- Posts by Nicholas S. AgnelloPartner
Nick Agnello defends major banking and financial services industry clients in civil litigation matters alleging violations of federal and state law. He handles individual and mass actions, class action defense, multi-district ...
On September 8, 2022, in Hunstein v. Preferred Collection and Management Services, Inc. , No. 19-14434, the Eleventh Circuit Court of Appeals issued an en banc decision which departs significantly from the panel decision on Article III standing issues and statutory causes of action. The case has broad implications for how the Eleventh Circuit applies Article III standing analysis, particularly in consumer finance cases, but also in other cases where a statutory violation has a dubious relationship to any real harm to the plaintiff.
The plaintiff in Hunstein sued a ...
The Eleventh Circuit Court of Appeals has issued its ruling on the motion for rehearing in Hunstein v. Preferred Collection and Management Services, Inc., Case No. 19-14434 but most of the troublesome aspects of the Court’s panel opinion remain. In Hunstein, the Eleventh Circuit reversed the dismissal of a Fair Debt Collection Practices Act (“FDCPA”) lawsuit alleging that the Defendant, a debt collector, had violated third party disclosure prohibitions in the FDCPA by using a mail vendor to mail its dunning letters. The Plaintiff’s theory is that the use of such vendors ...
On August 26, 2021, the Florida Supreme Court amended the Florida Rules of Civil Procedure to adopt the so-called “apex doctrine” that protects high-level corporate officers from abusive discovery. Generally speaking, jurisdictions that adopt the apex doctrine require a party seeking to depose high ranking officials in a company or government agency to demonstrate that the party seeking discovery has exhausted less burdensome means to obtain the discovery and that the high-level official has a unique ability to provide relevant information that cannot be obtained from ...
On August 31, 2021, a new final rule amending Regulation X’s mortgage servicing rules for borrowers experiencing hardship due to COVID-19 will take effect. The Consumer Financial Protection Bureau (“CFPB”) hopes that these provisions will prevent a new foreclosure crisis when the majority of existing foreclosure moratoria implemented by state and federal governments expire over the course of this summer. A mastery of these new provisions will be essential knowledge for lenders, loan servicers, and their counsel in the coming months and years ahead.
Here are five major ...
On June 23, 2021, the Supreme Court of the United States (“Supreme Court”) ruled that the director of the Federal Housing Finance Agency (“FHFA”) must be removable and that the tenure protections put in place by the 2008 Housing and Economic Recovery Act are unconstitutional. Specifically, the Supreme Court’s decision in Collins v. Yellen holds that the “for cause” removal provisions infringed on the President’s constitutional authority to remove the head of an agency with a single director.
However, the Supreme Court did not find grounds to set aside any of the ...
In its 2016 decision in Avila v. Riexinger & Associates, LLC, the Second Circuit Court of Appeals held that an attempt to collect a debt that states the current balance owed but does not disclose whether interest and fees are accruing is misleading in violation of the Fair Debt Collection Practices Act (“FDCPA”) Section 1692e. This decision created a cottage industry of lawsuits seeking to pounce on this seemingly technical violation in many businesses’ collection notices.
Recently, however, the Second Circuit has recognized exceptions to the Avila decision, most recently ...
The ruling by the Eleventh Circuit Court of Appeals in Richard Hunstein v. Preferred Collection and Management Services, Inc. raises significant concerns for debt collectors who use vendors for mailing and other types of services that require the sharing of information relating to consumer debts. By ruling that such arrangements can violate the prohibition on sharing information about consumer debts with third parties under section 1692c(b) of the Fair Debt Collection Practices Act ("FDCPA"), the panel’s decision has forced many debt collectors to rethink existing business ...
On July 2, 2020, the Florida Supreme Court issued its ruling Jackson v. Household Finance Corporation III, et al., SC18-357, 2020 WL 3580036, and provided new guidance for record authentication under the business records exception to the hearsay rule. At issue in the case was whether or not a testifying employee properly authenticated business records maintained by HSBC with respect to a mortgage loan account. The Florida Supreme Court’s ruling in favor of the lender resolves a split of authority in Florida on the quantum of proof necessary to access the business records exception ...
On June 29, 2020, the United States Supreme Court held that the structure of the Consumer Financial Protection Bureau (“CFPB”) is unconstitutional. Specifically, the Court held that the CFPB director must be dischargeable at will by the president to prevent infringing upon the separation of powers between the legislative and the executive branches. Chief Justice John Roberts wrote the majority decision. The ruling may create an avenue to challenge nearly a decade’s worth of rulings and penalties issued by the CFPB since its creation in 2010.
