In Arrasola v. MGP Motor Holdings, LLC, 3D15-381, 40 Fla. L. Weekly D1837b (Fla. 3d DCA August 5, 2015) the Florida Third District Court of Appeal was asked to resolve whether a court or an arbitrator should decide if an automobile purchase agreement containing an arbitration provision was abandoned or terminated by the parties and/or whether or not the arbitration provision itself was unconscionable. While it has become common place for arbitration agreements themselves to contain provisions which give questions of enforceability and arbitrability to the arbitrator, the ...

Posted in: Arbitration, Florida

The opinion of Florida's Third District Court of Appeal in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) has been a lightning rod for criticism from federal courts in Florida. The opinion, which holds that only a dismissal with prejudice will serve to reset the statute of limitations for mortgage foreclosure following a failed foreclosure attempt, has already been rejected by three separate opinions of United States District Courts in Florida. See LNB-017-13, LLC v. HSBC Bank USA, No. 1:14-CV-24800-UU, 2015 WL 1546150 (S.D ...

Numerous states have adopted statutory bans on "unfair" or "deceptive" trade practices. When state legislatures enacted those statutes, most of them decided to let consumers sue directly for damages. However, many state legislatures also barred consumers from bringing class actions under those state consumer-protection statutes. See, e.g., Ala. Code § 8-9-10(f) (barring class actions under Alabama's Deceptive Trade Practices Act); O.C.G.A. § 10-1-399(a) (barring class actions under Georgia's Fair Business Practices Act); Miss. Code § 75-24-15(4) (barring class ...

Posted in: Class Action
Most constitutional challenges to agency action arise as a defense to an enforcement action. However, State National Bank of Big Spring, Texas (the "Bank") has led a constitutional challenge to the very existence and structure of the Consumer Financial Protection Bureau ("CFPB") from day one. The CFPB was created by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The Bank's ambitious challenge to the constitutionality of the CFPB is rooted in five core arguments: 1) as an independent agency, the CFPB could not be headed by one person, Director Richard Cordray ...
Posted in: CFPB, Dodd-Frank Act

Florida's Third District Court of Appeal shocked many court watchers with its opinion in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) when it created a split of authority on Florida's statute of limitations for mortgage foreclosure. Before Beauvais, Florida's case law was consistent that a dismissal, be it with or without prejudice, permitted new non-time-barred causes of action for foreclosure to accrue based upon post-dismissal breaches of mortgage covenants. See Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d ...

In Haynes v. McCalla Raymer, LLC, No. 14-14036, __ F. 3d __, 2015 WL 4188459 (11th Cir. July 13, 2015), the Eleventh Circuit Court of Appeals affirmed the Northern District of Georgia's grant of summary judgment in favor of Bank of America, N.A. ("BANA") on the mortgagors' wrongful foreclosure claim. The court held that the mortgagors lacked standing to challenge any alleged deficiencies in the assignment of the security deed from MERS to BANA and that the borrowers' own default, rather than any alleged defect in the foreclosure notice, led to the foreclosure. With respect to the ...

On Tuesday, the Eleventh Circuit Court of Appeals expanded the scope of conduct that is actionable under the Fair Debt Collection Practices Act ("FDCPA") to include communications directed to a debtor's attorney. However, the Court also said that such communications may not be actionable under a "least sophisticated consumer" standard and that a plaintiff may have to hurdle a higher bar to establish a violation. In Miljkovic v. Shafritz and Dinkin, P.A., et al., No. 8:14-cv-00635-VMC-TBM, 2015 WL 3956570 (11th Cir. 2015), the plaintiff debtor brought suit against debt ...

This case arose from a dispute regarding where housing for low-income persons should be constructed in Dallas, Texas-that is, whether low-income housing projects that received government tax credits should be built in the predominantly white suburbs or the predominantly minority-represented inner city. The case was founded on a disparate impact theory of liability. In contrast to a disparate treatment theory, where a plaintiff must establish that the defendant employed a discriminatory intent or motive, a disparate impact claim challenges practices that have a ...

In Sas v. Federal National Mortgage Ass'n., No. 2D14-1003, 2015 WL 3609508 (Fla. 2d DCA June 10, 2015) the appellate court was faced with the issue of whether there was a requirement that the records custodian of the current loan servicer have personal knowledge of the manner in which the prior loan servicer maintained and created its business records in order for the records to be introduced into evidence under section 90.803(6), Fla. Stat. During the hearing on damages before the trial court, the current loan servicer, Seterus, had its records custodian testify that: he was familiar ...

Posted in: Uncategorized
In a ruling that may signal the end to much of the litigation over mortgage-backed securities, New York's highest court held limitations for breach of warranty litigation over portfolio loans run from the MLSA closing date and not from breach of the contractual repurchase obligation. Many investors have argued that a sponsor's obligation to repurchase non-conforming loans constitutes a separate "springing" obligation 150 days after notice of a non-conforming loan (60 for cure, then 90 for repurchase). The Court rejected that notion, in favor of its long-standing preference ...
Posted in: Uncategorized
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