FYI: 2nd Cir Holds State AG Action Not Removable Under CAFA

The U.S. Court of Appeals for the Second Circuit recently held that a "parens patriae" lawsuit brought by a state Attorney General seeking damages, civil penalties, and injunctive relief was not removable as a "class action" under the federal Class Action Fairness Act ("CAFA"), as such suit was not "filed under" Federal Rule 23 or a "similar" state statute or procedure, as required by CAFA, and declined to address whether the action qualified as a "mass action" under CAFA. 

 

In so ruling, the Court declined to adopt a "claim-by-claim" analysis of the complaint to determine whether any of the claims satisfied CAFA's jurisdictional prerequisites.  A copy of the opinion is attached.

 

Seeking among other things restitution, damages, civil penalties, and equitable and injunctive relief, the Commonwealth of Kentucky, along with certain counties located in Kentucky ("collectively "Plaintiff"), filed suit in state court through Kentucky's Attorney General against a pharmaceutical company ("Company") that manufactures a certain pain-management drug, alleging that Company violated Kentucky common and statutory law through its marketing and sale of the drug. 

 

Specifically, the complaint alleged that Company fraudulently misled health care providers, consumers, and government officials regarding the supposedly addictive nature of the drug, thereby forcing state and local government to spend millions of dollars investigating, prosecuting, and incarcerating individuals involved in criminal activity to support their addiction to the drug.

 

Company removed the action to federal court, arguing that Plaintiff's claims constituted a putative "class action" removable under the Class Action Fairness Act of 2005 ("CAFA") and that the claims raised federal questions.    Following transfer to the Southern District of New York, the lower court granted Plaintiff's motion to remand, concluding that it lacked subject-matter jurisdiction because the suit failed to meet CAFA's jurisdictional requirements. 

 

Company sought leave to appeal the remand.  The Second Circuit denied the petition.

 

As you may recall, CAFA amended the federal diversity statute to confer federal jurisdiction over certain class actions where: (1) the proposed class contains at least 100 members; (2) minimal diversity exists between the parties (that is, where "any member of a class of plaintiffs is a citizen of a State different from any defendant"); and (3) the aggregate amount in controversy exceeds $5,000,000.  28 U.S.C. § 1332(d)(2)-(6).  "Class action" is defined as "any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action."  28 U.S.C. § 1332(d)(1)(B). 

 

Federal Rule 23 in turn provides that class actions must meet the requirements of adequacy of representation, numerosity, commonality, and typicality.  See Fed. R. Civ. Proc. 23.

 

CAFA similarly confers federal court jurisdiction over "mass actions," which term specifically excludes class actions under Rule 23 and is defined as "any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the [$75,0000] jurisdictional amount requirement[] . . ."  See 28 U.S.C. § 1332(d)(11)(B), (C)(ii).

 

Declining to address the question whether this action qualified as a "mass action," but noting Company's possible motive for removing the action as a purported "class action" rather than as a "mass action," the Court noted that actions failing to meet the definition of a "class action" under CAFA do not confer federal court jurisdiction regardless whether such actions meet the other traditional prerequisites of numerosity, minimal diversity, and amount in controversy.  The court thus focused on whether Plaintiff's complaint was "filed under [federal ] rule 23 . . . . or similar State statute or rule of judicial procedure authorizing an action to be brought . . . as a class action."  See 28 U.S.C. § 1332(d)(1)(B).  

 

Taking its lead from recent decisions from numerous sister circuits, and noting that Plaintiff's complaint was not filed under Rule 23, the Second Circuit then considered whether the complaint was filed under a state statute or procedural rule "similar" to rule 23 that authorizes class actions. 

 

Accordingly, pointing out that Plaintiffs were seeking to enforce their various claims under two state statutes, neither of which authorize[d] suits "as a class action" or bore "any resemblance to Rule 23," the Second Circuit concluded that Plaintiff's parens patriae action implicated few if any of the typical class-like procedures, such as the filing by a class representative on behalf of a similarly-situated plaintiffs.  