Appellant Siela Law argued that ...
On April 1, 2020, Florida’s Third District Court of Appeal released its opinion in the case 78D Team, LLC v. U.S. Bank, N.A., etc., 3D 19-1708 (Fla. 3d DCA April 1, 2020). In this appeal, Burr successfully defended an appeal that challenged a payments order under Florida Statute 701.10(2), which permits trial courts in Florida to enter an order requiring monthly mortgage payments be made in foreclosure actions that do not involve owner occupied residential real estate. If payments are not made following such an order, the trial court can order the eviction of the property’s ...
On February 11, 2020, the United States Circuit Court of Appeal for the Eleventh Circuit issued its opinion in Anderman v. JP Morgan Chase Bank, N.A., Case No. 19-13734 regarding the applicability of the federal Fair Debt Collection Practices Act (“FDCPA”) to certain conduct in judicial foreclosure actions. In Anderman, the plaintiffs alleged on behalf of themselves and a class of similarly situated individuals that JPMorgan Chase and its counsel violated the FDCPA by allegedly seeking to collect a debt against the potential heirs of deceased borrowers by naming them in ...
In Roth v. Nationstar Mortgage, LLC, the Eleventh Circuit Court of Appeal addressed a recurring issue involving whether or not sending monthly mortgage statements regarding a discharged mortgage debt violates the discharge injunctions prohibition on collecting discharged debt, found at 11 U.S.C. 524.
The facts of the case are not at all uncommon. Roth filed a Chapter 13 petition that provided secured creditors would retain their liens. Nationstar serviced a mortgage that was treated in this manner by the plan. Roth completed her Chapter 13 plan and received a discharge, of which ...
On April 18, 2019, the Florida Supreme Court issued a surprise ruling withdrawing its January 4, 2019 opinion in Nationstar Mortgage LLC v. Glass. The Florida Supreme Court’s opinion, which reversed the Fourth District Court of Appeal ruling in a case of the same name, 219 So. 3d 896, discussed when a defendant in foreclosure can recover attorney’s fees under the attorney’s fee provisions found in loan documents after the defendant prevails on a standing defense.
Originally, the Fourth District Court of Appeal held that the borrower who prevails on standing by arguing the ...
In Green v. Specialized Loan Servicing, LLC, 17-15681, the Eleventh Circuit Court of Appeals rejected a consumers contention that his monthly mortgage statement should only seek his last five years of mortgage installments due to Florida’s five-year statute of limitations for mortgage foreclosure. The consumer sued his mortgage servicer under the federal Fair Debt Collection Practices Act (“FDCPA”) 15 USC 1692 alleging his mortgage statements were not only an attempt to collect a debt but also were deceptive because they sought debt that the consumer alleged was ...
The Florida Supreme Court released an opinion in Glass v. Nationstar, SC17-1387 with widespread implications in contract litigation, and mortgage foreclosure litigation in particular, as it relates to attorney's fee entitlement. In Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017) the Fourth District Court of Appeal held that where a borrower prevails on the issue of standing, the borrower cannot utilize the attorney's fee provisions of the note and mortgage to secure prevailing party attorney's fees. The rationale for this decision seemed simple, if the ...
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 ...
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 ...
On May 22, 2018, the U.S. House of Representatives passed S. 2155, titled The Economic Growth Regulatory Relief and Consumer Protection Act ("Act"). This was the penultimate legislative hurdle for the Act, which now only requires the President's signature to become law. The President is expected to sign the Act into law in the very near future.
The Act has a number of important regulatory relief provisions governing the lending and banking industry including:
- Reduces the level of regulatory oversight by the Financial Stability Oversight Counsel (FSOC) for banks with between ...
On February 13, 2018, the Florida Supreme Court accepted jurisdiction in an appeal emanating from a hot button issue in contested foreclosures - can the borrower in a foreclosure secure an award of contractual attorney's fees after successfully defending the foreclosure on the basis that the lender lacked standing to enforce the mortgage contract?
Florida law follows the American Rule on attorney's fees, i.e. the loser does not pay the winner's fees, unless there is a basis in contract or statute that provides for fee shifting. The avenue for a borrower to secure attorney's fees in a ...
In Baez v. Specialized Loan Servicing, LLC, 16-17292, 2017 WL 4220292 (11th Cir. Sept. 22, 2017) the Eleventh Circuit Court of Appeal recognized a limit to the requirement to the phrase "actual damages" in Section 2605 of the Real Estate Settlement Procedures Act ("RESPA")
The facts of the case were as follows: Counsel for Baez sent Specialized Loan Servicing, LLC a request for information pursuant to Regulation X and RESPA seeking certain information. Allegedly, the response Baez received did not satisfy the requirements of Regulation X and RESPA so Baez sued for actual damages. The ...
