Monday, August 8, 2022

FYI: Massachusetts SJC Limits MPHLPA and 93A Counterclaims in Eviction Proceedings

In an appeal attracting amicus briefs from the AARP, the National Consumer Law Center, the Massachusetts Attorney General, and others, the Massachusetts Supreme Judicial Court (SJC), the state's highest court, recently reversed in part and affirmed in part a trial court's grant of summary judgment in favor of a mortgagee on counterclaims brought by the borrowers in summary process eviction proceedings following a non-judicial foreclosure.

 

In so ruling, the SJC held that, in summary process eviction proceedings following a nonjudicial foreclosure:

 

-  A borrower may bring a counterclaim under § 15 (b)(2) of the Massachusetts Predatory Home Loan Practices Act (MPHLPA), G. L. c. 183C, but the counterclaim must be "limited to the extent of amounts required to reduce or extinguish the borrower's liability under the high-cost home mortgage loan plus costs and reasonable attorney's fees";

 

and

 

-  A borrower may not pursue an otherwise time-barred claim under G. L. c. 93A (UDAP) by way of a counterclaim or defense in recoupment, when the mortgagee does not seek monetary damages.

 

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

 

The borrowers obtained first- and second-lien mortgage loans to purchase their home in 2005.  Both loans had a maturity date of November 1, 2035.  The borrowers stopped making payments in 2008. 

 

The mortgagee sent right to cure and loan modification solicitation letters in 2016, and initiated the non-judicial foreclosure process in 2017.  The borrowers did not respond or apply for a loan modification.  In September of 2017, the mortgagee served a 72-hour notice to quit. The borrower did not vacate the property. The mortgagee filed the present summary process eviction action in October 2017.

 

The borrowers asserted various counterclaims and defenses in the summary process eviction action, including that the mortgagee violated the MPHLPA, "and that they were entitled to damages and injunctive relief under G. L. c. 93A." 

 

The parties filed cross-motions for summary judgment.  The trial court granted the mortgagee's motion.  The borrower's appealed, and the intermediate appellate court again ruled in favor of the mortgagee.  The SJC granted the borrower's application for further appellate review.

 

The SJC first noted that the MPHLPA -- the "high cost home mortgage loan" statute in Massachusetts -- allows claims both against lenders and against assignees.  The borrowers asserted one of the provisions relating to assignee liability, Section 15(b)(2).

 

Under § 15(b)(2) of the MPHLPA, a borrower may, "at any time during the term of a high-cost home mortgage loan, employ any defense, claim, [or] counterclaim,[17] including a claim for a violation of [the MPHLPA]" against the assignee that the borrower could have asserted against the original lender in any one of three circumstances: (1) "after an action to collect on the home loan or foreclose on the collateral securing the home loan has been initiated," (2) after "the debt arising from the home loan has been accelerated or the home loan has become [sixty] days in default," or (3) "in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan."  The borrowers asserted their claims under the third scenario, as counterclaims in the assignee's summary process eviction proceedings. 

 

Claims under Section 15(b)(2) are not subject to the MPHLPA's 5-year statute of limitations, but instead "must be brought 'during the term of [the] high-cost mortgage loan.'"  The assignee argued that the borrower's MPHLPA counterclaim was "untimely because the foreclosure sale concluded the term of the home mortgage loan and thus the [borrowers] did not bring the counterclaim 'during the term of [the] high-cost home mortgage loan'."

 

The SJC agreed that, "when a property is sold at a foreclosure sale, the mortgage is extinguished."  See Bevilacqua v. Rodriguez, 460 Mass. 762, 775 (2011).  The Court also agreed that, "following foreclosure there is no longer a 'mortgage loan,' as the mortgage ceases to exist," and therefore that the "'term of a high-cost home mortgage loan' has ended."

 

However, SJC also pointed out that "§ 15(b)(2) refers to the 'term of a high-cost home mortgage loan'" and not merely "the term of the mortgage itself".  Although the mortgage lien is extinguished upon foreclosure, the borrower remains liable for any deficiency.  "Any remaining deficiency may be collected through a deficiency action pursuant to the requirements of G. L. c. 244, § 17B." In addition, § 15(b)(2) allows claims and defenses "in any action to . . . obtain possession of the home that secures the loan", and "the phrase seems to include post-foreclosure summary process actions."

 

Unable to resolve the issue with reference to the statutory text alone, the SJC looked to the legislative history of the MPHLPA.  The Court held that "[b]ased on this history and underlying legislative intent to enact a broadly remedial statute, ... the 'term of the high-cost mortgage loan' refers to the period from the origination date to the date when the underlying indebtedness is repaid, or to the original maturity date, whichever is earlier," in order "that borrowers may avail themselves of the MPHLPA's expansive protections in a post-foreclosure 'action to . . . preserve or obtain possession of the home that secures the loan" under Section 15(b)(2).

 

Accordingly, the SJC held that the borrowers' MPHLPA counterclaim was timely.  However, the Court also noted that "the § 15(b)(2) counterclaim is limited to monetary damages capped at the 'amounts required to reduce or extinguish the borrower's liability under the high-cost home mortgage loan' plus costs and reasonable attorney's fees."

