In Riddle v. Bank of America Corp., et al., 2013 WL 1482668 (E.D. Pa. Apr. 11, 2013), the federal district court for the Eastern District of Pennsylvania held plaintiffs' allegation that the defendants actively concealed a reinsurance kickback scheme was sufficient to equitably toll the running of RESPA's one-year statute of limitations and, as such, that plaintiffs' RESPA claim could survive dismissal.
The plaintiffs filed a putative RESPA class action suit against Bank of America and various mortgage insurers claiming that the defendants engaged in an illegal scheme whereby ...
In Zaborowski v. MHN Gov't Services, Inc., 2013 WL 1363568 (N.D. Cal. April 3, 2013), the Northern District of California held that an employment contract arbitration agreement, which incorporated the filing fee schedule set forth in the rules of the American Arbitration Association ("AAA"), was unconscionable. The Zaborowski plaintiffs brought a class action lawsuit against their employer seeking damages in excess of $75,000, alleging that the employer had deprived them of overtime compensation by misclassifying them as independent contractors rather than employees. The ...
In Suzanne Hill, et al. v. Midland Funding, LLC, et al., No. 1:12-cv-02397-CCB (D.MD. Apr. 16, 2013), Plaintiffs brought a putative class action against Midland Funding LLC (Midland) alleging violations of the Fair Debt Collection Practices Act (FDCPA), the Maryland Consumer Debt Collection Act (MCDCA) and the Maryland Consumer Protection Act (MCPA). In support of their claims, Plaintiffs contend that Midland violated the FDCPA when it filed collection law suits against them listing the address of its parent company, an address at which the stated plaintiff in each lawsuit was ...
Two recent federal court decisions involving claims under the Fair Debt Collection Practices Act ("FDCPA") highlight why FDCPA defendants should not overlook the most basic elements of an FDCPA claim in forming their defense. In both of these cases, the courts dismissed the plaintiffs' claims for failure to allege that the defendants were "debt collectors." See Hunt v. U.S. Bank, N.A., et al., 2013 WL 1398964 (C.D. Cal. Apr. 3, 2013); Izmirligil v. Bank of New York Mellon, et al., 2013 WL 1345370 (E.D.N.Y. Apr. 2, 2013). Both the Hunts and Izmirligil brought FDCPA claims against 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 Joy v. MERSCORP, Inc., No. 5:10-CV-218-FL, 2013 WL 1246856 (E.D.N.C. Mar. 27, 2013), the Eastern District of North Carolina held that a borrower stated a claim for a violation of the FDCPA against a loan servicer in connection with documents filed in foreclosure proceedings. The plaintiff sued several defendants alleging a violation of § 1692e of the FDCPA claiming that the defendants filed false, deceptive, and misleading documents in connection with foreclosure proceedings. Nationwide Trustee Services, Inc. ("Nationwide") moved for a judgment on the pleadings, and Litton ...
Judge Donald Middlebrooks recently dismissed a plaintiff's "permissible purpose" claim under the Fair Credit Reporting Act ("FCRA") where the alleged facts showed that the defendant/creditor was attempting to collect a debt and had a good faith belief that the account belonged to the plaintiff. In Little v. Asset Acceptance, Case No. 9:12-cv-81116 (S.D. Fla.), Carole Little filed suit against Asset Acceptance, LLC, claiming that Asset had no permission to access her credit report, that she had never applied to Asset for credit, and that she does not maintain a credit account with ...
The Tenth Circuit recently held that a borrower presented sufficient evidence of actual damages to sustain a FCRA claim against a loan servicing company. The Tenth Circuit also affirmed the district court's decision to dismiss the FCRA claim with respect to a willful violation and the FDCPA claim. In Llewellyn v. Allstate Home Loans, Inc., --- F.3d ---, 2013 WL 1238615 (10th Cir. Mar. 28, 2013), the plaintiff filed suit against a loan servicing company and law firm retained to commence foreclosure proceedings alleging violations of the FDCPA, FCRA, and state law. The district court ...
A federal court in Illinois recently denied a motion for class certification of a TCPA claim due to the predominance of individualized issues of proving whether the putative class members had consented to the defendant's phone calls. The case illustrates the point that defining a class to include only those debtors who had not provided their phone numbers to the original creditor in a transaction does not always eliminate the individualized nature of the issue of consent. In the case, Jamison v. First Credit Services, Inc., 2013 WL 1248306 (N.D. Ill. Mar. 28, 2013), the named plaintiff ...