Today, Florida's Fifth DCA and Second DCA issued two seminal opinions; Klebanoff v. Bank of N.Y. Mellon, and Huntington National Bank v. Watters, which clarify the cloud of uncertainty that had engulfed the statute of limitations issue in Florida and provide a strong basis for lenders that are filing subsequent foreclosures of the same loan based on the same initial default date.
In Klebanoff, the Bank filed its foreclosure action in 2014 alleging that the Klebanoff's defaulted for failing to make the March 1, 2009 payment and all subsequent payments due thereafter. Klebanoff v. Bank ...
In Helman v. Bank of America, 15-13672, 2017 WL 1350728 (11th Cir. April 12, 2017) the Eleventh Circuit Court of Appeal clarified important issues regarding the use of periodic mortgage statements after a bankruptcy discharge. In Helman the debtor sued Bank of America after he received a periodic mortgage statements required by the Truth in Lending Act for his mortgage which he had discharged in bankruptcy. The statements he received were qualified by Bank of America in important ways, including being labeled as "FOR INFORMATIONAL PURPOSES" and containing a disclosure that Bank of ...
On March 16, 2017, the Florida Supreme Court denied motions for rehearing and/or clarification filed by petitioners Lewis Brook Bartram, the Plantation at Ponte Vedra, and Gideon M.G. Gratsiani. All three petitioners requested the Florida Supreme Court reconsider or clarify its landmark November 3, 2016 opinion in Bartram v. U.S. Bank, N.A., SC14-1266, 2016 WL 6538647. The Florida Supreme Court's opinion in Bartram holds that the involuntary dismissal of a prior foreclosure action, be it with or without prejudice, does not prevent the filing of a subsequent foreclosure action ...
The Florida Supreme Court today affirmed Bartram v. U.S. Bank National Association in a virtually unanimous decision. The decision resolves a long standing controversy regarding the effect (if any) of a prior unsuccessful foreclosure action with regards to Florida's statute of limitations for mortgage foreclosure. The Court's opinion in case number SC14-1265, which was joined by all the justices with the exception of Justice Lewis (who concurred in result only and authored a short opinion of his own) and contains several important holdings. The vast majority of the opinion is ...
Learning the interplay between state rules of judicial procedure and federal bankruptcy law can be a daunting undertaking, but the pitfalls of failing to do so can be severe. A recent example of the importance of being mindful of these issues is Hewett v. Wells Fargo Bank, N.A. as Trustee, No. 2D15-1074, 2016 WL 3065014 (Fla. 2d DCA June 1, 2016) where the filing of a bankruptcy petition ultimately cost a foreclosure defendant his right to appeal a final judgment of foreclosure.
The Second DCA summarized the procedural posture of the case as follows:
"The circuit court's final judgment of ...
Florida's Third District Court of Appeal retreated from one of its most unpopular opinions this morning. The Third DCA surprised many with its original ruling in Deutsche Bank Trust Company Americas v. Beauvais ¸ 3D14-575 when it split with the Fourth District Court of Appeal and held that if a prior foreclosure is dismissed without prejudice, the statute of limitations continues to run from the date of the first foreclosure filing. In the year that followed, the Third DCA's Beauvais opinion was universally panned by the First, Fourth, and Fifth District Courts of Appeal and numerous ...
On March 1, 2016, the Eleventh Circuit Court of Appeal held that the assignee of a loan cannot be liable for the failure to provide a payoff statement as required by the Truth in Lending Act, 15 USC 1639g. The case is Evanto v. Federal National Mortgage Association, No. 15-11450 and it has wide reaching implications for all legal post-origination TILA compliance issues. The case revolves around what many consumer advocates argue is a loophole in the TILA statute. The TILA statue requires creditors and assignees alike to provide a payoff statement within seven days of the borrower's ...
In McFarland v. Wells Fargo Bank, N.A., 14-2126 (4th Cir. Jan. 15, 2016), the Fourth Circuit Court of Appeals examined the argument that a loan was substantively unconscionable because it vastly exceeded the worth of the residential property by which it was secured. The case drew the attention of numerous amici for both the lender and the borrower. In short, during the height of the housing bubble, the borrower received a call from a mortgage broker that the value of his home had doubled in two years. The borrower refinanced his home to pay down other debt, but could not manage the larger ...