 

As to the borrowers' UDAP claim under G. L. c. 93A, the SJC first noted that "[o]riginating a loan that the lender should recognize at the outset the borrower is not likely to be able to repay, is an 'unfair' practice prohibited by G. L. c. 93A."  UDAP claims under G. L. c. 93A may be brought "by way of original complaint, counterclaim, cross-claim or third-party action, for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper."  Such claims have a 4-year statute of limitations.  See G. L. c. 260, § 5A.

 

The assignee argued that the borrowers' UDAP claim under G. L. c. 93A was untimely because it was not brought within 4 years of the time it accrued. The SJC noted that "an affirmative claim under G. L. c. 93A would be barred under [the 4-year] statute of limitations, the four-year limitations period does not apply to preclude a party from raising a defensive counterclaim alleging a violation of G. L. c. 93A".  See G. L. c. 260, § 36.

 

However, the SJC also noted that "[t]o fall within G. L. c. 260, § 36, the counterclaim must be limited 'to the extent of the plaintiff's claim'", as a claim in recoupment.  "A successful recoupment claim by a defendant may reduce or extinguish the plaintiff's claim, but it could not result in an affirmative recovery for the defendant."

 

Here, the SJC held that "[t]he present counterclaim . . . bears no resemblance to a recoupment", because the assignee's summary process eviction action only sought possession of the property, and did not also seek "any outstanding liability under the loan". 

 

Therefore, the SJC held that the borrowers could not assert their otherwise untimely UDAP counterclaim under G. L. c. 93A as a claim in recoupment, as a defense to the assignee's summary process eviction action.

 

Accordingly, the SJC reversed the trial court's grant of summary judgment in favor of the assignee "insofar as it concerns the ]borrowers'] PHLPA counterclaim, "reversed in part and affirmed in part insofar as it concerns the c. 93A claim," and remanded for further proceedings consistent with its opinion.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th 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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Sunday, July 31, 2022

FYI: 11th Cir Vacates $35 Million TCPA Class Settlement on Article III Standing Grounds

In an appeal of a $35 million federal Telephone Consumer Protection Act ("TCPA") class action settlement initially involving a dispute over coupon settlements, the U.S. Court of Appeals for the Eleventh Circuit vacated and remanded the trial court's approval of the class action settlement due to Article III standing problems with the settlement class.

 

In so ruling, the Eleventh Circuit held that:

 

(1)  Under TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), "[e]very class member must have Article III standing in order to recover individual damages"; and

 

(2)  Under Frank v. Gaos, 139 S. Ct. 1041 (2019), Article III's standing requirements "extend[] to court approval of proposed class action settlements"; and

 

(3)  In a putative nationwide class action, the TransUnion rule must still be applied even if some of the class members do not have standing under Eleventh Circuit case law but might have standing in another circuit; and

 

(3)  In the Eleventh Circuit, under Salcedo v. Hanna, 936 F.3d 1163, 1172 (11th Cir. 2019), a single unwanted text message does not give rise to Article III standing.  However, the Eleventh Circuit has not yet decided whether a single phone call to a cellphone can give rise to Article III standing.

 

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

 

The named plaintiff filed a putative class action alleging that the defendant violated the TCPA when it allegedly called and texted the putative class members "solely to market its services and products through a prohibited automatic telephone dialing system."  See 47 U.S.C. § 227(a)(1), (b)(1)(A).

 

The action was consolidated with two other similar actions against the same defendant pending in other trial courts in other circuits.  In addition, because Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1273 (11th Cir. 2019), requires that the named plaintiffs must have standing, and under Salcedo v. Hanna, 936 F.3d 1163, 1172 (11th Cir. 2019), a single unwanted text message does not give rise to Article III standing, one of the named plaintiffs in one of the consolidated actions who had only received a single text message was removed.

 

After considering the briefing of the parties, the trial court held that "even though some of the included class members would not have a viable claim in the Eleventh Circuit, they do have a viable claim in their respective Circuit [because of a circuit split]. Thus, [the defendant] is entitled to settle those claims in this class action although this Court would find them meritless had they been brought individually in the Eleventh Circuit."  In other words, the trial court "allowed text-message only recipients to remain in the class, even though they lacked Article III standing under" Eleventh Circuit case law. 

 

The trial court approved certification of the class for purposes of settlement in accordance with the proposed settlement agreement after conducting a Rule 23(a) analysis for numerosity, commonality, typicality, and adequacy, and a  Fed. R. Civ. P. 23(b)(3) analysis for predominance, although the Eleventh Circuit noted that it did not also conduct an analysis of the mandatory Rule 23(e)(2) factors, which is mandatory when "a class [is] proposed to be certified for purposes of settlement."

 

A settlement class member objected to the class settlement, and then appealed challenging various aspects of the class settlement not relating to Article III standing.  Even though the issue was not briefed by the parties, the Eleventh Circuit sua sponte held that "the class definition does not meet Article III standing requirements," and vacated the final approval of the settlement and remanded "to give the parties an opportunity to revise the class definition."

 

On appeal, the Eleventh Circuit first examined recent relevant rulings from the Supreme Court of the United States. 

 

-  Under Frank v. Gaos, 139 S. Ct. 1041 (2019), Article III's standing requirements "extend[] to court approval of proposed class action settlements."  The Eleventh Circuit stated that "from Gaos, we take the following: even at the settlement stage of a class action, we must assure ourselves that we have Article III standing at every stage of the litigation."

