Residential Real Estate Civil Procedure Finance & Banking

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Still No “Free House” in Florida – Florida Supreme Court Denies Motions for Rehearing in Bartram

On March 16, 2017, the Florida Supreme Court solidified the position of its November 3, 2016 opinion in Bartram v. U.S. Bank, N.A., SC14-1266, 2016 WL 6538647 by denying the motions for rehearing filed in response to the...more

Justice Department Tells Court CFPB is Unconstitutional

The Department of Justice has filed an amicus brief in the case of PHH Corp. v. Consumer Financial Protection Bureau pending before the United States Court of Appeals for the District of Columbia Circuit and is scheduled for...more

Trump’s DOJ supports striking Cordray’s removable-only-for-cause protection from Dodd-Frank

The DOJ submitted its amicus brief in the PHH case on Friday, March 17.  We have blogged extensively about this case since its inception. Unsurprisingly, the Trump DOJ supports striking from Dodd-Frank the...more

Florida Supreme Court Refuses to Reconsider Landmark 2016 Ruling on Statute of Limitations for Mortgage Foreclosure

On March 16, 2017, the Florida Supreme Court denied motions for rehearing and/or clarification filed by petitioners Lewis Brook Bartram, the Plantation at Ponte Vedra, and Gideon M.G. Gratsiani. All three petitioners...more

Two’s Company, but Three’s a Crowd: A Third Party's Right to Intervene in a Foreclosure Lawsuit

Are subsequent title holders who obtain an interest in real property during the pendency of a foreclosure lawsuit where a lis pendens has been properly recorded (referred to as a “Purchaser Pendente Lite”), entitled to join...more

PHH files opening en banc brief; seven supporting amicus briefs filed

On Friday, PHH filed its opening en banc brief with the D.C. Circuit in the rehearing of its appeal of Director Cordray’s June 2015 decision that affirmed an administrative law judge’s (ALJ) recommended decision concluding...more

Third DCA Rejects 57.105 Attorney’s Fees Where Plaintiff Failed to Prove Standing

On March 1st, Florida’s Third District Court of Appeal affirmatively held that a mortgage holder who fails to prove its standing to foreclose is not liable to a defendant borrower for prevailing party attorney’s fees. The...more

D.C. Circuit grants motion of U.S. for leave to file amicus brief in PHH by March 17; denies motions to intervene

The D.C. Circuit has entered an order granting the unopposed motion of the United States for leave to file an amicus brief in PHH by March 17, 2017.  As we previously observed, the motion appears to signal the DOJ’s intention...more

Real Property & Title Insurance Update: Weeks Ending February 17 & 24, 2017

Foreclosure: foreclosing bank’s allegation that borrowers were in a continuing state of default sufficient to satisfy five-year statute of limitations even though stated initial default date was more than five years prior to...more

Motion filed by U.S. seeking leave to file amicus brief by March 17 signals support for PHH

The United States, at the Solicitor General’s request, has filed an “unopposed motion” with the D.C. Circuit for leave to file an amicus brief in PHH by March 17, 2017.  The motion states that both PHH and the CFPB have...more

Eleventh Circuit: (1) Mere Procedural Violation Insufficient for Article III Standing and (2) Certified Return Receipt Sufficient...

Since Spokeo v. Robins, 136 S. Ct. 1540 (2016), as revised (May 24, 2016), the consumer finance industry has continued to refine what it means to allege a concrete injury in fact and to meet Article III case and controversy...more

Burr Alert: “Alakazam”(or not): No Magic Language Necessary for Confirmation Waivers as Georgia Courts Continue to Allow...

In last March’s edition of this newsletter, we discussed the Supreme Court of Georgia’s decision in PNC Bank, National Association v. Smith, in which the Court held that compliance with O.C.G.A. § 44-14-161 “is a condition...more

PHH opposes intervention by plaintiffs in another case challenging CFPB’s constitutionality

PHH has filed a response opposing the motion of the plaintiffs in State National Bank of Big Spring, Texas, et al. v. Lew to intervene in the en banc rehearing.  The D.C. Circuit granted the CFPB’s petition for en banc...more

Fifth Circuit Rejects Arguments to Expand Scope of Liability under the Equal Credit Opportunity Act

In a published opinion issued February 16, 2017, the Fifth Circuit rejected arguments that would have expanded the scope of liability under the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 et seq., for lenders, or...more

D.C. Circuit Agrees to Hear Controversial PHH Case En Banc

On Feb. 16, 2017, the D.C. Circuit granted the CFPB’s petition to rehear en banc the court’s landmark October 2016 decision finding that the structure of the CFPB was unconstitutional. In its Feb. 16, 2017, order the D.C....more

Second District Court of Appeal Declines to Apply Statute of Limitations to Bar Subsequent Foreclosure Actions Premised on...

Following the Florida Supreme Court’s recent decision in Bartram v. U.S. Bank, N.A., 41 Fla. L. Weekly S493, 2016 WL 6538647 (Fla. Nov. 3, 2016), courts were left to interpret how Bartram would affect lenders’ reliance on...more

Mortgage Servicer Defeats Class Certification Over Collection Practices Allegedly Targeting Discharged Mortgage Debts

The Middle District of Florida recently denied a plaintiff’s motion for class certification concerning claims that a collection agency illegally and intentionally sent collection correspondence to mortgagees whose debts...more

New York Appellate Court Reaffirms Avenue For Lenders To Revive Dismissed Cases Following Expiration of Statute of Limitations

As we get further away from the financial crisis of 2008, the statute of limitations has become a much more asserted and examined defense in mortgage foreclosure actions. Last week, New York’s Appellate Division, Second...more

D.C. Circuit grants CFPB’s petition for rehearing en banc in PHH case

The D.C. Circuit has entered an order granting the CFPB’s petition for rehearing en banc in the PHH case.  Because the order was issued per curiam, it does not indicate which of the active judges voted to grant the petition...more

Plaintiffs in another case challenging CFPB’s constitutionality move to intervene in PHH case

The plaintiffs in State National Bank of Big Spring, Texas, et al. v. Lew have filed a “Motion To Intervene In Any En Banc Proceeding That May Be Granted” in the PHH case. The motion follows the D.C. federal district court’s...more

Recent California Court of Appeal Decision Invalidates Jury Trial Waiver Made Under New York Law

A recent California Court of Appeal decision may have a major impact on the enforceability of jury trial waivers in loan agreements and other documents governed by New York law. In Rincon EV Realty LLC v. CP III Rincon...more

Consumer Financial Services Newsletter - February 2017

Seventh Circuit Finds Bank's Response to RESPA Request "Almost Perfect" - Perron v. J.P. Morgan Chase Bank, N.A., Case No. 15-cv-2206 (7th Cir. 2017) - The United States Court of Appeals for the Seventh Circuit...more

Appellate Court Restores Lis Pendens Protections in Do-Ober Decision

The tides have turned in Ober v. Town of Lauderdale-By-The-Sea as the Fourth District Court of Appeal recently reversed its decision and revived the full impact of Florida’s lis pendens statute. By withdrawing and replacing...more

Nev. Supreme Court Holds HOA Foreclosure Statute Constitutional, Splits with Ninth Circuit

The Nevada Supreme Court has upheld the constitutionality of Nevada's pre-2015 statutory scheme for homeowners association (HOA) foreclosures. This decision contradicts the Ninth Circuit Court of Appeals' conclusion that the...more

I Have a Judgment, Now What? Priority of Judgments

Litigation can often be long and tiresome. Unfortunately, a successful verdict does not always lead to the desired outcome – the defendant paying up. Previous parts of this series addressed other aspects of collecting and...more

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