On January 12, 2016, the Ninth Circuit affirmed the denial of class cert. in a Telephone Consumer Protection Act (TCPA), 47 USC 227 action on predominance and superiority grounds in the case Paul Gannon v. Network Telephone Services, Inc., et al., No. 13-56813, 2016 WL 145811 (9th Cir. Jan. 12, 2016). In Gannon, the plaintiff alleged that he called the defendants' phone sex service by accident, and quickly hung up. Nonetheless, plaintiff alleged that several weeks later he began receiving unsolicited text messages in violation of the TCPA. Defendants alleged incoming calls received ...
The brief era of confusion amongst Florida trial judges regarding the standard for judging compliance with conditions precedent in residential mortgage foreclosures is hopefully coming to a close. Despite a rash of written opinions from Florida trial judges adopting a strict compliance standard for contractual conditions precedent, Florida's Fifth District Court of Appeal joined the Second and the Third District Court of Appeal in adopting a substantial compliance standard in Bank of New York Mellon, etc. v. Donna D. Johnson, 5D14-3626 (Fla. 5th DCA Jan. 29, 2016). The opinion ...
In Cottrell as Trustee v. Taylor, Bean & Whitaker Mortgage Corp., 41 Fla. L. Weekly D141f, 2D14-5885 (Fla. 2d DCA Jan. 8, 2016), Florida's Second District Court of Appeal examined the applicability of Rule 1.540(b) to notices of voluntary dismissal undertaken with the mistaken belief the plaintiff's claim was time-barred. In Cottrell, fraud was not alleged as the basis to set aside the dismissal. Instead, it was mistake. See Fla. R. Civ. P. 1.540(b)(1). The bank alleged that it dismissed its case based on advice of counsel that the claim was time-barred. However, subsequent to the ...
In Stuart-Findlay v. Bank of America, N.A., 2010CA014370, 41 Fla. L. Weekly D207a (Fla. 4th DCA 2014), Florida's Fourth District Court of Appeal held that a clerk's default entered in error should have been set aside, regardless of the defendant's alleged failure to demonstrate excusable neglect, meritorious defenses, or due diligence. The facts of the case were not in dispute. At the time the clerk's default was entered, the defendant had served various papers in the action. As a result, pursuant to Fla. R. Civ. P. 1.500 the Court, and not the Clerk, was the proper party to enter a ...
In Castellanos v. Midland Funding, LLC, 15-CV-559 (M.D. Fla. Jan. 4, 2016) the United States District Judge John Steele joined with several of his Middle District of Florida colleagues and held that the Bankruptcy Code preempts the FDCPA with respect to filing time-barred proofs of claim. In Crawford v. LVNV Funding, LLC, the Eleventh Circuit held that filing a time-barred proof of claim in bankruptcy court violated the FDCPA. 758 F.3d 1254, 1262 (11th Cir. 2014) cert. denied, 135 S. Ct. 1844 (2015). To the contrary, the Bankruptcy Code permits creditors to file proofs of claim without ...
In Helton v. Bank of America, 5D14-2632 (Fla. 5th DCA Jan. 22, 2016), Florida's Fifth Circuit Court of Appeal echoed its opinion in Webster v. Chase Home Finance, LLC, 155 So. 3d 1219, 1220 (Fla. 5th DCA 2015) that oral testimony unsubstantiated by corresponding business records, that required foreclosure notice was actually sent, is insufficient. In reversing on hearsay grounds, the Fifth DCA observed that the witness did not purport to testify from personal knowledge that the notice was sent but rather that the lenders business records reflected it was sent. However, those records ...
In Garfield v. Ocwen Loan Servicing, LLC, 15-527 (2d Cir. Jan. 4, 2016), the Second Circuit Court of Appeals examined whether a debtor who has been discharged in a bankruptcy can sue in a district court under the Fair Debt Collection Practices Act ("FDCPA"), as opposed to seeking relief in the bankruptcy court. During her bankruptcy, the debtor paid the arrears on her mortgage, and agreed to make monthly payments to forestall foreclosure. After receiving her discharge, the debtor ceased making payments. Within months her arrearage totaled over six thousand dollars. The lender ...
In the case of Domistyle, Inc., 14-41463 (5th Cir. Dec. 29, 2015), the United States Court of Appeal for the Fifth Circuit affirmed an order of the bankruptcy court requiring a secured creditor to reimburse the trustee for expenses paid to preserve real property subject to the creditor's lien until the debtor's eventual surrender of the property to the creditor. The surcharge was based on Section 506(c) of the Bankruptcy Code which provides a "narrow" and "extraordinary" exception to the general rule that the administrative expenses of the bankruptcy estate are to be satisfied by the ...
