Friday, December 15, 2017

FYI: 7th Cir Upholds Class Settlement Despite Atty Fee Award in Excess of Award to Class

The U.S. Court of Appeals for the Seventh Circuit recently held, over extensive objections by intervenors, that the trial court did not abuse its discretion in approving a class action settlement, despite alleged problems with the class notice and the fact that the attorneys' fees award exceeded the total award to the class.

 

In so ruling, the Court rejected the intervenors' argument that the proponents of a class settlement must file briefs in support of settlement before the deadline to object.

 

A copy of the opinion is available at:  Link to Opinion  

 

In 2007, a consumer ("consumer") filed a putative class action lawsuit against a financial services corporation best known for its consumer credit cards ("card issuer"), challenging various aspects of a gift card product of the card issuer. 

 

Despite supposed representations that the card issuer's prepaid gift cards were "good all over the place," the consumer alleged that merchants were unable to process "split-tender" transactions where a cardholder attempted to purchase an item that cost more than the value remaining on his card, thereby leaving small amounts remaining on the cards.

 

In addition, the plaintiff alleged, cardholders were charged a $2 "monthly service fee" after twelve months of their issuance.  The plaintiff alleged that, although a cardholder could request a check to recover the remaining balance, the card issuer charged a $10 check-issuance fee. 

 

The putative class action complaint asserted claims against the card issuer for breach of contract, unjust enrichment, and statutory fraud, for allegedly designing its gift cards to make it purposefully difficult for cardholders to exhaust their balances.

 

The card issuer moved to compel arbitration pursuant to the provision within the cardholder agreement included in the gift cards.  After the trial court denied the card issuer's motion, the card issuer appealed to the Seventh Circuit.

 

On appeal, the parties engaged in settlement negotiations through the appellate court's mediation program, and requested a limited remand of the appeal for the purpose of presenting their settlement to the trial court for approval.  The Seventh Circuit granted the parties' request for limited remand in February 2009.

 

On remand, two intervenors ("intervenors") sought entry into the action, based, respectively, upon (i) similar complaints against the card issuer as lead plaintiff in the U.S. District Court for the Eastern District of New York and, (ii) claims that alleged purchase of a $100 gift card had no value when she attempted to use it.  The trial court granted the motion to intervene on July 15, 2009.

 

Two days earlier, the consumer, joined by a new co-plaintiff, individually and on behalf of all others similarly situated ("plaintiffs") filed an amended class action complaint and motion for preliminary settlement approval.  Before the motion was decided, it was amended by plaintiffs. 

 

The amended motion sought approval of a settlement for a $3M fund, which settlement class members could receive either (i) up to $20 in reimbursement for monthly fees actually paid due to refused split-tender transactions; (ii) up to $8 for monthly fees paid; (iii) up to $5 in reimbursement of any check-issuance fee paid; and (iv) up to $5 in reimbursement for monthly fees paid by attesting that such fees were paid.  Up to $200,000 of any such remaining funds would go to a charitable organization as cy pres, and up to $650,000 of any funds remaining thereafter would go to the card issuer as reimbursement for costs of notice and administration.

 

The proposed settlement also allowed settlement class members to take part in either: (i) the "balance refund program" for a refund of any balance of less than $25 on the gift cards without paying the check-issuance fee, or; (ii) the "purchase fee and shipping/handling fee waiver," to purchase a new $100 gift card without payment of purchase or shipping and handling fee (approximately $10 savings). 

 

On December 22, 2009, the trial court certified the class for settlement purposes to "all purchasers, recipients, holders and uses of any and all of the gift cards issued by [card issuer] from January 1, 2002 through the date of preliminary approval of the settlement…"  However, the trial court denied preliminary approval of the settlement over concerns of the adequacy of the proposed notice, both in form and substance.

 

On August 19, 2010, the trial court entered an order noting that, although the parties' proposed notice had been improved, it was too complicated and required a concise summary.  The order further declined to excused individual notice upon the card issuer's disclosure that it did have some personal-identifying information for gift card holders.