 

Moreover, the Court found significant the fact that Plaintiff's complaint made no mention of the state law analog to Rule 23, Kentucky Rule of Civil Procedure 23, which specifically provides "a procedure by which a member of a class whose claim is typical of all members of the class can bring an action not only on his own behalf but also on behalf of all others in the class."  See West Virginia ex rel. McGraw v. CVS Pharmacy, Inc., 646 F.3d 169, 172, 175-77 (4th Cir. 2011) (ruling that a parens patriae action that was brought by the state under state statutes not similar to Rule 23 was not removable as a "class action" or "mass action" under CAFA). 

 

The Second Circuit, rejecting Company's various assertions, including the argument that the Court should parse the complaint on a claim-by-claim basis, rather than as a whole, ruled that because this action was not "filed under a state rule or statute 'similar' to Rule 23," it did not qualify as a "class action" within the meaning of CAFA.  See, e.g., AU Optronics Corp. v. South Carolina, 699 F.3d 385, 390, 393-94 (4th Cir. 2012)(rejecting the claim-by-claim approach within context of "mass actions"); LG Display co. v. Madigan, 665 F.3d 768, 773-74 (7th Cir. 2011)(similarly rejecting claim-by-claim approach, noting that "just because CAFA was meant to expand federal courts' jurisdiction over class actions, it does not follow that federal courts are required to deviate from the "whole complaint" analysis when evaluating whether a State is the real party in interest in a parens patriae case").

 

Accordingly, having concluded that this parens patriae action was not a "class action" under CAFA, the Second Circuit ruled that the case was properly remanded for resolution under Kentucky law.

Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
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FYI: Cal App Ct Upholds Denial of Class Cert, Due in Part to Factual Issues as to "Consumer" or "Commercial" Nature of Debts at Issue

The California Court of Appeal, First District, recently affirmed the denial of class certification in a case involving setoffs against public benefit payments in deposit accounts.  Among other things, the Court ruled that there was no identifiable class of bank customers whose deposit accounts had been subjected to setoff for obligations arising in a separate account, in violation of California's statute governing the manner in which banks may exercise the right to set off consumer debts, due in part to factual issues as to the consumer or commercial nature of the debts being set off. 

A copy of the opinion is available at:  http://www.courts.ca.gov/opinions/documents/A132323.PDF.

 

In a lawsuit first filed over 15 years ago, the named plaintiff ("Plaintiff") on behalf of a putative statewide class, sought to challenge the alleged practice of defendant bank ("Bank") of setting off funds from accounts into which public benefits payments had been deposited against overdraft and other bank fees related to separate deposit accounts.

 

The trial court had certified a class defined as "[a]ll California residents who have, have had or will have . . . a checking or savings deposit account with [Bank] into which payments of Social Security benefits or other public benefits are or have been directly deposited by the government or its agent."  After a trial that resulted in a jury verdict in favor of the class against Bank, the Court of Appeal reversed, ruling that the judgment hinged on an erroneous application of law to Bank's practice of internally setting off overdrafts and bank fees against funds within checking accounts that received government benefits that are statutorily exempt from execution and attachment ("Exempt Funds"). In that appeal, the court stressed that the practice of deducting overdrafts and bank fees within single deposit accounts containing Exempt Funds was both functionally and legally distinct from setoffs between separate accounts. See Kruger v. Wells Fargo Bank, 11 Cal.3d 352 (1974)("Kruger")(prohibiting a bank setoff for a credit card delinquency).

 

Affirming the ruling of the Court of Appeal, the California Supreme Court held that Kruger did not prohibit the practice of setting off overdrafts and bank fees within a single account.  The state Supreme Court further rejected Plaintiff's assertion that his claims included both setoffs between accounts and within a single account. 

 

On remand to the trial court, Plaintiff, seeking to extend Kruger to this case, argued that Bank's balancing and charging fees within a single account is indistinguishable from Bank's setoff of debt external to a customer's account, such as a separate credit card account.  He thus asserted that he was entitled to amend his complaint to add a new claim on behalf of a class of individuals with more than one deposit account at Bank that had been subject to setoff.  The parties filed cross-motions for entry of judgment, and the trial court allowed Plaintiff to amend his complaint to pursue the "two-account" theory. 