In a split two-one decision, Florida's Second District Court of Appeal affirmed the decision reached below and held that Fla. Stat. 559.715's notice of assignment provision does not create a condition precedent to foreclosure. The case is Brindise v. U.S. Bank, N.A., 2D14-3316, 2016 Fla. App. LEXIS 653 (Fla. 2d DCA Jan. 20, 2015). The Second DCA further certified the following question to the Florida Supreme Court as a matter of great public importance: "IS THE PROVISION OF WRITTEN NOTICE OF ASSIGNMENT UNDER SECTION 559.715 A CONDITION PRECEDENT TO THE INSTITUTION OF A FORECLOSURE ...
In Cowen Loan Servicing, LLC v. Jean Marie Delvar, 4D14-763, 2015 WL 8347300 (Fla. 4th DCA Dec. 9, 2015) the borrower alleged that he had been offered a loan modification and accepted and relied on that offer by making loan payments in accordance with the offered terms. The trial judge found that this was sufficient to state a defense to foreclosure on promissory estoppel principals and entered an order reforming the mortgage to reflect the alleged new terms. Ocwen appealed the judgment of the trial court. In reversing the trial court, the Fourth District Court of Appeal held that the ...
In OneWest Bank, FSB v. Gino Alessio, et al., 4D14-1444 (Fla. 4th DCA Jan. 6, 2014), the Fourth District Court of Appeal reversed a trial judge's order dismissing a foreclosure after the defendant improperly used a motion in limine to exclude the bank's sole witness and procured dismissal of the action. While the trial court's order was ostensibly a sanction for violating the pre-trial order's requirements regarding witness and exhibit lists, the Fourth District Court of Appeal reversed because the trial court failed to consider the factors set forth in the Florida Supreme Court's ...
In Bank of New York Mellon Trust Company v. Dennis M. Conley, 4D14-2430 (Fla. 4th DCA Jan. 6, 2016), Florida's Fourth District Court of Appeal clarified the methods by which a foreclosure plaintiff can seek to enforce a note indorsed to another party. Specifically, the court held that, "[w]here a bank is seeking to enforce a note which his specially indorsed to another, the bank is a nonholder in possession." The court went on to hold that in order to prove standing as a non-holder the plaintiff must provide proof of an effective transfer, purchase of the debt, or a valid assignment. In ...
Be careful what you wish for. That was the message Middle District of Florida Judge Carlos Mendoza delivered in Claudet v. First Federal Credit Control, Inc., 14-CV-2068 (M.D. Fla. Nov. 17, 2015) to the filer of an improper motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure. The Court awarded attorney's fees AGAINST the filer of the improper Rule 11 motion, finding it was filed for an improper purpose (to harass opposing counsel) and certainly not the outcome the filer had in mind. More interestingly, the Court did so without any motion from the non-movant.The ...
In Hicks v. Wells Fargo, 5D14-1748, Florida's Fifth District Court of Appeal issued the first appellate opinion to pass on the proper method of pleading a re-filed foreclosure where a prior foreclosure effort was dismissed and certain defaults are now outside the five year statute of limitations for mortgage foreclosure. The facts of the case were as follows: a foreclosure complaint was filed in September 8, 2006 premised on the borrowers' alleged failure to make the June 1, 2006 payment. The complaint was voluntarily dismissed in 2008. A new notice of default was sent in 2011 ...
In Wells Fargo Bank v. Lauri Mailloux, 2D14-5116 (Fla. 2d DCA October 30, 2015), the Second District Court of Appeal held that the inclusion of language purporting to render a notice of voluntary dismissal conditional upon an agreement between the parties which did not exist served to invalidate entirely the effect of the notice. Specifically, the Plaintiff is the case dismissed its foreclosure " expressly … conditional upon Plaintiff and the Defendants agreeing to pay their own attorneys' fees and costs." Unfortunately, as the Plaintiff stipulated for purposes of appeal, no ...
On October 14, 2015, the United States Supreme Court heard oral argument in Campbell-Ewald Company v. Gomez, 14-SC-857. The plaintiff in Gomez alleged he received an unsolicited marketing text message advertising the US Navy from the marketing firm Campbell-Ewald Company in violation of the Telephone Consumer Protection Act ("TCPA"). The plaintiff sued on the Campbell-Ewald Company on behalf of himself and a putative class. The facts of the case present a classic example of an effort to "pick off" a putative class representative with an offer of judgment under Rule 68 ...