 

Thereafter, the plaintiffs filed a second amended motion for preliminary approval of the settlement, which increased the settlement fund to $6,753,269.50, leaving the class member benefits substantially the same, but removing the proposed reimbursement for the card issuer.  To satisfy the notice requirements, the second amended motion proposed notice by publication and direct mail to every class member for which the card issuer had information.  The trial court granted preliminary approval of the settlement on September 21, 2011 and appointed the named plaintiffs' counsel as lead class counsel, and the intervenors' counsel as additional class counsel.

 

However, response to the notice was "abysmal" - of the approximately 70 million gift cards sold, only 3,456 benefits had been requested, amounting to $41,510.35.  Citing a woefully imbalanced fee-to-claims ratio (class counsel requested $1.525M), on February 16, 2012, the trial court rejected the parties' motion for final approval of the settlement, and appointed a notice expert, and agreed to appoint the intervenors' recommended expert following their objection to the court's expert due to conflict.

 

After the parties and notice expert implemented a supplemental notice program, the parties again moved for approval of the settlement on May 28, 2014, citing over 32,500 claims and notice reaching approximately 70% of the class.  Nonetheless, the trial court denied final approval, objecting to the reimbursement to the card issuer for the costs of providing the first, unsuccessful notice, and citing the Seventh Circuit's decision in Redman v. RadioShack Corp.768 F.3d 622, 637-38 (7th Cir. 2014), to command another round of notice concerning motions for attorneys' fees.

 

Finally, after the third round of notice, the final approval of the settlement was granted on March 2, 2016, with the trial court finding that the settlement was fair, reasonable and adequate.  Based upon an affidavit of the card issuer, the trial court determined that the $1.8M benefit to the class was reasonable given the class's likelihood of not recovering the full $9.6M, while noting the small rate of opt-outs and objectors and that the settlement was seven years in the making.

 

Still, the trial court referred to final approval as the "least bad option."

 

As to fees, the trial court awarded: (i) $1M to plaintiffs' counsel ($235,000 less than requested), plus $40,000 in expenses; (ii) $250,000 to additional class counsel as requested, and; (iii) $700,000 to counsel for the Intervenors—an $800,000 reduction from the $1.5M requested.

 

The intervenors appealed approval of the settlement to the Seventh Circuit, arguing that the trial court erred by: (i) not requiring the filing of briefs in support of the settlement prior to the deadline to object to the settlement; (ii) determining that the card issuer's arbitration appeal posed a risk to the class's success; (iii) approving the settlement given the breadth of the release; and (iv) not awarding most, if not all, of the attorneys' fees to the Intervenors' counsel.

 

First, as to the filing of briefs, the intervenors argued that while there is no express requirement under federal rules requiring proponents of a class action settlement to file briefs in support of the settlement prior to expiration of the time to object, that such is compelled as a matter of due process, and a natural extension of the Seventh Circuit's opinion in Redman, and the Ninth Circuit's decision in In re Mercury Interactive Corp. Securities Litigation, 618 F. 3d 988 (9th Cir. 2010), upon which Redman relied. 

 

In Mercury Interactive Corp., the Ninth Circuit held that a trial court must "set the deadline for objections to counsel's fee request on a date after the motion and documents supporting it have been filed," based on "[t]he plain text of [Rule 23(h)]," which provides that requests for attorneys' fees must be made by motion and that class members "may object to the motion." Id at 993-994. In Redman, the Seventh Circuit adopted this reasoning to reverse approval of a class action settlement in part be-cause the trial court had provided for the filing of motions seeking attorneys' fees after the deadline for class members to object to the settlement. See 768 F.3d at 637–38.

 

Here, the Seventh Circuit rejected the intervenors' argument that Redman's reach should apply to the filing of briefs in support of settlement before the deadline to object, noting that Rule 23(h) deals exclusively with attorneys' fees and that the federal rules do not provide any such requirement for the filing of briefs in support of a settlement agreement.  On the contrary, Rule 23(e) only requires that class members be given an opportunity to object to the proposed settlement—the Rule has no provision that would require parties to file briefs in support of the settlement prior to the deadline to file objections.

 

Accordingly, the Appellate Court held that the trial court did not abuse its discretion in approving the class settlement by not requiring briefs supporting approval of the settlement to be filed prior to the deadline to object to it.

