The Eleventh Circuit Court of Appeals and Georgia Court of Appeals recently issued competing orders about mortgage borrowers' standing to challenge security deed assignments. Though the Eleventh Circuit affirmed that borrowers cannot challenge their security deed assignments when making wrongful foreclosure claims, the Georgia Court of Appeals found that borrowers can challenge their assignments under Georgia's Quiet Title Act. This newly-clarified distinction will perhaps provoke borrowers to file quiet title actions to frustrate Georgia foreclosure efforts in the ...
Numerous states have adopted statutory bans on "unfair" or "deceptive" trade practices. When state legislatures enacted those statutes, most of them decided to let consumers sue directly for damages. However, many state legislatures also barred consumers from bringing class actions under those state consumer-protection statutes. See, e.g., Ala. Code § 8-9-10(f) (barring class actions under Alabama's Deceptive Trade Practices Act); O.C.G.A. § 10-1-399(a) (barring class actions under Georgia's Fair Business Practices Act); Miss. Code § 75-24-15(4) (barring class ...
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 ...
In Sas v. Federal National Mortgage Ass'n., No. 2D14-1003, 2015 WL 3609508 (Fla. 2d DCA June 10, 2015) the appellate court was faced with the issue of whether there was a requirement that the records custodian of the current loan servicer have personal knowledge of the manner in which the prior loan servicer maintained and created its business records in order for the records to be introduced into evidence under section 90.803(6), Fla. Stat. During the hearing on damages before the trial court, the current loan servicer, Seterus, had its records custodian testify that: he was familiar ...
On June 5, the Tennessee Supreme Court rejected a per se rule of unconscionability for non-mutual arbitration clauses, holding them enforceable if not too-one-sided and commercially reasonable under the circumstances. Berent sued his mobile-home sellers in chancery court, arguing that foreclosure exceptions for the seller within a generally broad-form arbitration clause rendered it unconscionable and unenforceable. The trial and intermediate appellate courts agreed, under the Supreme Court's prior decision Taylor v. Butler, 142 S.W.2d 277 (TN 2004). The Sellers sought ...
In Lankhorst v. Independent Sav. Plan Co., No. 14-11449, 2015 WL 3440288 (11th Cir., May 29, 2015), the Eleventh Circuit Court of Appeals held that the credit agreement the Plaintiff's entered into did not convey the requisite security interest in the Plaintiffs' primary residence in order to trigger the TILA protections on which the Plaintiffs relied. Therefore, the district court did not err in granting summary judgment in favor of the defendants. The Plaintiffs agreed to purchasing a water treatment system and having it installed in their home. However, the purchase and ...