In Russell v. Nationstar Mortgage, LLC, No. 14-61977-CIV, 2015 WL 5029346, at 5 (S.D. Fla. Aug. 26, 2015), United States District Court Judge Beth Bloom issued litigious borrowers their latest setback in a large scale litigation campaign being conducted by a South Florida consumer law firm. The case is one of many filed by Loan Lawyers, LCC, on behalf of their clients alleging violations of regulations promulgated pursuant to Real Estate Settlement Procedures Act (RESPA) known as Regulation X (Reg X). Many of the cases have the same facts: Loan Lawyers sends a letter requesting a ...
On August 11, 2015, the Federal Communications Commission (FCC) fined Travel Club Marketing, Inc. and its owner $2.96 million dollars for alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, et seq. The TCPA prohibits, amongst other things, the use of an automated telephone dialing system or pre-recorded voice to make telephone calls to a cellular telephone without prior express consent. The Florida based telemarketing firm is alleged to have made 185 such calls to more than 142 cellular telephone numbers, many of which were listed on the National Do ...
With its decision up on re-hearing, Florida's Third District Court of Appeal may be rethinking its decision in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014). In Beauvais, the court held that only a dismissal with prejudice will allow a cause of action for mortgage foreclosure to accrue after a failed foreclosure effort is dismissed. The effect of the decision was to render numerous foreclosures time-barred where a prior dismissal had been taken voluntarily, or otherwise without prejudice. The Third DCA acknowledged its ...
As Florida works through its foreclosure backlog, many of the cases remaining are those with complications, for example a lost promissory note. Such issues are not insurmountable, but do require an attention to detail. For example, in Boumarate v. HSBC Bank USA, N.A., 5D14-1379, 40 Fla. L. Weekly D1899a (Fla. 5th DCA August 14, 2015), Florida's Fifth District Court of Appeal provided guidance on the proof required by Florida's UCC provision for enforcing lost promissory notes. Specifically, Florida Statutes section 673.3091 provides that:
(1) A person not in possession of an ...
The UCC was supposed to make enforcing negotiable instruments a simpler, more streamlined process. It has proven anything but in Florida. Continuing a trend that now stretches back years, mortgage lenders have had an increasingly tough time proving standing to the satisfaction of Florida's District Courts of Appeal in the last few months. Florida's Fourth District Court of Appeal has long been the most vocal on the standing issue. See e.g. McLean v. JP Morgan Chase Bank Nat. Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012). The last few months have been no different. One opinion of particular ...
In Arrasola v. MGP Motor Holdings, LLC, 3D15-381, 40 Fla. L. Weekly D1837b (Fla. 3d DCA August 5, 2015) the Florida Third District Court of Appeal was asked to resolve whether a court or an arbitrator should decide if an automobile purchase agreement containing an arbitration provision was abandoned or terminated by the parties and/or whether or not the arbitration provision itself was unconscionable. While it has become common place for arbitration agreements themselves to contain provisions which give questions of enforceability and arbitrability to the arbitrator, the ...
The opinion of Florida's Third District Court of Appeal in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) has been a lightning rod for criticism from federal courts in Florida. The opinion, which holds that only a dismissal with prejudice will serve to reset the statute of limitations for mortgage foreclosure following a failed foreclosure attempt, has already been rejected by three separate opinions of United States District Courts in Florida. See LNB-017-13, LLC v. HSBC Bank USA, No. 1:14-CV-24800-UU, 2015 WL 1546150 (S.D ...
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 Gorel v. Bank of New York Mellon, 5D13-3272 (Fla. 5th DCA May 8, 2015) Florida's Fifth District Court of Appeal offered relief to increasingly popular arguments using minor defects in paragraph 22 notices of default as a defense to foreclosure. It has become popular among the foreclosure defense bar to point to minor variances between the language used in notices of default and the express language of paragraph 22, and assert that because the notices do not strictly conform word for word with paragraph 22, that foreclosure should be denied. These arguments have had some measure of ...
In LNB-017-13, LLC v. HSBC Bank USA, N.A., 14-cv-24800-UU, 2015 WL 1546150 (S.D. Fla. April 7, 2015), Judge Ursula Ungaro revisited the familiar topic of the statute of limitations for mortgage foreclosure and previously dismissed foreclosure actions. In two prior opinions on the subject, Judge Ungaro dismissed efforts to quiet title to mortgages where the borrowers had alleged the expiration of the statute of limitations as grounds for removing valid mortgage liens from title. See Lopez v. HSBC Bank, N.A., 1:14-cv-20798-UU, 2014 WL 3361755, at 1 (S.D. Fla. Apr. 28, 2014); Torres ...
