Consumer Finance Litigation Blog | Burr & Forman LLP

Burr Scores Significant Appellate Victory in Florida

Tue, 29 Dec 2015 09:00:01 -0500

In Deutsche Bank Nat'l Trust Co. v. Estrella Perez, et al., No. 3D15-58, 2015 WL 8347002 (Fla. 3d DCA Dec. 9, 2015), Florida's Third District Court of Appeal held that the trial court erred in dismissing a foreclosure case on the ground that Plaintiff failed to specifically name its corporate representative that would testify at trial. Burr & Forman LLP attorneys Brendan A. Sweeney, Esq. and Douglas J. Stamm, Esq. represented Plaintiff/Appellant Deutsche Bank National Trust Company on behalf of LSF MRA Pass-Through Trust ("Deutsche Bank") at the trial and appellate level. On ...

Supreme Court Reaffirms Arbitration Class-Waivers

Sat, 19 Dec 2015 09:00:02 -0500

The Supreme Court Monday re-affirmed the enforceability of class-waivers in arbitration agreements. The five-justice majority felt the need to rebuke the California courts for trying to end-run Federal preemption through a latent "States-rights" nullification approach. Two of the three dissenters saw the case as a consumerist crusade against big business. But the biggest take away for businesses using arbitration clauses just might lie hidden within the opinion. DirectTV's Conditional Class-Waiver. DirectTV's consumer contracts contained a conditional class waiver ...

The Priority of Interests in Real Estate

Thomas K. Potter, III — Fri, 18 Dec 2015 09:00:03 -0500

In Bank of America, N.A. v. Kipps Colony II Condominium Association, Inc., the Second District Court of Appeal reversed a 2011 final judgment entered in favor of Kipps Colony II Condominium Association, Inc. ("Association"). See Nos. 2D14-858, 2D14-4436, 2015 WL 8321268 (Fla. 2d DCA Dec. 9, 2015). Though Bank of America had been defaulted in the Association's claim of lien foreclosure action, the appellate court found the trial court erred in denying Bank of America's Florida Rule of Civil Procedure 1.540(b) motion. Judge Black delivered the opinion of the court finding that the ...

Lender Not Liable for Client's Suicide

Mon, 14 Dec 2015 09:00:04 -0500

In Surloff v. Regions Bank, et al., No. 4D14-842, 2015 WL 7275207 (Fla. 4th DCA Nov. 18, 2015), the Fourth District Court of Appeal of Florida was faced with the issue of whether Regions Bank (the "Bank") had any duty or "special relationship" with its client that would subject the Bank to liability for its client's suicide. The issue arose after the trial court granted the Bank's motion to dismiss Plaintiff Cheri Surloff's (as personal representative of the Estate of Arthur B. Surloff) (the "Plaintiff") claims of negligent undertaking and negligent infliction of emotional ...

Business Records Hearsay Exception Applicable Only When Proper Foundation is Laid

Mon, 30 Nov 2015 09:00:05 -0500

In Ensler v. Aurora Loan Servs., LLC, the Fourth District Court of Appeal of Florida was faced with the issue of whether a prior mortgage loan servicer's documents could be introduced into evidence when the current servicer testified the prior servicer's records were "accurate" because "[t]hey're a reputable big company and we trust them and they trust us." At trial, Plaintiff sought to introduce the following documents into evidence (through the testimony of the current servicer): the breach letter, payment history, and power of attorney. All of these documents were authored ...

Bankruptcy Court Order Compelling Surrender of Property Upheld on Appeal

Mon, 23 Nov 2015 09:00:06 -0500

On November 23, 2015, in the first appellate decision of its kind, the District Court for the Southern District of Florida affirmed a bankruptcy court order to compel chapter 7 debtors to surrender real property by directing the debtors to cease all foreclosure defense. The decision in Failla v. Citibank, N.A. (In re Failla), case no. 15-80328, marks the first decision from a federal appellate court to address the question of whether a bankruptcy court may enter an order directing a debtor to cease defending a mortgage foreclosure suit pending in state court. On December 19, 2014, Judge ...

DOJ Unveils "Yates Memo" Revisions to US Attorneys' Manual

Thomas K. Potter, III — Mon, 23 Nov 2015 09:00:07 -0500

Speaking to a November 16 Money Laundering conference jointly sponsored by the American Banking and Bar Associations, Deputy AG Sally Yates unveiled revisions to the Department of Justice's U.S. Attorneys' Manual ("USAM"). The revisions implement the new focus on individual wrongdoing in the corporate criminal context first announced September 9 in the "Yates Memo." The revisions principally involve (1) the Filip Factors, (2) extend the Yates Memo to civil investigations, and (3) address coordination in parallel proceedings.

Filip Factor Revisions.

Chapter 9-28.000 ...

After-Acquired Title Doctrine Held Applicable to Subsequent Purchaser

Tue, 17 Nov 2015 09:00:08 -0500

In BCML Holding LLC v. Wilmington Trust, N.A., the purchaser of a property at an association foreclosure sale for unpaid assessments contended that the first mortgage was void ab initio because title to the property wasn't acquired until after the first mortgage was signed. The Third District Court of Appeal held the after-acquired title doctrine applies to a non-party to the original mortgage who is a subsequent purchase of the property. On July 11, 2007, Gonzalo and Daniela Malesich ("Malesich") executed a note and purchase money mortgage which conveyed an interest in a ...

FTC Announces New Initiative: Operation Collection Protection

Thu, 05 Nov 2015 09:00:09 -0500

On November 4, 2015, the Federal Trade Commission (FTC) and other law enforcement authorities announced the first coordinated federal-state enforcement initiative targeting deceptive and abusive debt collection practices. The national initiative, named Operation Collection Protection, encompasses 30 new enforcement actions by federal, state, and local law enforcement authorities against collectors. The cases announced today bring the total number of actions taken so far this year to 115 by more than 70 law enforcement partners participating in the initiative. As part of ...

Wisconsin District Court Extends Stay in TCPA Case Pending Judicial Review of FCC Order

Reid S. Manley, Kristen Peters Watson — Wed, 04 Nov 2015 09:00:10 -0500

In Gensel v. Performant Technologies, Inc., No. 13-C-1196, 2015 WL 6158072, (E.D. Wisc. Oct. 20, 2015), the U.S. District Court for the Eastern District of Wisconsin granted Performant Technologies, Inc.'s ("Performant") motion to continue the stay pending judicial review of the FCC's July 10 Order. Plaintiff filed suit against Performant alleging violations of the TCPA based on several calls she received from Performant on her cell phone. Plaintiff's cell phone provider assigned her a number that was previously assigned a person who defaulted on a student loan. Performant ...