 

Next, the intervenors argued that the trial court improperly gave too much weight to the card issuer's potential arbitration defense in concluding that the $1.8M class recovery was reasonable in light of the risk that the class plaintiffs would receive nothing in arbitration in the event that the appellate court reversed the trial court's denial of the card issuer's motion to compel arbitration.

 

The Seventh Circuit noted that in denying the cardholder's motion to compel arbitration, it relied upon its opinions in ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), and Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), which held that contract terms contained on the inside of a product's packaging (and thus only discoverable after purchase) become part of the contract between the purchaser and the seller so long as the purchaser had "an opportunity to read the terms and to reject them by returning the product." Gateway at 1148.  Applying this precedent to the Cardholder Agreement at issue, the trial court concluded that there was not "a sufficient opportunity to reject the terms of the agreement by returning the card, so the terms contained inside the packaging were not terms of the contract between [the consumer] and [the card issuer]," while declining to address its enforceability.

 

While acknowledging that the trial court's reasoning in approving settlement "puts the enforceability cart before the contractual horse," as the order denying the card issuer's motion to compel arbitration remains pending, the Seventh Circuit held that the trial court did not abuse its discretion in concluding that the class settlement was fair, as the pending appeal concerning the arbitration remained a significant potential bar to the class's success.

 

The Seventh Circuit next examined the intervenors' claim that the release was overbroad, highlighting the claim of one of its intervenors who alleges that a $100 gift card she purchased was literally unusable because it had no value, despite paying the purchase fee.  As the class settlement only proposed compensation for the $2 monthly maintenance and check issuance fees, the intervenors argued that her case was one of many, constituting "hundreds of millions of dollars of unjustified 'up-front' fees." 

 

However, the Appellate Court concluded that trial court did not abuse its discretion because no party — not even the intervenor — provided any admissible evidence that such purported claims existed.  While acknowledging that "it is not an objector's duty to show that the settlement is inadequate," the Seventh Circuit noted that "the burden on the proponents to support the settlement should not extend to an affirmative to rebut every allegation an objector makes," in rejecting the intervenors' argument.  See Gautreaux v. Pierce, 690 F.2d 616, 630 (7th Cir. 1982). 

 

Lastly, the intervenors argued that the trial court erred in failing to award them most, if not all, of the attorneys' fees, despite their contention that they worked to further the interests of the class, while the named plaintiffs' counsel purportedly colluded with the card issuer.

 

The trial court had acknowledged that the intervenors' counsel was instrumental in getting the card issuer to divulge information on class members and in suggesting the notice expert ultimately appointed by the court.  However, the Seventh Circuit also noted that the trial court observed that the intervenors filed "a number of repetitive and meritless objections," and that it was unclear to what extent they could claim responsibility for the supplemental notice programs.

 

Having dealt with the parties and their counsel for nearly seven years, the Appellate Court concluded that the trial court was in the best position to determine which parties and attorneys contributed to the settlement in which proportions, and that there was no abuse of discretion in its award of attorneys' fees.

 

As the Seventh Circuit concluded that the trial court did not abuse its discretion as to any parts of its approval of the class settlement despite its "issues," the approval of the class settlement and attorneys' fees awards was affirmed.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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Tuesday, December 12, 2017

FYI: Fla App Ct (3rd DCA) Reverses Dismissal of Foreclosure on "Prior Servicer's Records" Issue

Following rulings from other appellate courts in other appellate districts, Florida's Third District Court of Appeal ("Third DCA") recently reversed a trial court's order involuntarily dismissing a mortgagee's foreclosure against a borrower holding that the mortgagee's witness from its current mortgage servicer laid a sufficient foundation at trial to admit business records from a prior mortgage servicer necessary to prove a default under Florida's business records exception to hearsay.

 

A copy of the opinion is available at:  Link to Opinion

 

In 2006, a mortgagee provided the borrower with an adjustable rate note and mortgage that contained a negative amortization provision. The Note gave the mortgagee the option to change the interest rate and to add any deficiency to the principal.

 

The borrower subsequently defaulted, and in 2011 the mortgagee filed a foreclosure complaint.  The borrower answered the complaint and raised affirmative defenses, but the borrower did not assert as an affirmative defense that the mortgagee had failed to provide her evidence of a change in interest rate or the payment amount.