 

-  Under TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), "1) To satisfy the concrete injury requirement for standing, a plaintiff alleging a statutory violation must demonstrate that history and the judgment of Congress support a conclusion that there is Article III standing; 2) 'Every class member must have Article III standing in order to recover individual damages.'"

 

In addition, in the Eleventh Circuit, "a plaintiff has not suffered a concrete injury for Article III standing purposes when she has received a single unwanted text message."  Salcedo v. Hanna, 936 F.3d 1163, 1172 (11th Cir. 2019).  However, at least in the Ninth Circuit, "a single unwanted text message is sufficient to establish a concrete injury for Article III standing purposes."  Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017).

 

Combining these various rulings together, the Eleventh Circuit held that "when a class seeks certification for the sole purpose of a damages settlement under Rule 23(e), the class definition must be limited to those individuals who have Article III standing."  

 

The Eleventh Circuit then took issue with the trial court's conclusion "that unnamed plaintiffs with no standing in our circuit may be entertained as part of the nationwide class because they have might standing in another circuit," ruling that "[t]he case the trial court cites for this proposition, In re Deepwater Horizon, [739  F.3d  790,  807  (5th  Cir.  2014),] says nothing of the sort."  Contrary to the trial court's ruling, the Eleventh Circuit held that "[n]owhere does that case suggest that we check Article III standing at the door when dealing with a class action."

 

Turning next to the settlement class definition, the Court noted that "the universe of plaintiffs under this definition includes any individual who received a text message or phone call on their cellphone from [the defendant] in the specified period.  As discussed above, under Salcedo, we have said that a single unwanted text message is not sufficient to meet the concrete injury requirement for standing.  So, the class definition cannot stand to the extent that it allows standing for individuals who received a single text message from [the defendant].  Otherwise, individuals without standing would be receiving what is effectively damages in violation of TransUnion." 

 

According to the Eleventh Circuit, "[t]he more difficult question is whether individuals who have received a single cellphone call also have standing."

 

The Court previously held that "cell phone calls may involve less of an intrusion than calls to a home phone."  See Salcedo, 936 F.3d at 1170.  Similarly, in Glasser v. Hilton Grand Vacations Company, LLC, 948 F.3d 1301, 1306 (11th Cir. 2020), the Court held that "receipt of more than one unwanted telemarketing call" was sufficient to meet the "concrete injury" requirement for Article III standing. However, the Eleventh Circuit has not yet decided "whether a single phone call to a cellphone was a concrete injury for Article III standing purposes."

 

"We have a problem here," the Eleventh Circuit stated.  Explaining the problem, the Court stated:

 

"'Unwanted' in Cordoba had a specific meaning — individuals who were called after asking not to be called.  'Unwanted' in the context of the statute at issue in our case and in Glasser refers to the fact that individuals, though never asking not to be called, were called by allegedly prohibited means under the TCPA — automatic telephone dialing systems.  So, to us, the standing analysis in Cordoba and the standing analysis in Glasser and our case may not necessarily be the same.  In Cordoba, people asked not to be called — period.  In Glasser and in our case, the individuals are not complaining about the fact they were called.  They are complaining about the fact that the automatic telephone dialing system did the calling.  In other words, the injury is not the call but rather the dialing system used, and it is not clear that [the defendant]'s compliance with the statute would have prevented the plaintiffs from being called." 

 

"The difference between Cordoba and Glasser and our case may present the need to reexamine Glasser in the future because it may affect both the injury-in-fact requirement and the causation analysis.  At the very least, Cordoba and Glasser were decided pre-TransUnion, and under TransUnion plaintiffs have the burden of establishing Article III standing for statutory violations by alleging facts that would allow us to find a common-law analogue to the injury in question.  See TransUnion, 141 S. Ct. at 2204.  Glasser conducted no historical analysis and is suspect on that ground alone."

   

Therefore, the Eleventh Circuit ruled that "[b]ecause we have not received briefing on whether a single cellphone call is sufficient to meet the concrete injury requirement for Article III standing and because TransUnion has clarified that courts must look to history to find a common-law analogue for statutory harms, we think the best course is to vacate the class certification and settlement and remand in order to give the parties an opportunity to redefine the class with the benefit of TransUnion and its common-law analogue analysis."

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th 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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Friday, July 22, 2022

FYI: Ill App Ct (1st Dist) Rejects Challenge to Foreclosure Based on Supposedly Unapplied Payments

The Appellate Court of Illinois, First District, recently affirmed a trial court's order confirming a judicial sale of real property collateral following a mortgage foreclosure, as well as the trial court's denial of the borrower's motion to reconsider that order.

 

In so ruling, the First District held that the trial court did not abuse its discretion in rejecting the borrower's objection to the sale based on sparse evidence of unapplied payments supposedly made toward the balance due during the borrower's bankruptcy.

 

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

 

The borrower and his wife objected to the foreclosure sale of certain real property by the plaintiff mortgagee, arguing that they had initiated Chapter 13 bankruptcy proceedings after the entry of the judgment of foreclosure and sale, and in that time made payments of approximately $100,000 toward the mortgage arrearage that the trial court should have credited to them in the order approving the judicial sale.

 

In support of the argument that he made payments totaling over $100,000 towards the mortgage arrearage after filing the bankruptcy petition, the borrower attached a mortgage payment statement dated March 18, 2019 from the loan servicer, which stated that the borrower had a "Total Post-Petition Unpaid Payment Amount" of $114,413.62. This was the only evidence that the borrower produced to attempt to prove that he had made the alleged payments that he argued should have been credited to him in the court's order of foreclosure and sale.