The Florida Third District Court of Appeal released an opinion which dramatically alters the landscape of foreclosure law in Florida. The opinion is Deutsche Bank Trust Company Americas, v. Harry Beauvais, et al., No. 3D14-575, and it rewrites much of what you thought you knew about the statute of limitations for mortgage foreclosure. Specifically, the opinion adopts an extremely narrow reading of the Fifth District Court of Appeal's ruling in Bartram v. U.S. Bank N.A., 140 So. 3d 1007 (Fla. 5th DCA 2014) and certifies conflict with the Fourth District Court of Appeal's ruling in ...
In Evergrene Partners, Inc. v. Citibank, N.A., 39 Fla. L. Weekly D1342, 2014 WL 2862392 (Fla. 4th DCA June 25, 2014) Florida's Fourth District Court of Appeal affirmed dismissal of a complaint which sought to cancel a residential mortgage by alleging that the statute of limitations had run following dismissal of a failed foreclosure effort by the lender. This decision should have a dramatic effect on similar such claims statewide, and even nationally. It has become increasingly common for borrowers to seek to quiet title or cancellation of mortgages once the applicable statute of ...
In Ros v. Lasalle Bank, N.A., et al., 14-CIV-22112-BLOOM/VALLE (S.D. Fla. July 18, 2014) the Southern District of Florida became the first United States District Court to apply the holding in Evergrene Partners, Inc. v. Citibank, N.A., 39 Fla. L. Weekly D1342 (Fla. 4th DCA 2014) regarding efforts quiet title of a mortgage based upon the alleged expiration of the statute of limitations for mortgage foreclosure. As discussed in previous posts, after a failed foreclosure lawsuit occurs, it has become common for borrowers to file quiet title suits which allege that the applicable five ...
In Alaimo v. HSBC Mortgage Services, Inc., 2014 WL 930787 (S.D. Fla. March 10, 2014) the Honorable Robert N. Scola extended his previous decision in Signori v. Fed. Nat'l Mortg. Assoc., 934 F.Supp.2d 1364, 1367 (S.D.Fla. 2013) holding that an assignee of a mortgage loan cannot be held liable for its servicer's violation of section 1641(f)(2) of the Truth in Lending Act ("TILA") or section 226.36(c)(1)(iii) or Regulation Z. Section 1641(f)(2) requires a servicer to identify and provide certain contact information for the owner or master servicer of a borrower's loan upon written ...
In a case of first impression, the March 21, 2014 opinion U.S. Bank National Association, as Trustee for the GSAMP Trust 2006-NCI Mortgage Pass-Through Certificates, Series 2006-NCI v. Jose Busquets, Case No. 2D13-280, the Second District Court of Appeal upheld specific language in a residential mortgage foreclosure notice of default and intent to accelerate as compliant with the terms of the mortgage. This case represents the first appellate ruling in Florida addressing certain specific language in nearly ubiquitous "paragraph 22" notice of default and intent to accelerate ...
On July 10, 2013, the CFPB issued mortgage rules under Regulation Z and Regulation X pursuant to its authority under the Dodd-Frank Act. The CFPB further amended the mortgage rules on September 15, 2013 and October 1, 2013. The result is a super regulation which keeps the original framework of Regulations X and Z, but adds entirely new provisions addressing eight major topics. In this article, David A. Elliott, Nicholas S. Agnello and Seth I. Muse discuss the new regulations and the possible effect on mortgage litigation. You can find a copy of the article by clicking here. For more ...
In Reed v. Chase Home Finance, LLC, --- F.3d ----, 2013 WL 3868079 (11th Cir. 2013), the Eleventh Circuit Court of Appeals evaluated one of the more recent additions to the Truth in Lending Act ("TILA"), 15 U.S.C. 1641(g), which requires a loan servicer to provide written notice of an assignment to the obligor. In Reed, the Plaintiff's claimed that Chase violated 1641(g) by failing to inform them that Chase had been assigned an interest in the Plaintiff's mortgage by virtue of an assignment of mortgage. However, the Eleventh Circuit affirmed the summary judgment entered in favor of ...