 

The trial court conducted a bench trial.  The mortgagee presented a witness from its mortgage servicer at trial to prove its case.  The witness testified in detail about the servicer's loan "boarding process, verifications, the payment history, the notice of default and acceleration."  The trial court admitted the Note and demand letter into evidence.  The trial court also admitted the payment history into evidence by stipulation. 

 

At the conclusion of the trial the mortgagee moved for final judgment and the borrower moved for involuntary dismissal.  The trial court subsequently granted borrower's motion for involuntarily dismissal. 

 

Although the trial court had already admitted the mortgagee's documents into evidence during the trial, it concluded that the mortgagee's testimony regarding the prior servicer's records was hearsay.  Further, despite noting that the Note did not require the mortgagee to prove that borrower received a notice of payment or interest change before it could trigger a default, the trial court found that the mortgagee had failed to prove this. 

 

This appeal followed.


Initially, the Third DCA noted that Florida's business record exception to the hearsay rule.  As you may recall, a party may introduce evidence that courts would ordinarily exclude as inadmissible hearsay if:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business

activity; and (4) that it was a regular practice of that business to make such a record.

 

Section 90.803(6), Florida Statutes (2016); Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).

 

The Third DCA observed that a party may establish foundation to admit a business record through a records custodian or other qualified witness. The witness that authenticates the records does not have be the person that created the business records. See Deutsche Bank Trust Co. Ams. v. Frias, 178 So. 3d 505 (Fla. 4th DCA 2015).  Instead, the witness only has to be sufficiently acquainted with the activity to testify that the successor business relies on those records, and that the circumstances indicate the records are trustworthy."  Bank of New York v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015).

 

Moreover, in the mortgage servicing context after a loan service transferred, the foreclosing mortgagee does not have to present a witness "employed by the prior servicer or who participated in the boarding process."  Ocwen Loan Servicing, LLC v. Gundersen, 204 So. 3d 530 (Fla. 4th DCA 2016). This is because when "a business takes custody of another business's records and integrates them within its own records, the acquired records are treated as having been 'made' by the successor business, such that both records constitute the successor business's singular 'business record.'"  Calloway, 157 So. 3d 1064, 1071 (Fla. 4th DCA 2015).

 

Here, the Third DCA found that the witness demonstrated sufficient knowledge of the business record's history to testify about the loan boarding process, the servicing platform, and the process for creating the default notice and demand letter. 

 

Specifically, the witness testified that the mortgage servicer absorbed the prior servicer and that the servicer verified the accuracy of all the prior servicer's records before incorporating those records into its own records. The Appellate Court held that the trial court therefore should have admitted the testimony concerning the third party default letter and the loan payment history printout as an exception to the hearsay rule.

 

Thus, the Third DCA concluded that the witness authenticating the mortgagee's records provided sufficient testimony to meet the requirements to admit the records under the business record exception to hearsay. 

 

The Third DCA next addressed the trial court's conclusion that it properly declined to admit the testimony and demand letter into evidence because the mortgagee's witness was not sufficiently familiar with the practices and procedures of one of the servicer s third-party vendors. However, the Third DCA reject this rationale "because the business records exception does not contain such a requirement."  Cayea v. CitiMortgage, Inc., 138 So. 3d 1214, 1217 (Fla. 4th DCA 2014). 

 

Instead, the witness only had to show that he was sufficiently familiar with the creation of the demand letter to authenticate it. Calloway, 157 So. 3d 1064.  Here, the witness met this requirement because he testified about the loan boarding process "and properly laid the foundation for the admissibility of the loan payment history and the demand letter."  As such, the Appellate Court held, the trial court erred when it excluded the demand letter from evidence after the mortgagee had laid the proper foundation to meet the business record exception.

 

The Third DCA next held that the trial court also should have admitted the payoff printout as a business records exception to the hearsay rule. A party may use the business records exception to hearsay to admit printouts of data prepared for trial even if the party does not keep the printout in the ordinary course of business "so long as a qualified witness testifies as to the manner of preparation, reliability, and trustworthiness."  Cayea, 138 So. 3d at 1217.  Thus, the Appellate Court held, the mortgagee proved via the printout that borrower did not make the June 2008 payment and all subsequent payments, and the trial court erred when it ruled that the mortgagee did not prove a default.

