Posts from November 2018.

For many of the claims asserted under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the "FDCPA"), courts are required to apply the "least sophisticated consumer" standard in evaluating the claim, an "objective" test that assesses the alleged violation from the perspective of the hypothetical "least sophisticated consumer." See Landeros v. Pinnacle Recovery, Inc., 692 F. App'x 608, 612-13 (11th Cir. 2017); see also Leonard v. Zwicker & Assocs., P.C., 713 F. App'x 879, 881-82 (11th Cir. 2017). But as the Eleventh Circuit again made clear earlier this month in Lait ...

In Roark v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018), the District Court of Minnesota found that calls to a reassigned phone number did not violate the TCPA because the caller's reliance on the prior owner's express consent was reasonable.

The plaintiff, Stewart Roark ("Plaintiff"), alleged Credit One Bank, N.A. ("Credit One") violated the Telephone Consumer Protection Act ("TCPA") by using an automatic dialer ("ATDS") to call his cell phone number and left a prerecorded voicemail on his phone without his consent. See generally id.

Florida's Fourth District Court of Appeal continued to broadly apply the holding in Nationstar Mortgage LLC v. Glass, 219 So. 3d 896, 898 (Fla. 4th DCA 2017), review granted, SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018) in a recent appeal handled by Burr & Forman.

In Wells Fargo Bank v. Moccia, a foreclosure action was dismissed based upon evidence that the borrower had entered into a deed-in-lieu of foreclosure agreement with the prior servicer. The order of dismissal reserved jurisdiction to enforce the deed-in-lieu agreement. The borrower then moved for attorney's fees ...

Posted in: DCA, Florida

On October 31, 2018, Florida's Second District Court of Appeal recently distinguished two of its prior opinions and held that a foreclosure plaintiff does not lose its standing as a holder of a negotiable instrument if it surrenders a promissory note to the clerk of court for purposes of obtaining a foreclosure judgment, and later re-files the action without retaking possession of the note from the clerk.

Two prior opinions from the Second District Court of Appeal, Partridge v. Nationstar Mortgage, LLC, 224 So. 3d 839 (Fla. 2d DCA 2017) and Geweye v. Ventures Trust 2013-I-H-R, 189 So. 3d ...

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