Most constitutional challenges to agency action arise as a defense to an enforcement action. However, State National Bank of Big Spring, Texas (the "Bank") has led a constitutional challenge to the very existence and structure of the Consumer Financial Protection Bureau ("CFPB") from day one. The CFPB was created by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The Bank's ambitious challenge to the constitutionality of the CFPB is rooted in five core arguments: 1) as an independent agency, the CFPB could not be headed by one person, Director Richard Cordray ...
Florida's Third District Court of Appeal shocked many court watchers with its opinion in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) when it created a split of authority on Florida's statute of limitations for mortgage foreclosure. Before Beauvais, Florida's case law was consistent that a dismissal, be it with or without prejudice, permitted new non-time-barred causes of action for foreclosure to accrue based upon post-dismissal breaches of mortgage covenants. See Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d ...
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 ...
On Tuesday, the Eleventh Circuit Court of Appeals expanded the scope of conduct that is actionable under the Fair Debt Collection Practices Act ("FDCPA") to include communications directed to a debtor's attorney. However, the Court also said that such communications may not be actionable under a "least sophisticated consumer" standard and that a plaintiff may have to hurdle a higher bar to establish a violation. In Miljkovic v. Shafritz and Dinkin, P.A., et al., No. 8:14-cv-00635-VMC-TBM, 2015 WL 3956570 (11th Cir. 2015), the plaintiff debtor brought suit against debt ...
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