affirmed the trial court’s denial of the company’s motion to dismiss the TILA and EFTA claims. A copy…
The U.S. Court of Appeals for the Ninth Circuit recently held that Washington’s six-year statute of limitations governing contracts instead of the Truth in Lending Act’s one-year statute of limitations applies to claims to enforce rescission under TILA, after a notice of right to cancel was timely submitted. The Ninth Circuit also held that the trial court should have given the borrowers leave to amend the complaint because the borrower’s rescission claim under TILA was not time barred, and amending the complaint would not be futile. A copy of the opinion in Hoang v. Bank of America is available at: Link…
The U.S. Court of Appeals for the Ninth Circuit held that an online payday lender’s “loan note” violated § 5 of the Federal Trade Commission Act because, although it was “technically accurate,” the lender’s online loan portal made it difficult to discern the loan terms and therefore likely to mislead consumers about the terms of the loan. Accordingly, the Ninth Circuit affirmed the trial court’s summary judgment and relief order in favor of the FTC. A copy of the opinion in Federal Trade Commission v. AMG Capital Management, LLC is available at: Link to Opinion. The defendant owner controlled a series…
The U.S. Court of Appeals for the Eighth Circuit held that the plaintiff borrowers did not offer sufficient evidence to defeat the rebuttable presumption created by the signed acknowledgement that they received the required number of copies of the federal Truth in Lending Act (TILA) notice of right to cancel disclosures. In so ruling, the Court noted that the plaintiff borrowers did not claim personal knowledge of the number of copies of the disclosure provided at closing, but instead relied on the so-called “envelope theory,” which the Court held was inadmissible hearsay. Accordingly, the ruling of the trial court granting…
The U.S. Court of Appeals for the Ninth Circuit recently held that the National Bank Act (NBA) did not preempt California’s state escrow interest law, which requires financial institutions to pay at least 2 percent simple interest per annum on escrow account funds. In so ruling, the Court also held that the federal Truth in Lending Act provisions for escrow accounts, at 15 U.S.C. § 1639d, did not apply to loans originated before the 2013 effective date of the provisions. A copy of the opinion in Lusnak v. Bank of America is available at: Link to Opinion. In July 2008, the…
The U.S. Court of Appeals for the Seventh Circuit recently held that, following the confirmation of a foreclosure sale in Illinois, the only remedy available to a borrower under 15 U.S.C. § 1635 was damages, and therefore the one-year limitation period under 15 U.S.C. § 1640(e) applied and his claims were barred despite the fact that he provided rescission notices within three years of the loan closing, and despite the fact that the parties engaged in back-and-forth communications after the demands were first sent. Accordingly, the Seventh Circuit affirmed the dismissal of the borrower’s claims by the trial court. A…
The U.S. Court of Appeals for the Tenth Circuit recently held that a borrowers’ federal court claim attempting to void a foreclosure sale based on a prior demand to cancel the loan under the federal Truth in Lending Act (TILA) was barred by claim preclusion for failure to raise the issue in a prior state court action. A copy of the opinion in Pohl v. US Bank is available at: Link to Opinion. The plaintiff borrowers refinanced the loan on their home in May 2007. In 2009, the borrowers defaulted on their loan. In March 2010, believing that their lender had…
The U.S. Court of Appeals for the Eighth Circuit recently held that two borrowers’ conclusory affidavits by themselves were insufficient to rebut the presumption of delivery under the federal Truth in Lending Act, 15 U.S.C. § 1635(c), where the borrowers acknowledged in writing at the closing that they received the disclosures required under TILA. A copy of the opinion in Alan Keiran v. Home Capital, Inc. is available at: Link to Opinion. In 2010, before the Supreme Court of the United States’ ruling in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015), the borrowers filed this action…
The Supreme Court of the United States recently held that a state law penalizing merchants for charging a surcharge for credit card payments did not restrict the amount that a store could collect when a buyer paid by credit card (i.e., a regulation on conduct). Instead, the Court held that the state statute regulated how sellers may communicate their prices, and was therefore a regulation on speech subject to First Amendment scrutiny. As you may recall, in Dana’s R.R. Supply v. AG, 807 F.3d 1235 (11th Cir. 2015), the U.S. Court of Appeals for the Eleventh Circuit held that a…
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…
The U.S. Court of Appeals for the Second Circuit recently rejected an interpretation of Spokeo that would preclude all violations of statutorily mandated procedures from qualifying as concrete injuries supporting standing. In so ruling, the Court held that some violations of statutorily mandated procedures might entail the concrete injury necessary for standing where Congress conferred the procedural right to protect a plaintiff’s concrete interests, and where the procedural violation presents a material “risk of real harm” to that underlying concrete interest. A copy of the opinion in Strubel v. Comenity Bank is available at: Link to Opinion. As you may…