Posts from May 2013.

In City of Palm Bay v. Wells Fargo Bank, N.A., No. SC11-830 (Fla. May 16, 2013), the Supreme Court of Florida ruled that a municipal ordinance superiority provision is invalid as conflicting with state law. The certified question the Court considered was the following: Whether under Article VIII, section 2(b), Florida Constitution, section 166.021, Florida Statues and Chapter 162, Florida Statutes, a municipality has the authority to enact an ordinance stating that its code enforcement lien, created pursuant to a code enforcement board order and recorded in the public records of ...

Posted in: Florida, Mortgages

In Mais v. Gulf Coast Collection Bureau, Inc., the United States District Court for the Southern District of Florida addressed the question of whether providing one's cell phone number during a hospital admission amounts to prior express consent under the TCPA to receive collection calls arising out of the hospital visit. __ F. Supp. 2d __, 2013 WL 1899616, at 11 (S.D. Fla. May 8, 2013). Under the particular facts of Mais, the court answered the question in the negative. During a hospital visit, the plaintiff's wife had provided the plaintiff's cell phone number to the hospital's ...

Posted in: Florida, TCPA

In Nichols v. Niagara Credit Recovery, Inc., No. 5:12-cv-1068, 2013 WL 1899947 (N.D.N.Y. May 7, 2013), the Northern District of New York held that the plaintiffs' Fair Debt Collection Practices Act ("FDCPA") claims were barred by the FDCPA's one-year statute of limitations, where the plaintiffs attempted to raise an equitable tolling argument for the first time in their response to the defendants' motion to dismiss. The wife in Nichols had defaulted on a loan from the original creditor, who assigned the debt to a debt collection company for collection. The debt collector, in turn ...

Posted in: FDCPA

In a consolidated appeal of two cases from the United States Bankruptcy Court for the Middle District of Alabama, the United States District Court for the Middle District of Alabama held last week that the filing of a proof of claim in a debtor's bankruptcy case does not amount to an FDCPA violation. See Crawford v. LVNV Funding, LLC, Case No. 2:12-cv-701-WKW, Doc. 18 (M.D. Ala. May 9, 2013). The plaintiff-debtors had appealed the dismissal of their adversary complaints which asserted FDCPA claims against creditors who allegedly filed proofs of claim on time-barred debts in their ...

Posted in: FDCPA

In Topchian v. JPMorgan Chase Bank, N.A., Case No. 12-0910-CV-W-ODS, 2013 WL 1628525 (W.D. Mo. April 16, 2013), the Western District Court of Missouri granted Defendant, JPMorgan Chase Bank, N.A.'s ("Defendant") motion to dismiss pro se Plaintiff, Samvel Tochian's ("Plaintiff"), Amended Complaint for the alleged failure to provide adequate opportunity to the federal Home Affordable Modification Program ("HAMP") and related claims. See generallyid. The District Court, citing various prior court holdings, held that there is not private right of action for loan ...

The United States Bankruptcy Panel of the First Circuit held that the Home Owner's Loan Act ("HOLA"), 12 U.S.C. § 1461 et seq. preempted certain Massachusetts statutory claims in the recent case Frykberg v. JPMorgan Chase Bank, N.A. (In re Frykberg), No. 12-050, 2013 WL 1704701 (B.A.P. 1st Cir. Apr. 18, 2013). There, the debtor filed an adversary complaint against JP Morgan Chase Bank, N.A. ("Chase") alleging claims under the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws ch. 140D, § 8, and the Massachusetts Predatory Home Loan Practices Act, Mass. Gen. Laws ...

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