Consumer Finance Litigation Blog | Burr & Forman LLP

Eleventh Circuit: Unaccepted Rule 68 Offer Does Not Moot Individual Or Class Claims

Alan D. Leeth, Kristen Peters Watson — Wed, 03 Dec 2014 09:00:01 -0500

The Eleventh Circuit Court of Appeals recently held that unaccepted Federal Rule of Civil Procedure 68 offers of judgment to the named plaintiffs that, if accepted, would have provided all relief that plaintiffs sought, neither moots the individual plaintiff's claims or the putative class action. Thus, the strategy to make an offer of judgment to render the case moot and prevent class certification may no longer be viable strategy in the Eleventh Circuit. In Stein v. Buccaneers Limited Partnership, --- F.3d ---, 2014 WL 6734819 (11th Cir. 2014), six named plaintiffs filed suit ...

Mais v. Gulf Coast Collection Bureau: Eleventh Circuit Provides Creditors TCPA Relief

Zachary D. Miller — Tue, 30 Sep 2014 09:00:02 -0400

In May 2013, a ruling from the U.S. District Court for the Southern District of Florida caused great concern among creditors and debt collectors by taking an unprecedented stance against the supremacy of orders issued by the Federal Communications Commission ("FCC") regarding the Telephone Consumer Protect Act ("TCPA"). In Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013), Judge Robert N. Scola, Jr. granted partial summary judgment on the plaintiff's TCPA claims against the defendant, Gulf Coast, which had obtained the plaintiff's cell phone ...

Second Circuit Holds Mortgagor's Written Request for Information Does Not Qualify as a QWR When Not Sent to the QWR Designated Address

Matthew T. Mitchell — Thu, 24 Jul 2014 09:00:03 -0400

In Roth v. CitiMortgage Inc., 2014 WL 2853549 (2nd Cir. June 24, 2014), the Second Circuit held that although a mortgage had three letters requesting various mortgage related information sent by her lawyer, the mortgagor's RESPA claim was properly dismissed on the basis that her lawyer's letters were not sent to CitiMortgage's designated QWR address. Accordingly, the requests were not QWRs under RESPA and did not trigger CitiMortgage's QWR duties under RESPA. In Roth, Defendant CitiMortgage Inc. serviced a second residential mortgage for Plaintiff Patricia Roth. Roth alleged ...

Middle District of Florida Holds that Determining Date of Alleged RESPA Violations Requires Additional Factual Development in Order to Determine Effectiveness of CFPB's Mortgage Rules

Reid S. Manley — Wed, 23 Jul 2014 09:00:04 -0400

In Bryan v. Federal National Mortgage Association, 2014 WL 2988097 (M.D. Fla. July 2, 2014), plaintiffs alleged violations of RESPA and the applicable regulations set forth in 24 C.F.R. § 3500 and 12 C.F.R. § 1024.30, et seq. (Regulation X) against Seterus and Fannie Mae, respectively. The facts alleged that Fannie Mae was the "master servicer" of the note and mortgage, and Seterus was the "subservicer" of the note and mortgage. Specifically, plaintiffs alleged that defendants Seterus, and Fannie Mae by the failure of Seterus, failed to take timely action to respond to ...

Eleventh Circuit Holds Consumers May Revoke "Prior Express Consent" Under the TCPA Either Orally or in Writing

Reid S. Manley — Tue, 22 Jul 2014 09:00:05 -0400

In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh ...

Eleventh Circuit Holds Only a Cell Phone Subscriber and Not the "Intended Recipient," May Provide "Prior Express Consent" for TCPA Claims

Reid S. Manley — Tue, 22 Jul 2014 09:00:06 -0400

Eleventh Circuit Holds That Filing a Proof of Claim in Bankruptcy on a Time-Barred Debt Violates the FDCPA

Alan D. Leeth, Rachel R. Friedman — Tue, 15 Jul 2014 09:00:07 -0400

In Crawford v. LVNV Funding, LLC, the Eleventh Circuit became the first federal circuit court of appeals to hold that filing a proof of claim on a time-barred debt in a bankruptcy case violates the Fair Debt Collection Practices Act ("FDCPA").[1] See No. 13-12389,__ F.3d __, 2014 WL 3361226 (11th Cir. July 10, 2014). The case arose when LVNV filed a proof of claim in Crawford's bankruptcy case on a debt for which the statute of limitations had expired. In response, Crawford filed an adversary proceeding against LVNV, alleging that LVNV routinely filed proofs of claim on time-barred debts ...

Texas District Court Addresses Prior Express Consent

Zachary D. Miller — Tue, 08 Jul 2014 09:00:08 -0400

In Cherkaoui v. Santander Consumer USA, Inc., No. 4:13-cv-00467 (S.D. Tex. May 23, 2014), the U.S. District Court for the Southern District of Texas examined how a creditor may obtain "prior express consent" from a borrower and the level of evidence necessary for a borrower to survive summary judgment with claims of oral revocation of consent. The plaintiff in Cherkaoui obtained an automobile loan from the defendant, Santander Consumer USA, Inc. ("Santander"). On his credit application, the plaintiff provided his cellular telephone number. The plaintiff alleged that, despite ...

Middle District of Florida Clarifies Application of FDCPA and FCCPA Statutes of Limitation

Frank Springfield — Tue, 24 Jun 2014 09:00:09 -0400

Burr & Forman LLP recently secured an important holding on an issue of first impression regarding the running of the statute of limitations in the FDCPA and FCCPA context. More specifically, in Gregory Crossman v. Asset Acceptance, LLC, 5:14-cv-00115-WTH-PRL, Judge Hodges, sitting in a Middle District of Florida trial court, held that inaction cannot form the basis of a continuing violations theory under the FDCPA or FCCPA, the delayed discovery doctrine does not apply to same, and the recording of a satisfaction of judgment, albeit untimely, renders a § 701.04, Florida Statutes ...

Bankruptcy Court Holds that Section 521(a)(2) Is More Than a Mere Notice Statute

Wed, 28 May 2014 09:00:10 -0400

Chief Judge Karen S. Jennemann of the United States Bankruptcy Court for the Middle District of Florida, Orlando Division recently held in a soon-to-be published opinion that chapter 7 debtors who state an intention to surrender real property to the mortgagee must perform on that intention by not impeding or interfering with the state court foreclosure process. In the case, In re Plummer, - B.R. -, 2014 WL 1248039 (Bankr. M.D. Fla. March 25, 2014), the Bankruptcy Court also held that, while the statute is not a mere notice provision, surrender does not require a debtor to take any ...