 

The trial court entered an order confirming the sale, which made no mention of the borrower's alleged payments. The borrower then filed a motion to reconsider the order, making the same argument that certain payments made during bankruptcy were never accounted for, and he was entitled to a credit for those payments in the report of sale and distribution. He also argued that the total amount of his alleged payments should have gone towards the unpaid principal balance, because the interest could not be charged during bankruptcy.

 

The trial court denied the motion to reconsider and the borrower timely appealed.

 

The First District began its analysis by noting that, under the Illinois Mortgage Foreclosure Law ("IMFL"), a trial court has broad discretion to approve or reject a judicial sale; however, the court's discretion to refuse confirmation of the sale is limited to four specific situations enumerated in the IMFL. Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill.App.3d 1, 4 (1st Dist. 2010).

 

As provided the IMFL, "the court shall confirm the sale unless the court finds that: (i) proper notice of the sale was not given; (ii) the terms of the sale were unconscionable; (iii) the sale was conducted fraudulently; or (iv) justice was otherwise not done." Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 18 (quoting 735 ILCS 5/15–1508(b)). The movant bears the burden of proving any of these four circumstances. Beal Bank v. Barrie, 2015 IL App (1st) 133898, ¶ 28.

 

In the present matter, the borrower argued that the basis for reversing the trial court's approval of the judicial sale was that "justice was not otherwise done," pursuant to Section 1508(b)(iv), because the trial court's failure to apply the payments he made during his bankruptcy case prevented him from protecting his interest in the property.

 

The First District described the fourth basis for rejecting a judicial sale as one that defendants often invoke as a last-ditch effort to save themselves from a lost foreclosure case.  However, a trial court's discretion to reject a sale pursuant to Section 1508(b)(iv) is "extraordinarily narrow." NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶ 16.

 

The Appellate Court also explained that, although there is no bright-line definition of what constitutes a sufficient injustice under Section 1508(b)(iv), the limited handful of cases in which courts have vacated a foreclosure sale pursuant to the justice clause predominantly involved an unconscionable sale price, errors relating to the actual sale process, or lender conduct that prevented the borrower from protecting their interest in the property and affected their right to redeem the property. Id. at ¶ 18; Fleet Mortgage Corp. v. Deale, 287 Ill.App.3d 385, 390 (1st Dist. 1997); Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 22.

 

Here, the First District observed that the borrower could not claim that the conduct of the mortgagee (neither the current plaintiff nor the original plaintiff that filed the foreclosure case) prevented him and his wife from protecting their interest in the property. Neither could the borrower claim that he sought to redeem the property in his objections to the judicial sale. Furthermore, although he took issue with the trial court's confirmation of a deficiency of $208,112.76, he did not allege that the sale price was unconscionable, or that there was any error made in conducting the sale itself, limiting his objection to the trial court's consideration in ruling on the motion to confirm the sale.

 

The borrower instead cited the decision in Deutsche Bank National Trust Co. v. Cortez as a factually analogous case in which the First District found that the trial court should have held a hearing on whether the borrower had made payments to the lender towards his mortgage that were not accounted for, and would have resulted in a surplus at sale. 2020 IL App (1st) 192234, ¶ 25.

 

However, the First District held that there were notable factual distinctions between Cortez and the present case. The defendant borrower in Cortez definitively showed the lower court that a trial modification plan existed, that he successfully completed the trial period, that the plaintiff mortgagee accepted the full payment he made pursuant to the trial plan, and that a final loan modification agreement existed. Additionally, the defendant borrower in Cortez was able to show that the trial court's failure to account for his loan modification payments prejudiced him because the sale resulted in a surplus even without applying any of the payments he claimed to have made.

 

In the present matter, the borrower argued that the sale would have resulted in a surplus of approximately $74,000. Instead, the sale as approved by the trial court resulted in a deficiency of $208,112.76. The First District observed that it was unclear how the borrower arrived at the surplus amount because the borrower failed to support his objections before the trial court. Not only was there an undisputed deficiency from the sale in this matter, but the borrower also did not address the lender's argument that he did not — and could not — show that he was prevented from protecting his interest in the property given that his personal liability under the defaulted mortgage note was discharged under Chapter 7 bankruptcy.

 

Additionally, the First District noted that, for the first time in his motion for reconsideration, the borrower presented the trial court with his only other evidence of having made payments towards the loan during bankruptcy proceedings — the Chapter 13 Standing Trustee's Final Report and Account ("Chapter 13 Report") entered on March 6, 2019. The Chapter 13 Report included a line under the category of "Summary of Disbursements to Creditors; Secured Payments" listing that the borrower and his wife paid $102,172.13 towards the principal of "Mortgage Ongoing" and paid nothing towards "Mortgage Arrearage." This was at odds with his argument on appeal, where he repeatedly claimed to have made over $100,000.00 in payments toward the mortgage arrearage through his bankruptcy case.

 

Furthermore, the First District questioned why the borrower failed to explain why he did not present the Chapter 13 Report in his original objections to the sale. The borrower was also silent as to why this document contradicted the mortgage payment statement document submitted in connection with the original objection proceedings, which stated on its face that there were Post-Petition Unpaid Payments in the amount of $114,413.62.

