Nicholas Agnello

Nicholas Agnello

Burr & Forman

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Banking & Financial Services E-Note - November 2015

In an article published on November 5, 2015 by Law360, Nick Agnello provides insight on a recent landmark decision by the Eleventh Circuit, and how it is creating a body of case law empowering local governments to bring...more

11/23/2015 - Debt Collection Dodd-Frank Fair Housing Act (FHA) Federal Student Aid Financial Sector Unfair or Deceptive Trade Practices

Florida Appellate Court Provides New Insight on the Statute of Limitations and Pleading Re-Filed Foreclosures

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...more

11/17/2015 - Banking Sector Delinquent Borrowers Foreclosure Mortgages Statute of Limitations

Florida Appellate Court Rejects Conditional Notices of Voluntary Dismissal – Treats as Totally Ineffectual

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...more

11/11/2015 - Attorney's Fees Bank of America Banking Sector Voluntary Dismissals Wells Fargo

Third DCA Rejects Use of Strict Compliance Standard for Paragraph 22 Notices, Expressly Adopts Substantial Compliance

Many judges in Miami-Dade County and elsewhere held the view that “strict” compliance was the standard to determine if a notice of default complied with the provisions of a paragraph 22 of a mortgage.  To this day, no...more

11/9/2015 - Compliance Consumer Lenders Foreclosure Mortgages Notice of Default

Banking & Financial Services E- Note - October 2015

Last week the Federal Trade Commission ("FTC") issued its muchanticipated Staff Guidance on what sort of supervision states should provide to regulatory boards in order for those boards to qualify for antitrust...more

11/9/2015 - Antitrust Immunity Discovery Financial Institutions Foreclosure International Data Transfers Mortgages Regulatory Oversight Standing TILA-RESPA Integrated Disclosure Rule (TRID) US-EU Safe Harbor Framework

Supreme Court Hears Oral Argument in TCPA Case Concerning “Picking Off” a Class Rep with an Offer of Judgment

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...more

10/29/2015 - Advertising Campbell Ewald v Gomez Class Action Marketing Privacy Laws Public Works Putative Class Actions Right to Privacy Rule 68 SCOTUS Sovereign Immunity TCPA Telemarketing Text Messages U.S. Navy

Appellate Court Rejects Claim That Borrower Must Be Permitted to Conduct Life of Loan Standing Discovery or Examine Bank Policies...

Standing is one of the top issues in foreclosure case law. So it comes as no surprise that the issue of standing is also a common focal point for discovery disputes in foreclosures. It has become common foreclosure defense...more

10/8/2015 - Bank of New York (BNY) Mellon Banking Sector Banks Borrowers Consumer Lenders Discovery Financial Institutions Foreclosure Mortgage Lenders Mortgages Standing

TRID: New Requirements for Real Estate Closing Disclosures Are Here, Will There be A Grace Period?

It’s finally here. Over the weekend, the Consumer Financial Protection Bureau’s (CFPB) long awaited and oft delayed integration of the disclosures required by the Federal Truth in Lending Act (TILA) and Real Estate...more

10/6/2015 - Banking Sector CFPB Closing Documents Compliance Consumer Financial Products Consumer Lenders Disclosure Requirements Financial Institutions HUD Loans Mortgage Lenders Mortgages Residential Real Estate Market RESPA TILA-RESPA Integrated Disclosure Rule (TRID) Truth in Lending Act (TILA)

Federal Courts Rejecting Hyper-Technical Claims on Reg X Notice of Error/Request for Information Provisions

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...more

9/29/2015 - Attorney's Fees Banking Sector Borrowers Default FCCPA Financial Institutions Inspections Loans Mortgage Lenders Mortgage Servicers Mortgages Motion to Dismiss Regulation X Request For Information RESPA

Banking & Financial Services E-Note - September 2015

On September 8, 2015, United States District Judge Marvin H. Shoob declared Georgia’s statutory garnishment process unconstitutional in Strickland v. Alexander. In what is sure to be the first of many county-level responses,...more

9/29/2015 - Banking Sector Banks Chamber of Commerce Chapter 11 Chapter 7 Commercial Bankruptcy Compliance Construction Industry Debt Collection Debt Collectors Declaratory Rulings Dish Network DOL FCC Financial Institutions Financial Markets FLSA Garnishment Minimum Salary Real Estate Market Rite Aid Salesforce TCPA Unpaid Overtime Wage and Hour White-Collar Exemptions

Focus on the TCPA: Consolidated Appeal of FCC’s TCPA Order Continues to Grow

The Federal Communications Commission’s (FCC) July 10, 2015 Declaratory Ruling and Order on the Telephone Consumer Protection Act (TCPA) was received by many in the business community with great concern. The Order’s seemingly...more

9/14/2015 - Appeals Bankers Chamber of Commerce Compliance Declaratory Rulings Dish Network FCC FTC Healthcare HIPAA Prior Express Consent Right to Privacy Rite Aid Robocalling Safe Harbors Salesforce SiriusXM TCPA

TRID: New Mortgage Loan and Real Estate Closing Disclosure Requirements Already Causing Headaches

The long heralded TILA/RESPA Integrated Disclosures (TRID) are coming, and they are already causing some headaches in the real estate market. Congress provided for the new disclosures in the 2010 Dodd-Frank Wall Street Reform...more

9/2/2015 - CFPB Closing Documents Consumer Lenders Disclosure Requirements Dodd-Frank Financial Institutions Good Faith HUD Loans Mortgage Lenders Mortgage Servicers Mortgages National Association of Realtors Residential Real Estate Market TILA-RESPA Integrated Disclosure Rule (TRID)

Yet Another Florida Court Rejects Unpopular Decision on Statute of Limitations for Mortgage Foreclosure, But This Time it’s...