 

Finally, the Third DCA also concluded that borrower waived any affirmative defense that the mortgagee had to prove that it provided notice of the interest rate and payment change to borrower because borrower never pled this affirmative defense.  Moreover, the Appellate Court noted, the Note contains no such requirement to notify the borrower of any change in interest rate or payment amount.

 

Thus, the Third DCA therefore reversed the involuntary dismissal and remanded to enter a final judgment of foreclosure in favor of the mortgagee.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia  |   Illinois   |   Indiana   |   Maryland   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC   |   Wisconsin

 

 

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Monday, December 11, 2017

FYI: 11th Cir Rejects Challenge to Debtors' Ability to Recover Attorney's Fees in Stay Violation Actions

The U.S. Court of Appeals for the Eleventh Circuit recently held, in a case of first impression, that "the Bankruptcy Code authorizes payment of attorney's fees and costs incurred by debtors in successfully pursuing an action for damages resulting from the violation of the automatic stay and in defending the damages award on appeal."

 

A copy of the opinion is available at:  Link to Opinion

 

Husband and wife filed for Chapter 7 bankruptcy in 2011 and received a discharge 5 months later. The husband passed-away and his daughter was substituted as personal representative of his estate.

 

While the bankruptcy was pending, an attorney representing the decedent's creditor filed suit in state court, despite the automatic stay, and refused to voluntarily dismiss the case despite demand. That case was eventually dismissed in November of 2011.

 

The debtors filed a motion in bankruptcy court under Bankruptcy Code section 362(K)(1) seeking damages for the violation of the automatic stay by the creditor's attorney. The bankruptcy court awarded the debtors just under $82,000 in damages, which included almost $42,000 in attorney's fees. The creditor's attorney appealed to the district court, which affirmed and awarded an additional approximately $34,500 in attorney's fees incurred during the appeal of the damages award.

 

The creditor's attorney then filed motions to recuse the bankruptcy judge in the district and bankruptcy courts. The bankruptcy court denied the recusal motion and the attorney appealed to the district court, which affirmed, but denied the debtors' motion for attorney's fees to defend the appeal of the recusal order.

 

Both sides appealed to the Eleventh Circuit, which affirmed in part and remanded the case to district court "to either award the [debtor's] attorneys' fees under the mandatory fees provision of Section 362(k), or explain why the recusal motion did not involve litigation over the stay violation and thus did not entitle the [debtors] to attorneys' fees."

 

On remand, the district court awarded an additional almost $15,000 in attorneys' fees to the debtors.

 

In the interim, the creditor's attorney filed a petition for writ of certiorari with the Supreme Court, seeking review of the Eleventh Circuit's order affirming the denial of her recusal motion. The Supreme Court denied the petition in June of 2016.

 

The debtors then moved in the Eleventh Circuit to recover their attorney's fees incurred in defending the attorney's appeal and her petition for writ of certiorari. The Eleventh Circuit transferred the motions to the district court to decide whether debtors were entitled to recover such fees and, if so, whether they were reasonable.

 

The district court found that the debtors were entitled to recover their appellate fees, and that the fees sought by the debtor were reasonable in amount, awarding almost $92,500 in appellate fees and costs. The creditor's attorney again appealed to the Eleventh Circuit.

 

On appeal, the Eleventh Circuit first addressed the appellant's argument that the debtors were not entitled to appellate fees under section 362(k(1) because "the statute provides mandatory fees for damages and attorneys' fees incurred in ending a stay violation, but not attorneys' fees incurred in pursuing a damages award nor fees incurred in defendant that award on appeal."

 

The Court explained that there was no dispute the creditor's attorney violated the automatic stay, and that section 362(k)(1) provides that when willful violations occur, the individual injured "shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages."

