In Pedro v. Equifax, Inc., --- F.3d ---, 2017 WL 3623926 (11th Cir. 2017), the Eleventh Circuit held that it was not objectively unreasonable for TransUnion, LLC to interpret section 1681e(b) of the Fair Credit Report Act ("FCRA") to allow it report an account belonging to an authorized user.
Kathleen Pedro filed a putative class action alleging that TransUnion willfully violated section 1681e(b), which requires consumer reporting agencies to "follow reasonable procedures to assure maximum possible accuracy," when it reported her parents' credit card account for which she was an ...
Today, Florida's Fifth DCA and Second DCA issued two seminal opinions; Klebanoff v. Bank of N.Y. Mellon, and Huntington National Bank v. Watters, which clarify the cloud of uncertainty that had engulfed the statute of limitations issue in Florida and provide a strong basis for lenders that are filing subsequent foreclosures of the same loan based on the same initial default date.
In Klebanoff, the Bank filed its foreclosure action in 2014 alleging that the Klebanoff's defaulted for failing to make the March 1, 2009 payment and all subsequent payments due thereafter. Klebanoff v. Bank ...
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 ...
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 ...
Florida's Fourth District Court of Appeal breathed life back into the lis pendens statute by reversing course in Ober v. Town of Lauderdale-By-the-Sea. On a motion for rehearing, the Court withdrew and replaced its August 24, 2016 opinion, which "eviscerated" the lis pendens statute by holding that liens placed on property between a final judgment of foreclosure and the judicial sale were not discharged by Florida Statute § 48.23. For an in-depth discussion of the Court's August 24, 2016 opinion, click here. Consistent with the real property and mortgage industry's understanding ...
In an order issued today, Judge Dalton of the Middle District of Florida held that in a non-bankruptcy context, allegations that collection of a mortgage debt is barred by the statute of limitations do not form a "plausible basis" for claims under the Fair Debt Collection Practices Act, the Florida Consumer Collection Practices Act, or the Declaratory Judgment Act.
In Garrison v. Caliber Home Loans, Inc., Case No. 6:16-cv-978-Orl-37DCI (Order, Jan. 10, 2017), the plaintiff brought counts under five consumer protection laws, including the FDCPA and FCCPA, as well as for a ...
On November 18, 2016, the United States District Court for the Middle District of Florida held that the communication of an unequivocal and non-coercive settlement offer does not violate the Fair Debt Collection Practices Act (the "FDCPA"). Vazquez v. Prof'l Bureau of Collections of Maryland, Inc., -- F. Supp. 3d --, 2016 WL 6822480, at *2 (M.D. Fla. Nov. 18, 2016). In Vazquez, the plaintiff alleged that a debt collector violated section 1692c(c) of the FDCPA by sending a communication offering to settle a debt (the "Settlement Offer") after the plaintiff disputed the debt. Id. at *1 ...
The Florida Supreme Court today affirmed Bartram v. U.S. Bank National Association in a virtually unanimous decision. The decision resolves a long standing controversy regarding the effect (if any) of a prior unsuccessful foreclosure action with regards to Florida's statute of limitations for mortgage foreclosure. The Court's opinion in case number SC14-1265, which was joined by all the justices with the exception of Justice Lewis (who concurred in result only and authored a short opinion of his own) and contains several important holdings. The vast majority of the opinion is ...
In the wake of Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (May 16, 2016), the Supreme Court decision that had the chance to be legendary, but instead settled for punting back to the Ninth Circuit Court of Appeals, we are left wondering who the real winner was and what is the fallout for mere procedural violations of statutes for consumer claims?
Spokeo, Inc. v. Robins: Straight Back to the Ninth Circuit
In a 6-2 decision, with Justice Thomas concurring and Justices Ginsburg and Sotomayor dissenting, the Supreme Court held that that the Ninth Circuit Court of Appeals had failed to properly ...
On October 4, 2016, the Eleventh Circuit Court of Appeals ruled that chapter 7 debtors who file a statement of intention to surrender real property in bankruptcy cannot later contest a foreclosure action, and bankruptcy courts have broad power and authority to sanction violations. Failla v. CitiBank, N.A., case no. 15-15626 (11th Cir. October 4, 2016). The bankruptcy court in Failla reopened a chapter 7 bankruptcy case several years after entry of discharge and ordered the debtors to cease their defense of the bank's foreclosure action, threatening to vacate the discharge order for ...
In the wake of the Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), a growing trend is emerging with respect to cases involving claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Indeed, while many early decisions held that "a violation of the TCPA is a concrete injury," see, e.g., Rogers v. Capital One Bank (USA), N.A., No. 1:15-cv-4016, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016), more recently, some courts are requiring more. In fact, in Ewing v. SQM US, Inc. et al., Judge Cathy Ann Bencivengo of the Southern District of ...
The Consumer Financial Protection Bureau ("CFPB") issued updated examination procedures it will use to assess lender compliance with the Military Lending Act rule ("MLA"). The MLA rule was amended in 2015 and the new requirements for lines of credit, installment loans, and deposit advances go into effect on October 3, 2016. Credit card issuers have a later compliance date of October 3, 2017. The MLA applies to active duty servicemembers and covered dependents. The amendment expands the types of products covered by the MLA, requiring enhanced disclosures, and restricting loan ...
In Kuntz v. Rodenburg LLP, No. 15-2777, - F.3d -, 2016 WL 5219884 (8th Cir. Sept. 22, 2016), the Eighth Circuit held that a law firm hired to collect a debt did not violate § 1692b(3) of the Fair Debt Collection Practices Act ("FDCPA") when it made multiple calls to a third party to obtain information about the debtor.[1] Section 1692b(3) prohibits debt collectors from communicating more than once with a person other than the debtor ("third party") in order to obtain information about the debtor's location unless the third party requests to be contacted or the debt collector "reasonably ...
