The Tenth Circuit issued an opinion last week in Berneike v. CitiMortgage, Inc., 2013 WL 657032 (10th Cir. Feb. 25, 2013), addressing whether a district court properly dismissed a borrower's Real Estate Settlement Procedures Act ("RESPA") claim against CitiMortgage, Inc. ("Citi"). The subject complaint alleged that CitiMortgage, by failing to respond to multiple qualified written requests ("QWRs"), violated RESPA. On three different occasions in early 2010, the borrower sent a barrage of faxes to Citi, each alleging that Citi was improperly servicing the borrower's ...
The U.S. District Court for the District of Colorado recently decided that an offer of judgment with regard to all claims between a plaintiff and defendant did not moot all of the plaintiff's FDCPA claims pursuant to Rule 68 of the Federal Rules of Civil Procedure, in Orrick v. Midland Credit Management, Inc., No. 11-cv-03133-PAB-KMT, 2013 WL 657877 (D. Colo. Feb. 22, 2013). In Orrick, the plaintiff's complaint alleged the defendant violated the Fair Debt Collection Practices Act ("FDCPA") by communicating information regarding the plaintiff's debt to a credit reporting agency ...
Oratai Culhane v. Aurora Loan Services of Nebraska
United States Court of Appeals
First Circuit
February 15, 2013
Relevant Facts: In April 2006, Culhane refinanced a mortgage on her single family home and delivered a promissory note to Preferred Financial Group, Inc. d/b/a Preferred Mortgage Services (the "Lender" or "Preferred"). Culhane simultaneously executed a mortgage in favor of MERS as nominee for Preferred and Preferred's successors and assigns. After making the loan, Preferred transferred Culhane's note to Deutsche Bank Trust Company Americas ("Deutsche" ...United States Supreme Court
Opinion Date: February 26, 2013
On Tuesday, the Supreme Court of the United States issued an opinion in Marx v. General Revenue Corp., 568 U.S. ___, 2013 WL 673254 (February 26, 2013), holding that "a district court may award costs to prevailing defendants in Fair Debt Collection Practices Act ("FDCPA") cases without finding that the plaintiff brought the case in bad faith and for the purpose of harassment." Id. at 2. 15 U.S.C. § 1692k(a)(3) of the FDCPA allows for the recovery of attorney's fees and costs by a defendant in an ...The Sixth Circuit issued an opinion last week in Christian County Clerk v. Mortgage Electronic Registration Systems, Inc., et al., 2013 WL 565198 (6th Cir. Feb. 15, 2013), addressing whether the district court properly dismissed two Kentucky county clerks' complaint against MERS and fifteen financial institutions for violations of state recording statutes. The subject complaint alleged that the Defendants, by establishing and participating in the MERS system, violated Kentucky law by failing to record mortgage assignments and, more specifically, created MERS "to enable its ...
A New Jersey federal district court recently denied a motion to reconsider its previous holding that state law limitations on class actions do not apply to TCPA claims filed in federal court. At issue in the case, Landsman & Funk, P.C. v. Skinder-Strauss Associates, No. 08-3610, 2013 WL 466448 (D.N.J. Feb. 8, 2013), was a New York procedural law, C.P.L.R. § 901(b), which prohibits statutory class actions unless the statute creating liability explicitly provides for recovery in the form of class actions. The court had previously determined that the statute would apply under a choice of ...
The United States District Court for the Southern District of California gave its preliminary approval to a $17.1 million settlement fund in a class action brought under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § § 227 et seq. in Malta v. Federal Home Loan Mortgage Corporation, et al., No. 10-CV-1290 BEN (NLS), 2013 WL 444619 (S.D. Cal. Feb. 5, 2013). In Malta, the plaintiffs alleged that one of the defendants, a loan servicer, violated the TCPA by calling the cellular phones of account-holders "without 'prior express consent,' using an 'automatic telephone dialing ...