 

Accordingly, Plaintiff's amended complaint alleged among other things that Bank's practice and policy of setting off between two accounts violated California's Financial and Civil Codes.   Plaintiff also ultimately proposed a new class consisting of over "hundreds of thousands" of California residents who receive Exempt Funds into a deposit account, and whose deposit accounts at Bank were subject to setoff to "collect sums allegedly owed from a separate [Bank] account . . . also maintained by the individual."  In opposition, Bank argued that the proposed class was overbroad, that Plaintiff had failed to show that the proposed class was readily identifiable, and that there was no feasible way to differentiate between lawful and unlawful two-account setoffs. 

 

The lower court denied class certification, as well as Plaintiff's request for additional time to conduct more discovery, pointing out in part that Plaintiff had had ample opportunity to produce evidence on the certification issue.  Plaintiff appealed the denial of class certification for the "two-account class."  The Court of Appeal affirmed, ruling in part that Plaintiff failed after extended discovery to show that any means existed to identify a class of bank customers who had been subject to unlawful setoffs.

 

Disagreeing with Plaintiff's arguments that Bank was estopped from arguing that not all two-account seizures of Exempt Funds are unlawful, the Appellate Court examined requirements for class certification, judicial estoppel, and whether the lower court had improperly considered the merits of Plaintiff's claim.

 

Turning first to class certification requirements, the Court noted that in order to maintain a class action, there must be an ascertainable class, and a well-defined community of interest among the class members.  Such community of interest, the Court explained, embodies three factors:  (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.  See Kennedy v. Baxter Healthcare Corp., 43 Cal. App.4th 799, 808 (1996).  When the proposed class is overbroad and the plaintiff provides no means for distinguishing between proposed class members who belong in the class from those who do not so belong, class certification is properly denied, the Court reasoned. 

 

Applying this test, the Court noted that Plaintiff failed to define an identifiable class of accounts that were unlawfully set off against amounts owing to Bank.  Noting in part that legislation enacted a year after Kruger governs the manner in which banks exercise the right to set off debts, and expressly limits its regulatory scope to consumer debt, such as that concerned in Kruger, the Court observed that Plaintiff's proposed class potentially includes a much broader range of banking transactions than the consumer debt subject to the statute.  See Cal. Fin. Code § 1411 (formerly § 864)("Setoff Statute"). 

 

Agreeing with the lower court that the proposed class description would include whole categories of legal setoffs not within the scope of the Setoff Statute, the Appellate Court listed types of setoffs that would be pulled into the proposed class of claims, such as setoffs for deficiencies in commercial accounts, setoffs due to bank fees and overdrafts, and setoffs for debts not primarily incurred for personal expenses. 

 

The Appellate Court thus rejected Plaintiff's contention that the Setoff Statute did not limit Kruger's prohibition of setoffs from accounts holding Exempt funds, pointing out that the Setoff Statute "comprehensively" regulates the legality of bank setoffs but confines is applicability to consumer debt.   Noting that Plaintiff failed to show that any means existed to identify a class of bank customers who had been subject to unlawful setoffs, the Court concluded that the lower court properly denied class certification.

 

With regard to Plaintiff's argument that Bank was judicially estopped from opposing Plaintiff's two-account class, the Court determined that judicial estoppel did not apply in this case.  In so deciding, the Court noted that judicial estoppel is equitable in nature the application of which falls within the court's discretion.   Pointing out that Bank's prior statements in the prior appeal as to "whether or not two-account setoffs are forbidden in all circumstances was irrelevant to both courts' limited determinations as to the validity of one-account setoffs."

 

Finally, the Appellate Court also rejected Plaintiff's assertion that the lower court impermissibly ruled on the merits of his claims as part of deciding the class certification issues.  In so doing, the Court noted that issues going to the merits of a case may overlap with class action requirements, such as commonality, predominance, and typicality.

 

Describing as "nonsense" Plaintiff's argument that, due to unfair surprise at the lower court's interpretation of the Setoff Statute, he was entitled to remand in order to propose a new class definition and conduct even more discovery, the Appellate Court affirmed the denial of class certification. 

