In Dang v. Bank of America, N.A., et al., 2013 WL 1683820 (D.Md. Apr. 17, 2013), the federal district court for the District of Maryland, on appeal of two orders from the United States Bankruptcy Court for the District of Maryland, found the bankruptcy court possessed jurisdiction and authority to dismiss Dang's claims against Bank of America and related entities in the adversary proceeding. Dang was familiar with the bankruptcy process. Between May 2009 and March 2010, she filed bankruptcy three times. Her bankruptcies originated with the execution of a promissory note and deed of ...
In Wells Fargo Bank v. Bohatka, et al., 38 Fla. L. Weekly D885a (Fla. 1st DCA April 22, 2013), the Florida First DCA reversed dismissal with prejudice of a residential foreclosure complaint. While the appellate court agreed that dismissal of the complaint was proper, it held that dismissal with prejudice was not. The trial court erred by going beyond the four corners of the complaint on the borrowers' motion to dismiss. In its foreclosure complaint, Wells Fargo alleged that it was the owner and holder of the subject promissory note and mortgage by virtue of an equitable transfer which ...
The District Court for the Eastern District of Michigan recently held that a debt collector's accusation during a telephone call that the debtor was "lying" was sufficient to state a claim under the harassment and abuse provisions of the Federal Debt Collection Practices Act. In Summers v. Merchants & Medical Credit Corp., 2013 WL 1507529, the Debtor-Plaintiff alleged that a representative of Defendant Merchants & Medical Credit Corporation accused her of "not being honest" and specifically accused her of "lying" about her job during a conversation in which the agent attempted to ...
In Riddle v. Bank of America Corp., et al., 2013 WL 1482668 (E.D. Pa. Apr. 11, 2013), the federal district court for the Eastern District of Pennsylvania held plaintiffs' allegation that the defendants actively concealed a reinsurance kickback scheme was sufficient to equitably toll the running of RESPA's one-year statute of limitations and, as such, that plaintiffs' RESPA claim could survive dismissal.
The plaintiffs filed a putative RESPA class action suit against Bank of America and various mortgage insurers claiming that the defendants engaged in an illegal scheme whereby ...
In Zaborowski v. MHN Gov't Services, Inc., 2013 WL 1363568 (N.D. Cal. April 3, 2013), the Northern District of California held that an employment contract arbitration agreement, which incorporated the filing fee schedule set forth in the rules of the American Arbitration Association ("AAA"), was unconscionable. The Zaborowski plaintiffs brought a class action lawsuit against their employer seeking damages in excess of $75,000, alleging that the employer had deprived them of overtime compensation by misclassifying them as independent contractors rather than employees. The ...
In Suzanne Hill, et al. v. Midland Funding, LLC, et al., No. 1:12-cv-02397-CCB (D.MD. Apr. 16, 2013), Plaintiffs brought a putative class action against Midland Funding LLC (Midland) alleging violations of the Fair Debt Collection Practices Act (FDCPA), the Maryland Consumer Debt Collection Act (MCDCA) and the Maryland Consumer Protection Act (MCPA). In support of their claims, Plaintiffs contend that Midland violated the FDCPA when it filed collection law suits against them listing the address of its parent company, an address at which the stated plaintiff in each lawsuit was ...
Two recent federal court decisions involving claims under the Fair Debt Collection Practices Act ("FDCPA") highlight why FDCPA defendants should not overlook the most basic elements of an FDCPA claim in forming their defense. In both of these cases, the courts dismissed the plaintiffs' claims for failure to allege that the defendants were "debt collectors." See Hunt v. U.S. Bank, N.A., et al., 2013 WL 1398964 (C.D. Cal. Apr. 3, 2013); Izmirligil v. Bank of New York Mellon, et al., 2013 WL 1345370 (E.D.N.Y. Apr. 2, 2013). Both the Hunts and Izmirligil brought FDCPA claims against a ...