In Marquez v. Weinstein, Pinson & Riley, P.S., No. 15-3273, - F.3d -, 2016 WL 4651403 (7th Cir. Sept. 7, 2016), the Seventh Circuit Court of Appeals held that a validation notice in a complaint to collect a debt violated the Fair Debt Collection Practices Act ("FDCPA"). The ruling interpreted § 1692e of the FDCPA, which prohibits debt collectors from using "any false, deceptive, or misleading representations or means in connection with the collection of any debt." 15 U.S.C. § 1692e. The Seventh Circuit found that the validation notice violated § 1692e because the validation notice was ...
In Dubois v. Atlas Acquisitions LLC, Case No. 15-1945 (4th Cir. Aug. 25, 2016), the Fourth Circuit Court of Appeals held in a 2-1 decision that filing proofs of claim on time-barred debts does not violate the Fair Debt Collection Practices Act ("FDCPA"), at least where state law preserves the right to collect on the payment. In so holding, the court sided with the Second and Eighth Circuit Courts of Appeals in a circuit split regarding the viability of FDCPA claims premised on proofs of claim filed in a debtor's bankruptcy case.
The Fourth Circuit first held that filing a proof of claim is ...
Florida's 4th District Court of Appeal sent the real property and mortgage world into a frenzy this week after issuing its opinion in Ober v. Town of Lauderdale-By-The-Sea, dramatically weakening the protections of Florida's lis pendens statute. It held that a lien placed on a property after the foreclosure judgment which arises from an action occurring post-judgment, is not extinguished by Florida Statute §48.23. The term most commonly used in emails and articles drafted by attorneys to describe the impact of this decision on the lis pendens statute is "eviscerate". This type of ...
The Second District Court of Appeal has become the first appellate court in Florida to hold that Florida Statute § 559.715, part of the Florida Consumer Collection Practices Act, Chapter 559, et seq. ("FCCPA"), does not apply to the note holder in a mortgage foreclosure proceeding. Deutsche Bank Nat. Trust Co. v. Hagstrom, 2D14-5254, 2016 WL 3926852, at *1 (Fla. 2d DCA 2016). In many instances, the Hagstrom holding will eviscerate a § 559.715 affirmative defense, which historically has been a popular and often effective defense to foreclosure, due in large part to the lack of case law ...
The Fourth District Court of Appeal recently affirmed its prior decision in Vidal v. Liquidation Properties, Inc., 104 So. 3d 1274 (4th DCA 2013). Wells Fargo Bank, N.A. v. Hilary A. Williamson, Case No. 4D15-285, 2016 WL 3745477 (Fla. 4th DCA 2016). It concluded, once again, that a borrower is in the best position to know their own financial information. Therefore, if a borrower executes their loan application including false information, that borrower is precluded from raising fraud as an affirmative defense in a subsequent action absent unique circumstances. See Shahar v. Green ...
The Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), continues to have a substantial impact on federal courts, especially with respect to alleged statutory violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the "FDCPA"). In fact, just last week the Third Circuit Court of Appeals relied on the Spokeo decision in reversing a district court's order granting summary judgment in favor of the plaintiff in Bock v. Pressler & Pressler, LLP, No. 15-1056, 2016 WL 4011150 (3rd Cir. July 27, 2016). The plaintiff in Bock had alleged ...
Early in the morning on July 28, 2016, in coordination with the Consumer Financial Protection Bureau's (the "Bureau") field hearing on debt collection being held the same day in Sacramento, California, the Bureau released a detailed outline of proposals under consideration for debt collection rulemaking. While the proposals only cover third-party debt collection issues, the Bureau indicated that they plan to address first-party collectors and creditors with similar proposals at a later date. We expect that many of the same principles outlined in the third-party proposals will ...
The Consumer Financial Protection Bureau (CFPB) released a special edition of its supervision report, honing in on mortgage servicers on June 22nd [1]. It blamed outdated technology and process breakdown for trends it has seen with violations of the CFPB's 2014 servicing rules. The primary areas of concern are communications and data related to loan modifications and servicing transfers.
Among the highlights of the report, CFPB examiners found that "information about loan modifications is late, incorrect, or deceptive, due to technological breakdowns or malfunctions ...
The Public Comment period closed yesterday on the National Credit Union Administration's (NCUA) proposed Rule amending its regulation governing federal credit union (FCU) property occupancy requirements. Presently, a FCU must plan for and eventually achieve full occupancy of any acquired commercial property. Under the proposed Rule, a FCU will be able to lease or sell excess capacity in its facilities, and it does not require that the FCU plan to occupy the entire space at some point in the future.
The NCUA reports that the comments it has received are largely supportive of the Rule ...
*Co-authored by Charles Davis [1]
On May 5, 2016, the Consumer Financial Protection Bureau ("CFPB") held its fourth field hearing on Arbitration and issued a proposed Rule that would prohibit the use of arbitration clauses that block consumers' participation in class actions in contracts for consumer financial products and services. The Rule would also require providers who use pre-dispute arbitration agreements to submit certain records relating to arbitral proceedings to the CFPB. The Rule is expected to take effect during the summer of 2017.
Upon issuance of the Final Rule ...
In a recent opinion, the Second District Court of Appeal held that the lower court was not required to uphold its three prior rulings denying relief from technical admissions when: (1) the record evidence was contrary to those admissions; and (2) the opposing party failed to show it would be prejudiced by the withdrawal of the admissions. Judge Crenshaw stated that the trial court abused its discretion in denying the defendant, Wells Fargo's, relief from technical admissions. The court reversed and remanded the case. Wells Fargo Bank Nat'l Ass'n v.Voorhees, Case No. 2D15-2055, 2016 ...