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Eleventh Circuit Holds That Voicemails Are "Communications" and Clarifies "Meaningful Disclosure" under the FDCPA

Action Item: The Eleventh Circuit held that a first voicemail from a debt collector constitutes a “communication” based on a plain reading of the Fair Debt Collection Practices Act (“FDCPA”). In addition, in a case of first...more

Ninth Circuit Holds That Consumer Alleging FCRA Claim against Spokeo Sufficiently Pled a Concrete Harm to Confer Article III...

Action Item: On remand from the United States Supreme Court, the United States Court of Appeals for the Ninth Circuit held that a consumer’s allegations that the operator of a website reported inaccurate information about him...more

Florida District Court Rejects Use of Statute of Limitations as a Basis for Asserting Consumer Protection Claims

Action Item: Florida District Court rejects use of statute of limitations as a basis for asserting a consumer protection claim and finds that SOL Issue should be raised—if at all—as an affirmative defense to an actual...more

Florida Supreme Court Finds That the Statute of Limitations Does Not Prevent a Subsequent Foreclosure Action Based on Payment...

Action Item: If a prior foreclosure action has been dismissed with prejudice, mortgagees may bring new actions to foreclose on mortgages based upon post-dismissal payment default, so long as the new action is brought within...more

Ninth Circuit Holds Non-Judicial Foreclosure of Deed of Trust Is Not Debt Collection under the FDCPA

Action Item: The United States Court of Appeals for the Ninth Circuit affirms that activities incident to the non-judicial foreclosure of a deed of trust under California state law is not “debt collection” within the scope of...more

Beyond the Constitutionality of the CFPB: D.C. Circuit Decision Limits Scope of Fines and Enforcement Actions

Action Item: Financial institutions currently subject to CFPB enforcement proceedings should be aware of the D.C. Circuit’s decision ruling that the CFPB cannot (i) circumvent applicable statutes of limitation in the context...more

Ninth Circuit Case of First Impression Holds That FDCPA Notice Requirement Applies to Subsequent Collectors of Same Debt

Action Item: The Ninth Circuit reversed the Arizona District Court’s summary judgment in favor of a defendant debt collector in an action under the Fair Debt Collection Practices Act. In a case of first impression, the Ninth...more

U.S. Supreme Court Declines to Hear National Bank Act Preemption Case

Action Item: The United States Supreme Court declined to review a Second Circuit ruling that non-national bank assignees of debt are not entitled to preemption of state usury laws under the National Bank Act. The Supreme...more

Florida’s Third District Court of Appeal Reverses Earlier Decision in Beauvais and Holds That Statute of Limitations Does Not Bar...

Action Item: Florida’s Third District Court of Appeal finds that Florida’s statute of limitations for foreclosure actions does not bar a second foreclosure action filed on a subsequent payment default occurring within the...more

CA Supreme Court Unanimously Holds that a Mortgage Loan Borrower Has Standing to Sue for Wrongful Foreclosure due to Allegedly...

Action Item: In a ruling last week, the California Supreme Court supported Glaski and issued a narrow holding that, post-foreclosure, borrowers have standing to assert wrongful foreclosure based on allegations that an...more

U.S. Supreme Court Rules That an Unaccepted Settlement Offer or Offer of Judgment Does Not Moot a Plaintiff’s Individual or Class...

Action Item: The U.S. Supreme Court clarifies the split among the circuits and holds that an unaccepted Federal Rule of Civil Procedure 68 offer and unaccepted settlement offer neither moots an individual or class claim. But...more

U.S. Supreme Court Rules That Federal Arbitration Act Pre-Empts CA Law Against Class Action Waivers

Action Item: The United States Supreme Court continues to find that federal law strongly favors arbitration clauses. The Supreme Court’s decision in DIRECTV should provide some reassurance to companies that arbitration...more

U.S. Third Circuit Court of Appeals Broadens Standing under the Telephone Consumer Protection Act

Action Item: Lenders and servicers should continue to evaluate whether their policies and procedures may result in claims being brought under the Telephone Consumer Protection Act (“TCPA”), including claims brought by parties...more

Eleventh Circuit Court of Appeals Clarifies the Meaning Of “Debt Collector” under the FDCPA

Action Item: In light of the Eleventh Circuit Court of Appeals decision in Davidson, the definition of “debt collector,” for purposes of the Fair Debt Collection Practices Act (the “FDCPA”), is strictly limited to the...more

Pennsylvania Federal Court Holds that Envelope with Visible Bar Code That Could Be Scanned To Reveal Consumer’s Account Number May...

Action Item: In light of this decision, debt collectors should avoid the use of account numbers and/or QR codes on envelopes or within the viewing area of clear plastic envelope windows. Revealing such information on...more

Third Circuit Clarifies FDCPA Restrictions on Third-Party Communications

Action Item: Lenders and servicers should continue to maintain policies and procedures that minimize third-party communications and ensure maintenance of sufficient records documenting the frequency and purpose of those...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

6/29/2015

NJ Borrowers under HAMP May Pursue State Law Claims

It is well-established that the federal Home Affordable Modification Program (HAMP) does not offer borrowers a private right of action to allege a lender or servicer violated HAMP. However, the New Jersey Appellate Division...more

Borrowers Don’t Have Private Right of Action Under HAMP but May Pursue New Jersey State Law Claims

Action Item: To avoid possible state law claims related to denial of loan modifications, trial modification offers should clearly define the requirements a borrower must fulfill to receive a loan modification, and lenders and...more

Supreme Court Rules Written Notice Is Sufficient to Rescind under TILA

Action Item: In light of the United States Supreme Court’s decision in Jesinoski, lenders should be aware that written notice provided by the borrower, within three years of the loan consummation, is sufficient to exercise...more

New York Adopts More Stringent Debt Collection Regulations

Action Item: In advance of the 2015 effective dates, debt collectors that operate in New York should review their current policies and take necessary steps to comply with new state regulations that provide consumer...more

Ninth Circuit Holds that Putative TCPA Class Action Is Not Subject to Arbitration Clause in Shrinkwrap Contract

The Ninth Circuit recently held that a putative class action asserting violations of the federal Telephone Consumer Protection Act (“TCPA”) was not subject to arbitration because the representative plaintiff was unaware of...more

New Jersey Bankruptcy Court Holds That Mortgage Was No Longer Enforceable and Borrower Was Entitled to a “Free House”

Action Item: In light of this decision, lenders should ensure that foreclosures in New Jersey are filed within six years of the date of default. Failure to file a foreclosure within six years may cause the action to be barred...more

Third Circuit Holds that Envelope Revealing Consumer’s Account Number Violates the FDCPA

The Third Circuit Court of Appeals recently held that an envelope revealing a consumer’s account number through a clear plastic window constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”). In doing so,...more

“Totality of the Circumstances” Standard Used to Sanction Mortgagee for Lack of “Good Faith” Negotiation in Foreclosure Matter

New York’s Appellate Division, Second Department, recently ruled that a mortgagee’s conduct in evaluating a borrower’s loan modification application should be judged using the “totality of the circumstances” standard to...more

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