 

"The purpose of a motion to reconsider is to bring to the court's attention newly discovered evidence that was not available at the time of the original hearing, changes in existing law, or errors in the court's application of the law." Evanston Ins. Co. v. Riseborough, 2014 IL 114271, ¶ 36. A party seeking reconsideration based on new evidence must show that "the newly discovered evidence existed before the initial hearing but had not yet been discovered or was otherwise unobtainable." Simmons v. Reichardt, 406 Ill. App. 3d 317, 324 (4th Dist. 2010). Issues raised before the trial court for the first time on a motion to reconsider are forfeited. Tafoya-Cruz v. Temperance Beer Company, LLC, 2020 IL App (1st) 190606, ¶ 83.

 

Here, the First District determined that the March 6, 2019 Chapter 13 Report existed at the time that the borrower originally objected to the judicial sale, and he failed to bring it to the trial court's attention. His argument that it was a document in the public record and the court should have taken judicial notice of the records of other courts failed to cure his previous error.

 

Thus, the First District concluded that the motion to reconsider was based on new evidence and new arguments not made in the original hearing, was properly denied, and did not constitute an abuse of discretion.

 

Accordingly, the First District affirmed the trial court's ruling confirming the judicial sale and denying the Motion to Reconsider.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th 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   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC

 

 

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Wednesday, July 20, 2022

FYI: 11th Cir Upholds Denial of Attorney's Fees From Common Fund in Class Settlement

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court's denial of a plaintiff counsel's motion for attorneys' fees, finding the firm's prioritization of their interests over those of the class cut off any entitlement to attorney's fees.

 

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

 

The appeal arose from a law suit brought by a doctor ("Doctor") who was represented by a law firm ("Firm") against a company ("Company") after Company sent Doctor an unsolicited fax. Doctor filed suit on behalf of a putative class of other people or entities who allegedly received "unsolicited advertisements" by fax in violation of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b).

 

The parties reached a settlement agreement ("Settlement I") which provided that Company would create a common fund of $21 million to pay verified claims against it and the claimants would receive $492.32 per fax number they had received unsolicited advertisements from company.

 

Additionally, Firm would receive one third of the common fund as a fee award subject to court approval. Finally, the Settlement allowed Company to terminate the agreement for any reason.

Because Eleventh Circuit precedent generally limits the award of attorneys' fees to 25% of the common fund, Doctor and Company agreed to voluntarily dismiss the case ("Case I") and refile in state court in Illinois ("Case II").

 

In Case II, the same Settlement was preliminarily approved and notice of settlement was sent to the class members. One claimant ("Pharmaceutical Company") filed an objection to the settlement. In response to the objection, Company terminated the settlement agreement.

 

Pursuant to the terms of the settlement agreement, Case II was dismissed and refiled in federal court in Florida ("Case III").  Meanwhile, Pharmaceutical Company filed a separate class action in Illinois which was eventually consolidated with Case III.

 

Company and Pharmaceutical Company subsequently filed a new proposed settlement agreement in Case III ("Settlement II").

Settlement II provided for a $4.5 million common fund which was non-reversionary and entitled each claimant to receive a pro rata share of the common fund. The trial court approved Settlement II and appointed Pharmaceutical Company's attorney as class counsel, awarding them the full amount of attorneys' fees. The court further denied Doctor and Firm's motion for a portion of the attorneys' fees finding that Firm did not confer a substantial or independent benefit to the class which would justify a portion of the fees.

 

Doctor and Firm appealed.

 

The Court began its review by discussing when attorneys may receive a portion of the common funds.  Although plaintiff's attorneys are able to receive payment from the common fund, only attorneys who "recover [] a common fund" for the plaintiffs are entitled to receive a portion of the funds as a reasonable attorneys' fee. In re Home Depot Inc., Customer Data Sec. Breach Litig., 931 F.3d 1065, 1079 (11th Cir. 2019).  The court appointed class counsel is typically the one who recovers the common funds for the class.  However, sometimes other attorneys may aid in recovering the common fund and thus be entitled to attorneys' fees from the fund.

 

Thus, Federal Rule of Civil Procedure 23(h) provides a format for awards to other counsel whose "work produced a beneficial result for the class." The Eleventh Circuit held that under Rule 23(h), if a substantial and independent benefit to the class that aids in the recovery or improvement of the common fund is conferred by a non-class counsel attorney, then he is generally entitled to a portion of the common fund recovered in a class action as attorney's fees. In re Cendant Corp., Sec. Litig., 404 F.3d 173, 197 (3d Cir. 2005).

 

A substantial benefit "creates, discovers, increases, or preserves' the class's ultimate recovery" of the common fund. Id. at 197. An independent benefit is one that class counsel did not provide and that could not have been easily duplicated by class counsel. Id.

 

Firm argued that it provided substantial and independent benefits to the common fund by "identif[ing], fil[ing], and litigat[ing]" the class action and because 1,633 Settlement II claimants filed their claims under Settlement I.

 

The Eleventh Circuit disagreed in part.

 

First, the Appellate Court found the fact that Firm devoted substantial time and effort to litigating the action did not entitle Firm to attorneys' fees.

