Constitutional Law Finance & Banking Civil Procedure

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Judge Posner Sets Out to Clean Up Frivolousness

Nate Carter probably wasn’t expecting this. Mr. Carter had lost his home to a mortgage foreclosure. So seemingly out of blind rage—or at least the sort of anger that when coupled with ignorance leads one to do illogical...more

The Viability of the Equitable Mootness Doctrine in the Third Circuit: A Moot Point?

In the bankruptcy context, effectively appealing an order confirming a debtor’s plan of reorganization is not always a sure bet, as a court may refuse to entertain the appeal in the name of equitable mootness. Equitable...more

Hacked Class Can Sue Pre Injury

Last week, a three-judge panel of the 7th U.S. Circuit Court of Appeals held in Remijas v. Neiman Marcus Group LLC that individuals whose debit and credit card numbers were stolen by cyberthieves who had hacked into Neiman...more

Does Free Credit Monitoring Do More "Harm" Than Good?

The Seventh Circuit reinstates the Neiman Marcus data breach class action lawsuit after finding that increased risk of future fraudulent charges and greater susceptibility to identify theft are sufficient for standing. ...more

D.C. Circuit Rules Small Bank has Standing to Challenge the Constitutionality of Consumer Financial Protection Bureau

Last week, the D.C. Circuit Court of Appeals reversed a D.C. District Court decision dismissing a bank’s complaint challenging the constitutionality of the CFPB based on lack of standing. The district court had concluded that...more

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

Remijas v. Neiman Marcus: Seventh Circuit Affords Broad Standing To Sue Over Consumer Data Breaches

When hackers breach a business’s systems, class actions are sure to follow. Often, however, these suits have faltered right out of the starting gate. Citing the Supreme Court’s 2013 decision in Clapper v. Amnesty...more

New Court Decisions Expose Non-U.S. Banks With U.S. Branches To New Risks Of Litigation In American Courts

Non-U.S. banks with branches in New York and elsewhere in the United States find themselves sued or otherwise exposed to judicial orders in American courts with regularity. The cases reflect the full range of U.S. legal...more

Third Circuit Rules That Actual Harm Needed for Monetary Equitable Remedy

The Third Circuit recently held that a plaintiff was not entitled to a monetary, equitable remedy under ERISA § 502(a)(3) where he failed to prove actual harm. Perelman v. Perelman, Nos. 14–1663, 14–2742, 2015 WL 4174537 (3d...more

California Supreme Court Grants Review of Homeowner's Wrongful Foreclosure Claims

On July 15, 2015, the California Supreme Court granted review of Boyce v. T.D. Service Company (2015) 235 Cal.App.4th 429. (Supreme Court Case No. S226267.) In Boyce, the Court of Appeal held that a plaintiff's wrongful...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending June 26 & July 3, 2015

REAL PROPERTY UPDATE - Standing: parent entity has no right to enforce note and mortgage owned by subsidiary entity absent evidence that parent entity acquired such right – Wright v. JPMorgan Chase Bank, N.A., Case No....more

Lending Industry Take Note: Federal Fair Housing Act Provides For Disparate-Impact Liability

The status quo stands, to a degree. By a 5-4 vote, the United States Supreme Court has concluded that the federal Fair Housing Act (“FHA”) authorizes lawsuits not just for intentional discrimination, but for conduct taken...more

U.S. Supreme Court Holds Disparate Impact Claims Can Be Brought under Fair Housing Act

In Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., decided on June 25, 2015, the United States Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act....more

Supreme Court Upholds Disparate Impact: What are the Practical Consequences for Mortgage Lenders?

The Supreme Court has held that disparate impact claims are valid under the federal Fair Housing Act (the “FHA”). In essence, this means that liability under the FHA can be proven by showing discriminatory effects of...more

Fair Housing Disparate Impact Claims Survive SCOTUS Challenge

The U.S. Supreme Court has decided, 5 - 4, that the Fair Housing Act (FHA) permits the use of a major antidiscrimination tool, the legal theory of disparate impact. Texas Department of Housing and Community Affairs v. The...more

Special Alert: Disparate Impact Under the Equal Credit Opportunity Act After Inclusive Communities

On June 25, the Supreme Court in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. held that disparate-impact claims are cognizable under the Fair Housing Act (FHA). The Court, in a 5-4...more

Disparate Impact Doctrine Survives Supreme Court Review

After years of debate and false starts, the Supreme Court has held that the Fair Housing Act (“FHA”) permits disparate impact claims. In Texas Department of Housing and Community Affairs v. Inclusive Communities Project,...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending June 19, 2015

REAL PROPERTY UPDATE: Tax Deed Sale/Due Process: after certified letter notifying property owner of tax deed sale returned unopened and unclaimed, due process required clerk of court take reasonable steps to notify...more

New York’s Highest Court Clarifies Judicial Foreclosure Standing Requirements

The New York Court of Appeals has clarified the requirements for showing standing to pursue judicial foreclosures in New York state courts after borrowers default on payment obligations, in a ruling that could resolve...more

New York Court of Appeals Rules Possession of Note, Rather than Mortgage, Conveys Standing to Commence Foreclosure Action

On June 11, the New York Court of Appeals held that a loan servicer who holds the note has standing to commence a mortgage foreclosure action against a borrower even if the servicer cannot show that it also holds the...more

This Week In Securities Litigation

The question of forum selection by the SEC was a key issue this week. While to date suits challenging the SEC’s right to bring an action as an administrative proceeding rather than in federal court have had little success –...more

City's Revenue Transfer From its Wastewater Utility to its General Fund Is Justified

California Appellate Court Holds that Transfer Did Not Violate Proposition 218 - In a challenge to the transfer of revenues from a city’s wastewater utility to its general fund, a California Appellate Court held Tuesday...more

Constitutional Court of Azerbaijan Rules on Legality of Loans Denominated in Foreign Currency

One consequence of this move was that loans granted by local banks to local customers in foreign currency became more expensive, because the Azerbaijani Manat was weakened by 25 percent. This raised a question of whether...more

Supreme Court Update: Elonis V. United States (13-983), Taylor V. Barkes (14-939) And Bank Of America V. Caulkett (13-1421)

The Court handed down four opinions and a summary reversal to kick off the busiest month of the term. This update will cover Elonis v. United States (13-983), the much anticipated "Facebook threats" case, along with Taylor v....more

Supreme Court Decides to Maintain the Viability of the U.S. Bankruptcy Courts, But a Key Question Remains Unresolved

Four years ago, in Stern v. Marshall, the Supreme Court stunned many observers by re-visiting separation of powers issues regarding the jurisdiction of the United States bankruptcy courts that most legal scholars had viewed...more

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