 

The Eleventh Circuit rejected the creditor's reliance on the Supreme Court's 2015 decision in Baker Botts L.L.P. v. Asarco LLC, which held that an attorney that rendered services to the estate could not recover fees incurred in litigating a fee application against an administrator of the bankruptcy estate. The Court reasoned that that case involved Bankruptcy Code section 330, "which required service rendered to the estate[,]' unlike section 362(k)(1), which "specifically and explicitly contemplates at least some departure from the American Rule by including 'costs and attorneys' fees' in the damages due to an individual injured by a willful violation of an automatic bankruptcy stay."

 

Adhering to the principle of statutory interpretation that it is the court's "duty to give effect, if possible, to every clause and word of a statute," the Eleventh Circuit "read the phrase 'including costs and attorneys' fees' as broadening the notion of actual damages beyond the immediate injury incurred in ending the violation of a stay."

 

Relying on its own precedent in the form of a 2015 case that addressed another fee-shifting provision of the Bankruptcy Code and held that a debtor wrongly forced into bankruptcy involuntarily could recover appellate fees, the Eleventh Circuit held here that "nothing in the text of Section 362(k)(1) limits the scope of attorneys' fees to solely ending the stay violation." Congress' "explicit, specific, and broad language permits the recovery of attorneys' fees incurred in stopping the stay violation, prosecuting a damages action, and defending those judgments on appeal."

 

Having concluded that "Section 362(k)(1)'s award of attorneys' fees apply to prosecuting damages actions," the Eleventh Circuit had "no trouble concluding that defending that judgment on appeal is also within the statute's  fee-shifting authorization… [because] [t]his Court has held many times that fee-shifting statutes—which Section 362(k) undoubtedly is—entitle parties not only to fees in the court of first instance, but also to appellate fees incurred in defending the judgment."

 

The Court then rejected creditor's technical argument that the debtors improperly filed an amended motion for appellate fees without first asking leave of court, finding they suffered no prejudice.

 

The Eleventh Circuit next rejected creditor's argument that the debtors did not prove damages by a preponderance of the evidence because they never filed a copy of their retainer agreement with their lawyer or "any affidavit stating that the fee statements attached to their motions were actual owed to their counsel.

 

The Court found that because each of the subject motions contained affidavits from the debtors' counsel attesting to the services rendered, the billing statements itemized the services and costs and the motions incorporated by reference earlier experts' affidavits attesting to the reasonableness of the hourly rates, the district court did not abuse its discretion.

 

Finally, the Eleventh Circuit rejected the creditor's argument that the amount of the fee award was unreasonable, concluding that "[b]ased on our review of the record, we cannot say that the district court's findings were clearly erroneous, nor did the court employ an incorrect legal standard or fail to follow proper procedures. … The district court therefore did not abuse its discretion."

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia   |   Illinois   |   Indiana   |   Maryland   |   Massachusetts   |   Michigan   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC   |   Wisconsin

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.


Our updates and webinar presentations are available on the internet, in searchable format, at:

 

Financial Services Law Updates

 

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Friday, December 8, 2017

FYI: 9th Cir Holds FDCPA Preempts State Judgment Execution Laws

The U.S. Court of Appeals for the Ninth Circuit recently held that the federal Fair Debt Collection Practices Act (FDCPA) preempted state judgment execution law insofar as it permitted debt collectors to execute on FDCPA claims.

 

In so ruling, the Court held that debt collectors cannot evade the restrictions of the by obtaining a collection judgment against the debtor, and then forcing the debtor's FDCPA claims to be auctioned, acquiring the claims, and dismissing them. 

 

A copy of this opinion is available at:  Link to Opinion

 

The debtor incurred a medical debt, and then failed to pay it as agreed.  A debt collector sought to collect on that debt.  The debt collector sent the debtor a letter, along with a summons and state court complaint.  The complaint stated that the debtor could "[d]ispute the validity of this debt" within 30 days, but that failing to do so would result in a presumption of validity.  However, separately, in small print, the summons indicated that in order to defend the lawsuit, the debtor must file a formal written response with the court within 20 days.

 

The debtor filed suit and alleged that the debt collector had violated the FDCPA by stating that the debtor could dispute the debt within 30 days of receipt, when the actual summons required the filing of an answer within 20 days.