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...more

8/26/2015 - Appeals Bank of America Citibank Consumer Lenders Deutsche Bank Dismissal With Prejudice FL Supreme Court Florida Foreclosure Mortgage Lenders Mortgage Servicers Mortgages Statute of Limitations

Framing the Issues on Appeal in DC Circuit’s Review of the FCC’s Aggressive TCPA Order

The Federal Communications Commission (FCC) disappointed many with its July 1, 2015 Declaratory Ruling and Order on the Telephone Consumer Protection Act (“TCPA”). The TCPA prohibits, amongst other things, using an automated...more

8/19/2015 - Abusive Conduct Training Cell Phones Compliance Declaratory Rulings FCC PACE Prior Express Consent Reasonable Expectation of Privacy Robocalling SiriusXM Smartphones TCPA Telecommunications

Florida Appellate Court Provides Guidance on Proof Required to Enforce Lost Negotiable Instruments

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...more

8/18/2015 - Consumer Lenders Financial Institutions Florida Foreclosure HSBC Mortgage Lenders Mortgages Promissory Notes Real Estate Market Residential Real Estate Market UCC

CFPB Provides Guidance on Private Mortgage Insurance Cancellation and Termination Requirements

On August 4, 2015 the Consumer Financial Protection Bureau (CFPB) issued a compliance bulletin on the private mortgage insurance (PMI) cancellation and termination provisions contained in the Homeowners Protection Act (HPA)....more

8/17/2015 - CFPB Class Action Compliance Financial Institutions Homeowners Protection Act. Insurance Industry Loans Mortgage Insurance Mortgage Servicers Mortgages Residential Property Owners Residential Real Estate Market Termination Clauses

Another Bankruptcy Court Confirms Plan Reference to “Surrender” Means Not Defending a Lender’s Foreclosure

Foreclosure defense and bankruptcy often go hand in hand, but sometimes it seems like the left hand doesn’t talk to the right. This has proven especially common with bankruptcy plans that propose to “surrender” real property...more

8/13/2015 - Banking Sector Banks Chapter 13 Consumer Bankruptcy Consumer Lenders Financial Institutions Foreclosure Lenders Loan Modifications Mortgage Servicers Mortgages

Burr Commentary: Florida’s District Courts of Appeal Continue to Tighten Standing Requirements for Foreclosures

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...more

8/11/2015 - Bank Notes Borrowers Consumer Lenders FDIC Financial Institutions Florida Foreclosure JPMorgan Chase Lenders Mortgage Lenders Mortgage Servicers Mortgages Receivership Standing UCC Washington Mutual

PHH Wins Stay of $109M CFPB Enforcement Penalty

On August 5, 2015, PHH Corp. (“PHH”) won a stay of the $109M penalty handed down by Consumer Financial Protection Bureau (“CFPB”) director Rich Cordray. Cordray’s aggressive legal reasoning and the harsh penalties he imposed,...more

8/10/2015 - Administrative Procedure Act ALJ Banking Sector Banks Captive Insurance Company CFPB Consumer Lenders Dodd-Frank Enforcement Actions Financial Institutions HUD Insurance Industry Kickbacks Lenders Mortgage Insurance Mortgage Lenders Mortgages Motion To Stay Penalties Popular Reinsurance RESPA Richard Cordray

Florida’s Third DCA Enforces Florida Arbitration Statute – Sends Questions of Enforceability and Unconscionability to Arbitrator

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...more

8/7/2015 - Arbitration Arbitration Agreements Automotive Industry Automotive Loans Consumer Financial Contracts Florida

Chorus of Critics Grows Again for Third DCA’s Beauvais Opinion on Statute of Limitations, Rehearing Granted by Third DCA

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...more

8/5/2015 - Bank of America Borrowers Citibank Deutsche Bank Dismissal With Prejudice Financial Institutions FL Supreme Court Florida Foreclosure HSBC Lenders Loans Mortgage Lenders Mortgages Residential Property Owners Statute of Limitations US Bank

DC Circuit Keeps Alive Bank’s Constitutional Challenge to CFPB’s Existence

Most constitutional challenges to agency action arise as a defense to an enforcement action. However, State National Bank of Big Spring, Texas (the “Bank”) has led a constitutional challenge to the very existence and...more

7/30/2015 - Banking Sector Banks CFPB Dodd-Frank Financial Institutions Recess Appointments Richard Cordray

Third Federal Judge in a Row Declines to Follow Florida Appellate Opinion on Statute of Limitations for Mortgage Foreclosure

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...more

7/29/2015 - Bank of America Citibank Deutsche Bank Dismissal With Prejudice Financial Institutions Florida Foreclosure Mortgage Lenders Mortgages Popular Statute of Limitations

Burr Commentary: Third District Court of Appeal Adds to List of Solutions to Prior Servicer Business Records Issue

In Bank of America, N.A., v. Delgado, et al., 3D13-910 (Fla. 3d DCA May 6, 2015) the Third District Court of Appeal offered some relief to banks and loan servicers still reeling from the effects of Hunter v. Aurora Loan...more

5/14/2015 - Appeals Bank of America Business Records Hearsay Loan Documentation Mortgage Lenders Mortgage Servicers Mortgages

Burr Commentary: Florida’s 5th DCA Holds Prejudice Necessary to Show Defense Under Paragraph 22, Splits With Own Panels in Haberl...

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...more

5/14/2015 - Appeals Foreclosure Mortgage Lenders Notice of Default Prejudice

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