A federal court in Washington last week declined to grant summary judgment in favor of OneWest Bank on a Fair Credit Reporting Act ("FCRA") claim where OneWest did not fully investigate account disputes received directly from the consumer and not from a consumer reporting agency. In McDonald v. OneWest Bank, FSB, Case No. C-10-1952RSL, 2013 WL 858187 (W.D. Wash. Mar. 7, 2013), the plaintiff/consumer notified three consumer reporting agencies ("CRAs") he disputed a debt OneWest was reporting on his credit report. He also sent letters directly to OneWest outlining the specific ...
In Prevratil v. Deutsche Bank Nat'l Trust Co., 38 Fla. L. Weekly D569 (Fla. 2d DCA March 8, 2013), the Florida Second District Court of Appeal continue the trend of Florida Appellate Court reversals of over-zealous trial court judges reading more into the requirement in Rule 1.110(b) that foreclosure complaints be verified. Previously, Florida's appellate courts have held that the verification of a foreclosure complaint need not comply with Fla. Stat. 92.525 (requiring attestation that facts "true" without qualification as to the signors knowledge and belief), see Trucap ...
In Caprio v. Healthcare Revenue Recovery Group, LLC, --- F.3d ---, 2013 WL 765169 (3d Cir. Mar. 1, 2013), the U.S. Court of Appeals for the Third Circuit recently held that language in a debt collection letter asking the plaintiff to "please call" if the plaintiff disputed the amount owed violated the debt validation and false representation provisions of the FDCPA. Plaintiff Ray Caprio filed a putative class action against Healthcare Revenue Recovery Group, LLC ("HRRG") alleging violations of § § 1692g and 1692e(10) of the FDCPA based on a collection letter he received that contained ...
As Burr & Forman has offices located in five southeastern states (Alabama, Florida, Georgia, Mississippi and Tennessee), our attorneys have been actively involved in various forms of litigation involving Chinese drywall for the last several years. While standard Chinese drywall lawsuits have involved claims related to construction and products liability, a recent case handled by our financial services litigation attorneys involved the interplay between Chinese drywall and mortgage servicing. In Buckentin v. SunTrust Mortgage Corporation, No. 2:11-cv-00532-RDP, 2013 WL ...
A recent federal court decision, Rogers v. Virtuoso Sourcing Group, LLC, 2013 WL 772865, 12-CV-01511 (S. D. Ind. Feb. 28, 2013) sheds new light on whether the Fair Debt Collection Practices Act ("FDCPA") requires a debt collector to affirmatively undertake to update its credit reporting to reflect a dispute by the consumer concerning the validity of the debt. The District Court for the Southern District of Indiana held that the FDCPA, specifically those provisions found at 15 U.S.C 1692e(8), contains no such affirmative requirement when the dispute is tendered to the debt collector ...
The Tenth Circuit issued an opinion last week in Berneike v. CitiMortgage, Inc., 2013 WL 657032 (10th Cir. Feb. 25, 2013), addressing whether a district court properly dismissed a borrower's Real Estate Settlement Procedures Act ("RESPA") claim against CitiMortgage, Inc. ("Citi"). The subject complaint alleged that CitiMortgage, by failing to respond to multiple qualified written requests ("QWRs"), violated RESPA. On three different occasions in early 2010, the borrower sent a barrage of faxes to Citi, each alleging that Citi was improperly servicing the borrower's ...
The U.S. District Court for the District of Colorado recently decided that an offer of judgment with regard to all claims between a plaintiff and defendant did not moot all of the plaintiff's FDCPA claims pursuant to Rule 68 of the Federal Rules of Civil Procedure, in Orrick v. Midland Credit Management, Inc., No. 11-cv-03133-PAB-KMT, 2013 WL 657877 (D. Colo. Feb. 22, 2013). In Orrick, the plaintiff's complaint alleged the defendant violated the Fair Debt Collection Practices Act ("FDCPA") by communicating information regarding the plaintiff's debt to a credit reporting agency ...
Oratai Culhane v. Aurora Loan Services of Nebraska
United States Court of Appeals
First Circuit
February 15, 2013
Relevant Facts: In April 2006, Culhane refinanced a mortgage on her single family home and delivered a promissory note to Preferred Financial Group, Inc. d/b/a Preferred Mortgage Services (the "Lender" or "Preferred"). Culhane simultaneously executed a mortgage in favor of MERS as nominee for Preferred and Preferred's successors and assigns. After making the loan, Preferred transferred Culhane's note to Deutsche Bank Trust Company Americas ("Deutsche" ...United States Supreme Court
Opinion Date: February 26, 2013
On Tuesday, the Supreme Court of the United States issued an opinion in Marx v. General Revenue Corp., 568 U.S. ___, 2013 WL 673254 (February 26, 2013), holding that "a district court may award costs to prevailing defendants in Fair Debt Collection Practices Act ("FDCPA") cases without finding that the plaintiff brought the case in bad faith and for the purpose of harassment." Id. at 2. 15 U.S.C. § 1692k(a)(3) of the FDCPA allows for the recovery of attorney's fees and costs by a defendant in an ...