 

The debt collector obtained a state court judgment against the debtor for the outstanding medical debt, plus costs, prejudgment interest, and attorneys' fees.  The debt collector then requested that the state court issue a writ of execution and direct the sheriff to collect all "claims for relief, causes of action, things in action, and choses in action in any lawsuit pending," including the debtor's rights in the FDCPA lawsuit. 

 

The state court issued the writ.  The sheriff sold the debtor's interests in the FDCPA lawsuit.  And, the debt collector acquired the debtor's interests in the FDCPA lawsuit as the successful bidder.

 

The debt collector then moved to dismiss the FDCPA lawsuit for lack of standing.  The trial court granted the debt collector's motion and dismissed the FDCPA lawsuit.  This appeal followed.

 

On appeal, the debt collector argued that because the FDCPA does not speak directly to the execution of claims, there can be no federal preemption. 

 

As you may recall, federal law pre-empts state law where it directly conflicts with the state law.  Such conflict occurs when the operation of state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," or when it" interferes with the methods by which the federal statute was designed to reach [its] goal."

 

The Ninth Circuit rejected the debt collector's argument and explained that conflict preemption exists where there is an actual conflict, even when Congress has not made an express statement of pre-emptive intent. 

 

The Ninth Circuit then noted that the FDCPA's purpose is "to protect vulnerable and unsophisticated debtors from abuse, harassment, and deceptive debt collection practices" and that section 1692n of the FDCPA does expressly preempt state laws "to the extent that those laws are inconsistent" with the FDCPA.

 

The Ninth Circuit found that the FDCPA preempted the state's claim execution law insofar as it permitted debt collectors to execute on FDCPA claims.  The Ninth Circuit reasoned that to allow otherwise would thwart enforcement of the FDCPA and undermine its purpose.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia   |   Illinois   |   Indiana   |   Maryland   |   Massachusetts   |   Michigan   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC   |   Wisconsin

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.


Our updates and webinar presentations are available on the internet, in searchable format, at:

 

Financial Services Law Updates

 

and

 

The Consumer Financial Services Blog

 

and

 

Webinars

 

and

 

California Finance Law Developments

 

 

 

Sunday, December 3, 2017

FYI: Fla App Ct (5th DCA) Reverses Foreclosure Due to Lack of Evidence of Effect of Merger of Original Plaintiff

The Florida District Court of Appeal, Fifth District recently reversed a final foreclosure judgment in favor of a mortgagee, holding that the mortgagee did not establish that the original foreclosure plaintiff acquired the note by virtue of a merger, and did not establish the relationship between the original foreclosure plaintiff and the originating lender.  Accordingly, the Court held, the mortgagee did not properly establishing standing as to the original foreclosure plaintiff, as required.

 

A copy of the opinion is available at:  Link to Opinion

 

In 2004, a bank ("Originator") extended a mortgage loan to borrower.  Servicing of the loan was transferred, and in 2009 the new servicer ("Filing Servicer") alleged that borrower defaulted on the loan and filed a foreclosure complaint against borrower. The complaint attached an unindorsed copy of the note.  Borrower answered the complaint, denied that the Filing Servicer owned the note, and alleged a lack of standing affirmative defense.

 

In 2012, the trial court granted the Filing Servicer's motion to substitute its successor by merger ("Second Servicer") as plaintiff.  In 2014, the trial court granted the Second Servicer's motion to substitute a new servicer ("Mortgagee") as plaintiff. 

 

The Mortgagee filed an amended complaint alleging the same 2009 default date, its status as holder of the note, and attaching a copy of the note that contained an undated blank indorsement from the Originating Bank.  The borrower again raised lack of standing as a defense to the amended complaint. 

 

At trial, the Mortgagee called a foreclosure mediation specialist employee as its witness.  The trial court admitted the original note with the same blank indorsement from the Originating Bank as the copy attached to the amended complaint into evidence.  

 

The Mortgagee's witness did not know when the Originating Bank indorsed the note, and the Mortgagee did not introduce any evidence demonstrating when the Originating Bank indorsed the note.  The Mortgagee's witness testified that the Filing Servicer change its name in April 2009.

 

Over borrower's objection that Mortgagee lacked standing, the trial court entered a final judgment of foreclosure in favor of the Mortgagee.  This appeal followed.

