Posts from March 2013.

In Florence Mussat, M.D., S.C. v. Global Healthcare Resource, LLC, 2013 WL 1087551 (N.D. Ill. March 13, 2013), the North District Court of Illinois for the Eastern Division granted a Motion for Class Certification for claims relating to alleged Telephone Consumer Protection Act ("TCPA") violations and state law claims. In February of 2011, Defendant, Global Healthcare Resource, LLC ("GHR") sent a fax to Plaintiff, Florence Mussat, M.D., S.C. ("Mussat"), on behalf of Physician Billing Services ("PBS"), stating that PBS is a subsidiary of GHR that provides medical ...

Posted in: Illinois, TCPA

A federal court in Pennsylvania recently held that a "Quick Response Code" ("QR Code") located on an envelope that contained a debt collection letter did not violate Section 1692f of the FDCPA. In Waldron v. Professional Medical Management, the plaintiff sued the defendant debt collection firm after it sent him collection letter bearing a QR Code that was visible through the pane of the envelope and, when scanned, showed the plaintiff's name, address, and a nineteen digit code. No. 12-1863, 2013 WL 978933 (E.D. Pa. Mar. 13, 2013). The defendant moved for summary judgment. In support of ...

Posted in: FDCPA, Pennsylvania

In Wassef v. JPMorgan Chase Bank, N.A., No. CV-12-02480-PHX-DGC, 2013 WL 1123678 (D. Ariz. Mar. 18, 2013), the United States District Court for the District of Arizona granted a motion to dismiss where the claims were premised on an alleged repayment agreement. There, the plaintiffs had taken out a loan from Chase Bank, N.A. to refinance their home. The loan was secured with a deed of trust on the property. The plaintiffs later entered into a HAMP modification agreement with Chase, but they were unable to make their payments under the modification. The plaintiffs alleged that Chase ...

Posted in: Mortgages

On March 7th, the Florida Supreme Court held that the economic loss rule (the doctrine that an economic loss is not recoverable under a tort theory unless accompanied by physical property damage or personal injury) applies only to products liability cases, effectively eliminating use of the doctrine in consumer cases. Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Cos., Inc., 2013 WL 828003 (Fla. Mar. 7, 2013). In Tiara, a condominium association sued its insurance broker under both tort and contract theories for failing to inform the association that it was underinsured for ...

Posted in: Florida

Frank Springfield and Zachary Miller have written an article for the Business Law Section of the American Bar Association that was published in the Business Law Today. The article addresses the Consumer Financial Protection Bureau's ("CFPB") rule defining "larger participants" in the consumer debt collection market and the impact that the CFPB will have on the collection industry. The article also highlights changes that can be expected for attorneys practicing in this industry and recent decisions released by federal courts addressing the scope of the Fair Debt Collection ...

Posted in: CFPB, FDCPA

An Alabama federal court recently rejected an attempt by certain merchant defendants to dismiss claims brought under the Fair and Accurate Credit Transactions Act ("FACTA"), 15 U.S.C. § 1681, et seq., on the basis of the plaintiffs' failure to allege actual damages. In the case, Amason v. Kangaroo Express, the plaintiffs sued merchants with whom they had transacted business, alleging that the defendants willfully violated FACTA by printing more than the last five digits of the plaintiffs' credit and debit card numbers on receipts. No. 7:09-2117-RDP, 2013 WL 987935, at 3 (N.D ...

Posted in: Alabama, FACTA, FCRA

In Echlin v. Columbia Collectors, Inc., NO. C12-5878 RBL, 2013 WL 858206 ( W.D. Wash. Mar. 7, 2013), the Western District of Washington held that an Offer of Judgment of $1,500 plus costs and attorneys' fees mooted the debtor's claim under the Fair Debt Collection Practices Act ("FDCPA"), where the debtor sought statutory damages, actual damages, costs, and attorneys' fees in her complaint yet failed to allege that she in fact suffered actual damages. The plaintiff-debtor in Echlin, who alleged that various notices sent by the defendant-debt collector were defective under the ...

Posted in: FDCPA, Washington

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 ...

A recent decision from the Southern District of Florida concerning new provisions in the Truth in Lending Act ("TILA") added by Dodd-Frank has the potential to shake up the already turbulent case law concerning Section 1641(f)(2) TILA. Section 1641(f)(2) prohibits a loan servicer from failing to disclose the address and telephone number of the owner or master servicer of a mortgage to the borrower upon request. Foreclosure defense counsel has seized upon the statute as a means to gain leverage in foreclosure actions by sending requests for information to loan servicers and quickly ...

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 ...

Posted in: Colorado, FDCPA

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" ...
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