On June 12, 2017, the Supreme Court in Henson v. Santander Consumer USA Inc. unanimously held that a debt buyer is not a "debt collector" as defined by the Fair Debt Collection Practices Act ("FDCPA") if it is regularly collecting debts that it owns, even if the debts were originated by a third party and purchased after default. Rather, according to the plain text of the statutory definition at issue, a debt buyer must be collecting debts owned by (and owed to) a third party in order to be considered a "debt collector" and therefore subject to the FDCPA.
The Court's analysis examined the ...
What You Can Learn about Vendor Management from the DocuSign Breach
While some industries may get away with the "trust but verify" model, heavily regulated industries such as financial services have no such luxury. Trust no one-you can't afford to.
Last week, DocuSign, one of the most frequently used electronic signing services, reported a data breach involving phishing emails being sent to its customers. While inside the DocuSign system, criminals stole possibly more than 100 million emails to use as targets in a phishing email campaign. Wrong-doers sent emails to customers with ...
In Midland Funding, LLC v. Johnson, No. 16-348 (May 15, 2017), the U.S. Supreme Court held that a debt collector does not run afoul of the FDCPA by filing a proof of claim in bankruptcy on a stale debt. In its 5-3 decision, the Court sided with the majority of the federal courts of appeals to have considered the issue and reversed the Eleventh Circuit Court of Appeals, which had held that filing a proof of claim on a debt for which the statute of limitations had expired amounted to a "false," "deceptive," "misleading," "unconscionable," and "unfair" means of debt collection.
The case arose ...
In Helman v. Bank of America, 15-13672, 2017 WL 1350728 (11th Cir. April 12, 2017) the Eleventh Circuit Court of Appeal clarified important issues regarding the use of periodic mortgage statements after a bankruptcy discharge. In Helman the debtor sued Bank of America after he received a periodic mortgage statements required by the Truth in Lending Act for his mortgage which he had discharged in bankruptcy. The statements he received were qualified by Bank of America in important ways, including being labeled as "FOR INFORMATIONAL PURPOSES" and containing a disclosure that Bank of ...
Florida's Fourth DCA issued an opinion on April 12, 2017 in Nationstar Mortgage LLC v. Glass, No. 4D15-4561, following suit with the Third and Fifth DCAs in denying a borrower's motion for attorney's fees based on a provision in the subject mortgage after the borrower successfully argued for the dismissal of the foreclosure action on the basis that the plaintiff lacked standing to foreclose.
Ann Marie Glass ("Glass") obtained a dismissal with prejudice of Nationstar Mortgage LLC's ("Nationstar") amended foreclosure complaint in the lower tribunal. See Glass, at 1. Nationstar ...
Third party purchaser lacks standing to participate in foreclosure proceeding, absent assertion of intention to redeem the property.
After the Second District Court of Appeal issued a per curiam affirmance of the entry of final judgment of foreclosure in favor of the bank, Judge Sleet issued a specially concurring opinion in which he concluded that because the appellant was a third party purchaser of the property who was not obligated on the note and mortgage, it was "questionable" whether she had standing to challenge the bank's foreclosure proceeding in the first place. Pealer v ...
The West Virginia Senate Judiciary Committee and the West Virginia Senate recently approved amendments to the West Virginia Consumer Credit and Protection Act ("WVCCPA"), West Virginia Code §§ 46A-1-101 et seq, which was last amended in 2015. While the original versions of the senate bills sought to make the WVCCPA more similar to the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., the committee substitute of S.B. 563 includes only minor amendments. Among other things, the proposed amendments:
- Clarify how notice of attorney representation must ...
On March 16, 2017, the Florida Supreme Court denied motions for rehearing and/or clarification filed by petitioners Lewis Brook Bartram, the Plantation at Ponte Vedra, and Gideon M.G. Gratsiani. All three petitioners requested the Florida Supreme Court reconsider or clarify its landmark November 3, 2016 opinion in Bartram v. U.S. Bank, N.A., SC14-1266, 2016 WL 6538647. The Florida Supreme Court's opinion in Bartram holds that the involuntary dismissal of a prior foreclosure action, be it with or without prejudice, does not prevent the filing of a subsequent foreclosure action ...
On March 1st, Florida's Third District Court of Appeal affirmatively held that a mortgage holder who fails to prove its standing to foreclose is not liable to a defendant borrower for prevailing party attorney's fees. The Fitzgerald holding is succinct but immensely significant: "[b]ecause [the Borrower] successfully obtained a judgment below that the [Plaintiff] lacked standing to enforce the subject mortgage and note against her . . . no contract existed between the [Plaintiff] and [Borrower] that would allow [the Borrower] to invoke the reciprocity provisions of Section ...
Since Spokeo v. Robins, 136 S. Ct. 1540 (2016), as revised (May 24, 2016), the consumer finance industry has continued to refine what it means to allege a concrete injury in fact and to meet Article III case and controversy requirements where statutory rights are alleged to have been violated. In Spokeo, the Supreme Court made clear that a "concrete" injury is necessary to confer Article III standing yet, the palpability of the injury alone does not dictate whether the injury is sufficiently concrete to confer standing--leaving room for "concrete" yet intangible injuries as a basis for ...