 

Instead, the Eleventh Circuit ruled that the effort Firm spent in obtaining a failed settlement agreement was not compensable unless it directly aided in the recovery or improvement of the common fund that was actually obtained. The Court thus held that Firm was incorrect in arguing that it was entitled to attorneys' fees merely for the time and effort expended litigation the class action or pursuing Settlement I. See Cendant, 404 F.3d at 197.  However, the Eleventh Circuit noted that, although Firm's work pursuing Settlement I did not substantially benefiting the class or aid in the recovery or improvement of Settlement II, the efforts Firm spent in identifying the 1,633 class members who ultimately recovered under Settlement II were an exception. 

 

Nevertheless, the Appellate Court also ruled that this did not confer an independent benefit, as class counsel reviewed the same documents as Firm and found the same class members.  In addition, even though class counsel did not require these members to submit new claims under Settlement II, they easily could have.

 

Firm further argued it provided a substantial benefit in filing the class action almost two years prior to class counsel's filing. The Eleventh Circuit agreed that filing a class action before other attorneys can provide a substantial benefit be preventing class members from falling outside the statute of limitations.

 

However, the Appellate Court found that Firm squandered any benefit it may have conferred by filing early by dismissing the case twice and refiling it, as the relevant filing date for Firm was the date it refiled in federal court in Case III.

 

Finally, the Eleventh Circuit found Firm did provide a substantial and independent benefit in one way: by identifying Company's TCPA violations and the potential for a class action. The Appellate Court noted that "attorneys who alone discover grounds for a suit, based on their own investigation rather than on public reports, legitimately create a benefit for the class." Cendant, 404 F.3d at 196-97.  Normally, Firm's identification of the class action would have provided a substantial and independent benefit that aided in recovery of the common fund and would entitle Firm to attorneys' fees.  However, it did not in this instance.

 

Instead, the Eleventh Circuit found that Firm repeatedly subordinated the interests of the class to its own interests during the litigation. 

 

The Appellate Court noted that Settlement I provided a huge payout for Firm but little to the class and allowed Company to terminate the agreement for any reason including if there were too many claimants. Additionally, the Court pointed to the requirement of Settlement I that the case be refiled in Illinois appeared to only exist so Firm could receive 1/3 of the common fund as attorneys' fees instead of only 25%.

 

The Eleventh Circuit found that the record showed that Firm put the class in serious risk of harm with Settlement I for the sake of inflated attorneys' fees and for convenience. Thus, Firm "closed the doors of equity" on its claim for attorneys' fees under Settlement II.

 

Therefore, the Eleventh Circuit held that the trial court did not abuse its discretion by denying Firm attorneys' fees and affirmed the ruling of the trial court.

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th 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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Sunday, July 17, 2022

FYI: 5th Cir Holds Stay of Foreclosure Did Not Support "Amount in Controversy"

The U.S. Court of Appeals for the Fifth Circuit recently held that a stay of a non-judicial foreclosure due to the filing of a lawsuit by the borrower did not support an "amount in controversy" in excess of $75,000 for federal diversity jurisdiction purposes.

 

Because the plaintiff borrower stipulated that he would only seek damages up to $74,500, the Fifth Circuit ruled that the trial court lacked subject matter jurisdiction, and reversed all of the trial court's rulings in the case, including its final judgment in favor of the defendant.

 

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

 

The appeal arose from a lawsuit brought by a debtor ("Debtor") against a mortgagee ("Mortgagee") alleging supposed violations of the Texas Debt Collection Act ("TDCA") and breach of the common law duty of cooperation, fraud and negligent misrepresentation.  Debtor included a stipulation that the damages sought did not exceed $74,500. 

 

Creditor removed the case to federal court.  In support of its removal, Mortgagee argued that Debtor's lawsuit stayed Mortgagee's non-judicial foreclosure sale and therefore put the value of the home, which exceeded $75,000, in dispute.

 

Debtor moved to remand the lawsuit back to state court arguing the amount in controversy could not exceed the stipulated amount. The federal trial court denied the motion for remand, concluding that Debtor's statement that the damages sought were less than $74,500 was insufficient. The federal trial court ruled that it had to measure the amount in controversy "by the value of the object of the litigation," and not what "the complaint states th[e] damages are 'not to exceed.''

 

The case moved forward, eventually resulting in judgment in favor of Mortgagee. Debtor appealed, challenging the denial of his motion to remand.

As you may recall, under 28 U.S.C. § 1332(a), federal courts "shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs and is between…citizens of different States."

 

Section 1332 does not elaborate on how to determine the amount in controversy.  However, section 1446(c) sets a general rule that the amount in controversy is "the sum demanded in good faith in the initial pleading". 28 U.S.C. § 1446(c)(2). The statute then provides two exceptions to this general rule: (1) if nonmonetary relief is requested in the initial pleading; or (2) the initial pleading seeks a money judgment and that state either does not permit a demand for a specific sum or allows for recovery of a sum greater than that demanded.  28 U.S.C. § 1446(c)(2)(A).

 

When either exception is shown, then "the defendant's [plausible] amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court." Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014). If the allegation is questioned, "both sides submit proof and the court decides, by the preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied." Id. at 88.

 

In the instant matter, the Fifth Circuit found that the amount in controversy did not exceed $75,000 for two reasons. First, Mortgagee did not establish by a preponderance of the evidence that the amount exceeded $75,000.  Although Mortgagee submitted evidence that the property value exceeded the jurisdictional threshold, the Fifth Circuit noted that it failed to show that the foreclosure stay put the value of the house in controversy.