 

As you may recall, in Florida the party seeking to foreclose must demonstrate that it had standing to foreclose "at the time the lawsuit was filed."  McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012).  The Fifth DCA noted that "a person entitled to enforce the note and foreclose on a mortgage is the holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce" the note has standing to foreclose. Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 46 (Fla 5th DCA 2015) (citing ' 673.2011, Fla. Stat. (2013)).

 

The Fifth DCA found that the original foreclosure complaint did not demonstrate its holder status because it only attached a copy of an unindorsed note payable to the Originator. Indeed, the Mortgagee conceded that attaching the indorsed note to its Amended Complaint and introducing it into evidence at trial did not retroactively demonstrate standing to foreclose when the Filing Servicer filed suit.

 

Instead, the Mortgagee argued that a merger between the Originator and the Filing Servicer established the Filing Servicer's standing to foreclose when it filed the original complaint.  "[T]o prove standing to foreclose based upon a merger, the surviving entity must prove that it 'acquired all of [the absorbed entity's] assets, including [the] note and mortgage, by virtue of the merger.'" Vogel v. Wells Fargo Bank, N.A., 192 So. 3d 714, 716 (Fla. 4th DCA 2016).

 

However, the Mortgagee's witness did not offer testimony explaining "why the copy of the note attached to the complaint . . . did not reflect the [i]ndorsements" and did not know when the blank indorsement was placed on the note. The Mortgagee's witness testified about incorporating business records, but did not testify regarding the transfer of the note pursuant to the merger. 

 

Thus, the Fifth DCA concluded that the Mortgagee did not prove that the merger gave the Filing Servicer standing to foreclose when the complaint was filed.

 

The Fifth DCA also noted that the asserted merger did not establish the Filing Servicer's standing to foreclose because the merger involved an affiliate of the Originator and the Filing Servicer, but the copy of the note attached to the complaint at the time the foreclosure was filed listed the Originator as the payee.  The Servicer did not explain the relationship between the Originator and its affiliate that merged with the Filing Servicer.

 

Thus, the Fifth DCA rejected the Mortgagee's argument that the Filing Servicer acquired possession of the note when it merged with the affiliate of the Originator that may never have held the note.

 

The Servicer also argued that the affiliate of the Originator had standing to foreclose because it was the original mortgage servicer.  The Fifth DCA disagreed finding that "the servicer relationship alone does not demonstrate standing to foreclose." Thus, because none of the Mortgagee's predecessors "had standing to foreclose at the inception of the case, the trial court erred by finding that [Mortgagee] acquired standing to foreclose."

 

The Fifth DCA therefore reversed the final foreclosure judgment, and remanded for entry of an involuntary dismissal.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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Thursday, November 30, 2017

FYI: Debt Collection and Other Rulemaking on Hold Amid CFPB Rancor

The future of federal rules covering debt collection has been thrown into doubt amid the leadership change at the Consumer Financial Protection Bureau. In one of his first actions since taking the helm of the CFPB as acting director, Mick Mulvaney announced a halt on all Bureau rulemaking, reported Reuters.

 

It has been more than four years since the CFPB announced plans to propose the first-ever rules regulating debt collectors subject to the federal Fair Debt Collection Practices Act. Last year it issued an outline of what those rules might look like. The Bureau had indicated earlier this year that proposed rules would be forthcoming, leading to speculation of their unveiling in September or October. Mulvaney's announcement indicates that proposed rules are not forthcoming.

 

In addition to proposing rules for traditional debt collectors, the CFPB was also in the early stages of formulating rules to regulate debt collection activities by originating creditors subject to its jurisdiction, but the recently proposed halt will likely impact that process as well.

 

"The president has made it very clear he wants me here. … I want to be here. I don't want anything coming out of here that I don't know about," Reuters quoted Mulvaney as saying.

 

Speculation at this point is that the proposed debt collection rules will undergo a review from Mulvaney and his newly installed team prior to their release by the CFPB. In that case, it could be some time before the proposed rules are revealed, if ever.

 

In the short term, we should expect renewed efforts at the state and local levels for enhanced debt collection regulation, a trend that began soon after the election of Donald Trump and has only intensified since.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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