In Davis v. Oasis Legal Fin. Operating Co., LLC, 18-10526, 2019 WL 4051592 (11th Cir. Aug. 28, 2019), the U.S. Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”) affirmed a decision in the U.S. District Court for the Southern District of Georgia (“District Court”) that denied the defendant payday loan lenders’ motions to dismiss and motion to strike class allegations. The plaintiffs, a class of borrowers, sued the defendant lenders, three entities operating as “Oasis Legal Finance,” in Georgia for violating the state’s usury laws. The Eleventh ...
On September 8, 2015, United States District Judge Marvin H. Shoob declared Georgia's statutory garnishment process unconstitutional in Strickland v. Alexander, No. 1:12-CV-02735-MHS (N.D. Ga. Sept. 8, 2015) (granting summary judgment for plaintiff). In what is sure to be the first of many county-level responses, Gwinnett County officials announced on September 9, 2015 that they will stop issuing garnishment summonses and disbursements pending further judicial instruction. The opinion will potentially affect the debt collection industry (for an unknown duration ...
The Eleventh Circuit Court of Appeals and Georgia Court of Appeals recently issued competing orders about mortgage borrowers' standing to challenge security deed assignments. Though the Eleventh Circuit affirmed that borrowers cannot challenge their security deed assignments when making wrongful foreclosure claims, the Georgia Court of Appeals found that borrowers can challenge their assignments under Georgia's Quiet Title Act. This newly-clarified distinction will perhaps provoke borrowers to file quiet title actions to frustrate Georgia foreclosure efforts in the ...
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 ...
Cataldi v. New York Community Bank (N.D. GA Feb. 3, 2013) (Loss Mitigation & Dual Tracking)
This action involves one of the first decisions issued pursuant to the new mortgage servicing regulations under the "Dodd-Frank Wall Street Reform Act and Consumer Protection Act." Plaintiff sought injunctive relief for violation of the Act, including a claim that the Defendant did not fairly offer and negotiate loss mitigation options and pursued "dual track" foreclosure. The facts established that the parties engaged in modification negotiations, that one or more modifications ...
In You et al. v. JP Morgan Chase Bank, N.A. et al., No.S13Q0040(Ga. May 20, 2013), the Supreme Court of Georgia ruled that the holder of a security deed seeking to exercise a power of sale is not required to also hold the underlying promissory note. Further, the Court held that a party exercising its right to foreclose as a holder of the security deed does not need to identify the holder of the note in the statutorily-mandated notice to debtor. The borrowers in this case primarily argued that JP Morgan Chase Bank, N.A. did not have the right to exercise power of sale because it was not the holder of ...