In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 1283885, 11-CV-61936 (S.D. Fla. March 27, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida issued an important opinion concerning the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C § 227(b)(1)(A)(iii), in a case dealing with one of the more troubling trends in TCPA litigation - efforts to hold individual officers or stakeholders of TCPA defendants individually liable. In Mais, Jack W. Brown III ("Brown") was named a defendant in a putative TCPA class action. Brown was allegedly the ...
In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 1283881, 11-cv-61357 (S.D. Fla. March 26, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida certified a Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii), and Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § § 1692e(11) and 1692d(6), class action over the objection of the Defendant. The Defendant objected to the Plaintiff's standing on both Article III constitutional grounds and based upon the alleged lack of statutory standing under the TCPA. The ...
In Joy v. MERSCORP, Inc., No. 5:10-CV-218-FL, 2013 WL 1246856 (E.D.N.C. Mar. 27, 2013), the Eastern District of North Carolina held that a borrower stated a claim for a violation of the FDCPA against a loan servicer in connection with documents filed in foreclosure proceedings. The plaintiff sued several defendants alleging a violation of § 1692e of the FDCPA claiming that the defendants filed false, deceptive, and misleading documents in connection with foreclosure proceedings. Nationwide Trustee Services, Inc. ("Nationwide") moved for a judgment on the pleadings, and Litton ...
Judge Donald Middlebrooks recently dismissed a plaintiff's "permissible purpose" claim under the Fair Credit Reporting Act ("FCRA") where the alleged facts showed that the defendant/creditor was attempting to collect a debt and had a good faith belief that the account belonged to the plaintiff. In Little v. Asset Acceptance, Case No. 9:12-cv-81116 (S.D. Fla.), Carole Little filed suit against Asset Acceptance, LLC, claiming that Asset had no permission to access her credit report, that she had never applied to Asset for credit, and that she does not maintain a credit account with ...
The Tenth Circuit recently held that a borrower presented sufficient evidence of actual damages to sustain a FCRA claim against a loan servicing company. The Tenth Circuit also affirmed the district court's decision to dismiss the FCRA claim with respect to a willful violation and the FDCPA claim. In Llewellyn v. Allstate Home Loans, Inc., --- F.3d ---, 2013 WL 1238615 (10th Cir. Mar. 28, 2013), the plaintiff filed suit against a loan servicing company and law firm retained to commence foreclosure proceedings alleging violations of the FDCPA, FCRA, and state law. The district court ...
A federal court in Illinois recently denied a motion for class certification of a TCPA claim due to the predominance of individualized issues of proving whether the putative class members had consented to the defendant's phone calls. The case illustrates the point that defining a class to include only those debtors who had not provided their phone numbers to the original creditor in a transaction does not always eliminate the individualized nature of the issue of consent. In the case, Jamison v. First Credit Services, Inc., 2013 WL 1248306 (N.D. Ill. Mar. 28, 2013), the named plaintiff ...
In O'Bryne v. Portfolio Recovery Associates, Inc., No. cv447-IEG (NLS), 2013 WL 1223590 (S.D. Cal. Mar. 26, 2013), the Southern District of California held that a debt collector did not violate the Fair Debt Collection Practices Act ("FDCPA") by seeking to collect principal, interest, and fees in a collection lawsuit under the common law theories of account stated and assumpsit. The defendant in O'Bryne, a debt collector, filed suit in California state court against the plaintiff-debtor seeking to recover a debt under various common law theories. The debtor subsequently brought ...
In Campbell v. Credit Protection Ass'n, L.P., No. 4:12CV00289AGF, 2013 WL 1282348 (E.D. Mo. Mar. 27, 2013), the Eastern District of Missouri granted summary judgment in favor of a debt collector on a debtor's claims under the Fair Debt Collection Practices Act ("FDCPA") based upon the debt collector's collection letter and credit reporting activities, holding that a debtor must come forward with evidence beyond self-serving allegations to avoid summary judgment. The defendant in Campbell, a debt collector named Credit Protection Association, sent the plaintiff-debtor a ...