 

In explanation, the Fifth Circuit noted that the amount in controversy is measured by the value of the object of the litigation. See, e.g., 14AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3702.5 (4th ed.) [hereinafter Wright & Miller]. In the instant matter, Debtor sought damages up to $74,500 for the alleged violations of his rights under the TDCA, and not any additional relief. Thus, the Appellate Court held, the object of the litigation was money damages, and those were below the jurisdictional minimum.

 

However, Mortgagee argued that because the lawsuit triggered an automatic stay of the foreclosure, the value of the house was put in dispute, thus making the house the real object of the litigation. However, the Fifth Circuit noted that it has been well settled that neither the collateral effect of a suit or judgment can be counted toward the amount in controversy. See, e.g., New England Mortg. Sec. Co. v. Gay, 145 U.S. 123, 130 (1892).

 

The Fifth Circuit found that the automatic stay of the foreclosure was collateral for three reasons. First, the automatic stay of the foreclosure was triggered by the filing of Debtor's suit itself; it was detached from the suit's outcome. The Court reasoned that just as a collateral effect of a judgment cannot count toward the amount in controversy, see New England Mortg., 145 U.S. at 130, neither can the collateral effect of filing a suit.

 

The second reason provided by the Fifth Circuit was that the stay was temporary regardless of the outcome of the suit and did not determine ownership of the property. The Court distinguished this from injunctions, declaratory relief, and other forms of specific relief that definitively resolve parties' rights and are permanent. As the automatic stay did not permanently alter anyone's rights, the house was not the suit's direct object.

 

In addition, the Fifth Circuit noted that Mortgagee exposed itself to the automatic stay when it opted to foreclose via non-judicial foreclosure rather than judicial foreclosure, which would not be subject to the automatic stay.

 

Based on this reasoning, the Court found that Mortgagee failed to establish the amount in controversy exceed $75,000.

 

The Fifth Circuit then ruled that the amount in controversy did not exceed $75,000 because Debtor stipulated prior to removal that the amount was below the jurisdictional limit.

 

The Court noted "[c]onsent of parties cannot give the courts of the United States jurisdiction, but the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission." Ry. Co. v. Ramsey, 89 U.S. (22 Wall.) 322, 327 (1874).  In addition, the Court noted that it and many of its sister circuits have concluded that facts that bear on jurisdiction may be stipulated to by the parties. See, e.g., Hogar Agua y Vida en el Desierto, Inc. v. Suarez-Medina, 36 F.3d 177, 182 n.4 (1st Cir. 1994); Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 265 (4th Cir. 2004).

 

The Fifth Circuit ruled that the amount in controversy requirement was no exception to this rule and cited the Supreme Court of the United States holding that "[i]f [the plaintiff] does not desire to try his case in the federal court[,] he may resort to the expedient of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove." St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938). This principle was reaffirmed when the Supreme Court held "federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement." Standard Fire Co. v. Knowles, 568 U.S. at 588, 595 (2013).

 

In addition, the Fifth Circuit held that stipulations as to the amount in controversy can be binding even when they are disputed by the defendant because the plaintiff is stating a fact that it is not seeking nor will it accept more than a particular amount, and as a legal consequence the court cannot order more than that amount. As the amount in controversy turns only on the plaintiff's demand and the court's ability to limit the plaintiff to that demand, the binding nature of the plaintiff's statement does not depend on the defendant.

 

The Fifth Circuit ruled that Debtor's stipulation was legally binding as his two statements could best be read as Debtor stating he was seeking and would accept no more than $74,500.  Mortgagee argued the stipulation was insufficient, but the Court disagreed finding support in both Texas law and the preclusion doctrine.

 

Thus, the Fifth Circuit concluded that Mortgagee failed to establish that the amount in controversy exceeded the jurisdictional floor of $75,000, and that the trial court therefore erred in denying Debtor's motion for remand, and that the trial court lacked subject matter jurisdiction when it entered final judgment in favor of Mortgagee.

 

Accordingly, the Appellate Court reversed the trial court's rulings and remanded with instruction to remand the action back to state court.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th 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   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC

 

 

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Thursday, July 14, 2022

FYI: 11th Cir Affirms Over 75% Reduction in Attorney's Fees Requested By Prevailing Plaintiff

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court's attorney fee award that reduced the prevailing plaintiff's requested fees by over 75%, ruling that the trial court did not abuse its discretion.

 

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

 

Plaintiff ("Consumer"), a self-avowed "tester" of businesses compliance with the Americans with Disabilities Act ("ADA") sued an autobody repair shop and its landlord (referred to jointly as "Business") after visiting the shop and observing various ADA violations. The trial court granted injunctive relief and ordered Business to pay reasonable attorney's fees and costs under 42 U.S.C. § 12205.

 

Consumer subsequently filed a motion for attorney's fees requesting $41,260.30 for attorney's fees, litigation expenses, expert witness fees, and costs. $38,014.50 of the requested amount was for attorney and paralegal fees.

 

The trial court granted the motion in part and denied in part finding the requested fees and expenses were "grossly disproportionate to the context and circumstances of the case" and noting that "[w]hile the ADA permits attorneys to recover fees, it does not give attorneys license to over-litigate cases at the expense of defendants who are willing to modify their property to comply with the ADA."

 

The trial court ultimately determined an across-the-board reduction was warranted as the result "could have been achieved much more efficiently and far less extensively," awarding a total of $8,579.80 in fees and expenses, $7,500 of which were for attorney's fees. Consumer appealed.