The Second Circuit Court of Appeal affirmed the dismissal of a Fair Debt Collection Practices Act ("FDCPA") claim brought by a non-debtor under the mootness doctrine after an offer of judgment conveyed orally in open court was rejected. In Doyle v. Midland Credit Management, Inc. ---- F. 3d ---, 2013 WL 3242148 (2d Cir. June 28, 2013), the Second Circuit held that an offer of judgment need not comply with the offer of judgment rule in order to render a case moot. Doyle filed suit against Midland alleging that Midland had harassed him, failed to disclose Midland was a debt collector, and made ...
Judge Phyllis J. Hamilton of the Northern District of California, in Roberts v. Paypal, Inc., 2013 WL 2384242 (N.D. Cal. May 30, 2013), has added to the growing list of cases which hold that when a consumer supplies their cellular telephone number to a business, that consumer has supplied the necessary prior express consent to receive certain calls otherwise prohibited by the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227(b)(1). In the absence of prior express consent, or other extenuating circumstances, the TCPA prohibits, among other things, telephone calls to a ...
In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 1283885, 11-CV-61936 (S.D. Fla. March 27, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida issued an important opinion concerning the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C § 227(b)(1)(A)(iii), in a case dealing with one of the more troubling trends in TCPA litigation - efforts to hold individual officers or stakeholders of TCPA defendants individually liable. In Mais, Jack W. Brown III ("Brown") was named a defendant in a putative TCPA class action. Brown was allegedly the ...
In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 1283881, 11-cv-61357 (S.D. Fla. March 26, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida certified a Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii), and Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § § 1692e(11) and 1692d(6), class action over the objection of the Defendant. The Defendant objected to the Plaintiff's standing on both Article III constitutional grounds and based upon the alleged lack of statutory standing under the TCPA. The ...
In Prevratil v. Deutsche Bank Nat'l Trust Co., 38 Fla. L. Weekly D569 (Fla. 2d DCA March 8, 2013), the Florida Second District Court of Appeal continue the trend of Florida Appellate Court reversals of over-zealous trial court judges reading more into the requirement in Rule 1.110(b) that foreclosure complaints be verified. Previously, Florida's appellate courts have held that the verification of a foreclosure complaint need not comply with Fla. Stat. 92.525 (requiring attestation that facts "true" without qualification as to the signors knowledge and belief), see Trucap ...
A recent federal court decision, Rogers v. Virtuoso Sourcing Group, LLC, 2013 WL 772865, 12-CV-01511 (S. D. Ind. Feb. 28, 2013) sheds new light on whether the Fair Debt Collection Practices Act ("FDCPA") requires a debt collector to affirmatively undertake to update its credit reporting to reflect a dispute by the consumer concerning the validity of the debt. The District Court for the Southern District of Indiana held that the FDCPA, specifically those provisions found at 15 U.S.C 1692e(8), contains no such affirmative requirement when the dispute is tendered to the debt collector ...
The Florida Supreme Court's opinion in Pino v. Bank of New York, 38 Fla. L. Weekly S78a (Fla. Feb. 7, 2013) is an important opinion concerning voluntary dismissal of actions where fraud on the Court has been alleged by the Defendant. In Pino, the Florida Supreme Court upheld the Fourth District Court of Appeal, and held that a trial court lacks jurisdiction to reinstate a dismissed action to award sanctions for fraud on the Court, except when the fraud, if proven, resulted in plaintiff securing affirmative relief to the detriment of the defendant, and upon obtaining that relief, the ...
- District Court Rules that Consumer’s Claims Under Georgia’s Fair Business Practices Act Relating to Sale and Finance of Automobile are Preempted
- CFPB Seeks to Remove Medical Bills from Credit Reports
- Supreme Court: District Court Must Stay its Proceedings While an Interlocutory Appeal is Taken on the Question of Arbitrability
- Eleventh Circuit Confirms Investigation into Dispute Involving Identity Theft Was Reasonable and Affirms Summary Judgment on FCRA Claim
- Evasive Deposition Tactics by the CFPB Supported Dismissal as a Sanction, Affirmed by Eleventh Circuit
- Seventh Circuit Holds Bankruptcy Debtor Has No Standing to Assert FDCPA Claims
- The Second Circuit Weighs in on the Constitutionality of the CFPB’s Funding Structure, Disagreeing with the Fifth Circuit
- The U.S. Supreme Court Granted Certiorari to Determine Whether the CFPB’s Funding Structure Violates the Appropriations Clause of the United States Constitution
- The CFPB and New York Attorney General’s Office Levy New Attack On Subprime Indirect Auto Financing in Complaint Filed Against Credit Acceptance Corporation
- Third Circuit Finds Vacatur of Default Judgment Does Not Make Collection Activity Retroactively Unlawful
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