In Stinson v. Receivables Management Bureau, Inc., No. 2:12-cv-02558, 2013 WL 1278966 (N.D. Ala. Mar. 26, 2013), an Alabama federal court recently held that a debt collector's telephone calls made to a non-debtor did not violate the FDCPA when the actual debtor provided the telephone number and the non-debtor plaintiff failed to inform the debt collector of the error. Plaintiff Jesse Stinson filed suit against Receivables Management Bureau, Inc. ("RMBI") alleging violations of the FDCPA and state law after RMBI made several telephone calls to his house attempting to collect a debt ...
Claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., which prohibits, among other things, companies from calling an individual's cell phone without prior consent, often involve discovery requests for call logs and call reports. Recently, a California federal court held that a defendant may be required to produce this information even in the pre-certification stages of a class action suit. In a recent case, Knutson v. Schwan's Home Service, Inc., No. 12-cv-964-GPC, 2013 WL 1222116 (S.D. Cal. Mar. 25, 2013), the parties filed a document entitled ...
In Webb et al. v. Midland Credit Management, Inc. et al., 2013 WL 1285570 (N.D. Ill. Mar. 27, 2013), the Northern District of Illinois held that a plaintiff cannot state a claim under the Fair Debt Collection Practices Act ("FDCPA") merely by alleging that a debt collector sought to collect a greater amount in a settlement letter than it sought to collect in a subsequent collection lawsuit. Rather, a plaintiff must specifically allege a factual basis for why the "inflated" amount is false, deceptive, or misleading. The plaintiffs in Webb brought a class action lawsuit under the FDCPA ...
The Florida Fourth DCA opinion in Shahar v. Green Tree Servicing, 38 Fla. L. Weekly D563d (Fla. 4th DCA March 6, 2013) demonstrates the dangers of inadequately addressing each and every affirmative defense raised by a foreclosure defendant. In Shahar, the appellate court reversed the trial court's entry of summary judgment where the lender did not factually or legally refute the defendants' unclean hands defense. The defendants' Verified Amended Answer, Affirmative Defenses and Counterclaim included allegations that the lender had engaged in a variety of inequitable and ...
John Chiles and Zachary Miller were recently published in the American Bar Association's The Business Lawyer (Vol. 68, No. 2) with an article entitled: The Supreme Court Settles a Decade-Long Debate -- 2012 Survey of RESPA Developments. The article highlights important decisions issued by U.S. federal courts addressing the Real Estate Settlement Procedures Act ("RESPA") during 2012. Of particular importance is the Supreme Court's decision in Freeman v. Quicken Loans, Inc., 132 S.Ct. 2034, --- U.S. ---- (2012), in which the Court unanimously settled a long-standing split in ...
The U.S. Supreme Court recently decided that a named class action plaintiff cannot prevent removal by stipulating to seek less than $5 million in damages before class certification, in Standard Fire Ins. Co. v. Knowles, 11-1450, --- U.S. ----, 2013 WL 1104735 (Mar. 19, 2013). The Class Action Fairness Act of 2005 ("CAFA") provides federal district courts original jurisdiction over civil class action lawsuits when "the matter in controversy exceeds the sum or value of $5,000,000." 28 U.S.C.A. § 1332(d)(2). The class must have more than 100 members and those members must be ...
For the first time, a federal court in Alabama addressed preemption under the Dodd-Frank Act. Under the Dodd-Frank Act, subsidiaries and affiliates of national banks can no longer argue that state laws are preempted. While the court held that the Dodd-Frank Amendment did not apply retroactively and found that the plaintiffs' claims were preempted, it noted the changed status of subsidiaries and affiliates of national banks in light of the Dodd-Frank Amendment. In Selman v. CitiMortgage, the plaintiffs filed suit against their mortgage loan servicer, the investor, and the insurer ...