 

Under the ADA, a court "in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. The fee is calculated "by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888 (1984). This sum is often referred to as the "lodestar." Ass'n of Disabled Ams. V. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006).

 

Consumer argued that the trial court erred in finding the hours claimed in the fee request were excessive and unnecessary. The Eleventh Circuit noted that a trial court should deduct time for hours which are excessive or unnecessary as the purpose of attorney's fees is "to compensate attorneys for work reasonably done actually to secure for clients the benefits to which they are entitled." Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302, 1305 (11th Cir. 1988).  The Appellate Court also noted any exclusions for unnecessary or excessive work are left to the discretion of the trial court. Id. at 1301.

 

The Eleventh Circuit found the trial court's explanation as to why it found some work unnecessary and excessive sufficient.

 

The trial court explained that Consumer's attorney's claim that he spent 88 hours litigating the case was unreasonable, as he had at least 140 other ADA lawsuits during the subject period. The trial court further explained why it found specific categories of hours unnecessary and excessive, for example finding that Consumer's counsel billed excessively for "boilerplate…legal tasks," and for "clerical work or work that could have been performed by [his] paralegal." Finally, the trial court referenced Consumer's attorney's billing for unnecessary motions and found that "much of the time expended was of minimal value to the ultimate result" as the same result could have been achieved "by engaging in [an] early settlement." 

 

Consumer made several arguments against the trial court's findings. First, Consumer argued that the trial court abused its discretion in finding the lawsuit routine and that Consumer's counsel billed excessively in litigating the claims, arguing that courts have lauded the policy interest served by litigating ADA cases. See., e.g. Dowdell v. City of Apopka, 698 F.2d 1181, 1190-91 (11th Cir. 1983).

 

The Eleventh Circuit rejected this argument noting that despite any recognized policy interest, attorneys are not authorized by § 12205 to expend unreasonable hours to achieve it. See Norman, 836 F.2d at 1301-02. In addition, the Eleventh Circuit agreed with the trial court's finding that the case was a straightforward ADA case in which the defendant agreed to correct the violations, Consumer's counsel had extensive experience in the area, and many of the filings involved "boilerplate" motions and pleadings.

 

Consumer next argued that the trial court abused its discretion by finding that Consumer prolonged the litigation. In support of this finding, the trial court referenced Consumer's counsel's actions at mediation, where despite being shown a proposal for corrections of the remaining violations, counsel filed a motion for sanctions because the owner of the autobody shop who was elderly and ill was not able to attend mediation. The trial court further noted that counsel's approach to the litigation was overly aggressive as Business had agreed to fix the violations. Thus, the Eleventh Circuit found the trial court did not abuse its discretion in finding Consumer's counsel prolonged the litigation resulting in unnecessarily increased attorney's fees.

 

Finally, Consumer argued that the trial court erred in classifying certain tasks as administrative, finding the entries for reviewing the docket excessive and finding the time Consumer's counsel spent on drafting the motion for fees as not compensable. The Eleventh Circuit once again found Consumer failed to show the trial court abused its discretion.

 

Consumer next argued that the trial court abused its discretion in failing to hold an evidentiary hearing to determine if the case could have been settled earlier. Consumer relied on the ruling in Love v. Deal, 5 F.3d 1406, 1409 (11th Cir. 1993) where the court held "[i]t is not necessary for a plaintiff to request an evidentiary hearing. Rather, the essential factor is whether there is a dispute of material fact that cannot be resolved from the record." Id.

 

The Eleventh Circuit noted this statement in Love conflicted with its earlier holding in Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th.  Cir. 1988) which held that making an award without an evidentiary hearing was an abuse of discretion "where an evidentiary hearing was requested, where there were disputes of facts, and where the written record was not sufficiently clear to allow the trial court to resolve the disputes of fact." Norman, 836 F.2d at 1302-03 (11th Cir. 1988).

 

The Eleventh Circuit held it was bound by the precedent set forth in Norman, as the "earliest precedent that reached a binding decision on the issue." Washington v. Howard, 25 F. 4thh 891, 900 (11thh Cir. 2022). As the record showed that Consumer never requested an evidentiary hearing, the Appellate Court ruled that the trial court did not err in failing to hold such a hearing as consumer had "failed to meet the first prerequisite for obtaining a hearing." Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d at 1245-46.

 

Finally, Consumer argued that the trial court erred in applying a 75% across-the-board reduction.  A court may apply an across-the-board cut where the fee application is voluminous and the "number of hours claimed is unreasonably high." Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350. When an across-the-board cut is applied the court must "concisely and clearly articulate [its] reasons for selecting specific percentage reductions" so there can be "meaningful review." Loranger v. Stierheim, 10 F.3d at 783 (11th Cir. 1994).

 

The Eleventh Circuit rejected Consumer's argument that the across-the-board reduction was conclusory as the trial court explained in detail the reasons why it found the hours excessive, unnecessary and thus, unreasonable.

 

Thus, the Appellate Court found the trial court's order "articulate[d] the decisions it made, [gave] principled reasons for those decisions, and show[ed] its calculation" to allow for "meaningful review." Loranger, 10 F.3d at 781.

 

Thus, the Eleventh Circuit found the trial court did not abuse its discretion and affirmed the order.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th 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   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC

 

 

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.


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and

 

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