 

 

Ralph T. Wutscher
McGinnis 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
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FYI: 8th Cir Affirms Dismissal of Loan Mod Allegations of Fraud and Promissory Estoppel

The U.S. Court of Appeals for the Eighth Circuit recently upheld the dismissal of allegations by borrowers against their mortgage servicer for allegedly misrepresenting that the servicer would, and had the authority to, modify their loan under the federal HAMP program, because the borrowers: (1) failed to state a claim for fraudulent misrepresentation "with particularity," as required; and (2) failed to plead a sufficiently definite promise to support a claim for promissory estoppel. 

 

In so ruling, the Court reasoned that: (1) there was no valid reason to relax the heightened federal pleading standards for fraud, because the borrowers always had the information in their possession to enable them meet those higher standards; and (2) under Missouri law, inconsistent information provided to the borrowers about a possible loan modification did not support a conclusion that the loan servicer had made a promise as "definite and delineated as an offer under contract law" to support a promissory estoppel claim.  A copy of the opinion is attached.

 

Borrowers with a home mortgage loan attempted to negotiate a loan modification with their loan servicer ("Servicer") under the federal Home Affordable Modification Program ("HAMP").  After supposedly receiving conflicting information from Servicer, and allegedly believing they would be eligible for a HAMP loan modification, Borrowers stopped making their mortgage payments.  Servicer initiated foreclosure proceedings. 

 

Seeking injunctive relief, Borrowers filed a lawsuit in Missouri state court, alleging fraudulent misrepresentation and promissory estoppel.   Borrowers alleged that unnamed Servicer representatives assured them that Borrowers would qualify for a modification, and that their mortgage would be modified upon receipt of certain documentation.  The complaint further alleged that Borrowers had been unable to receive "a consistent and candid answer from [Servicer] representatives regarding a loan modification" and that they stopped paying their mortgage supposedly in "reliance on [Servicer's] promise."

 

Servicer removed the action to federal court invoking diversity jurisdiction, and then moved to dismiss for failure to state a claim.  The lower court granted Servicer's motion.  Borrowers appealed.

 

The Eighth Circuit affirmed, ruling that the Borrowers failed to plead fraud with sufficient particularity, and that the supposedly inconsistent information from Servicer did not constitute a definite promise on which Borrowers could reasonably rely.

 

As you may recall, under the Federal Rules of Civil Procedure, a party must state with particularity the circumstances constituting the fraud.  Fed. R. Civ. P. 9(b) ("Rule 9(b)").

 

Noting that under Missouri law, fraudulent misrepresentation consists of nine different elements, and that under the Federal Rules of Civil Procedure, claims for fraud must state with particularity the circumstances constituting the fraud, the Court observed that the complaint must thus plead such matters as the time, place and contents of false representations, and must also identify the specific person(s) "making the misrepresentation and what was obtained or given up thereby."  See Abels v. Farmers Commodities Corp., 259 F.3d 910, 920 (8th Cir. 2001)(ruling that under Rule 9(b), fraud requires pleading time, place and contents of false representations, identity of person making misrepresentation, and statement of what was obtained or given up  as a result); Renaissance Leasing, LLC v. Vermeer Mg. Co., 322 S.W.3d 112, 131-32 (Mo. 2010)(listing elements of fraudulent misrepresentation under Missouri law). 

 

Applying this standard, the Eight Circuit agreed with the lower court that Servicer's "representations as to expectations and predictions for the future [were] insufficient to authorize a recovery for fraudulent misrepresentation."  In so doing, the Court noted Borrowers' assertion that the lower court had "misunderstood" their claim as being based simply on a promise that they "would" qualify for a modification, and that Borrowers further argued that Servicer had knowingly misrepresented that it had the authority to modify their loan.  On this latter point, the Court explained that because Borrowers had failed to argue for a private right of action under HAMP, any supposed representation by Servicer as to its authority to modify their loan under federal law was irrelevant to their common-law state claims. 

 

Moreover, in observing that Borrowers also failed to identify the specific employees alleged to have made the representations, as well as the times and places at which such representations were made, the Eighth Circuit declined to apply a relaxed pleading standard to the fraudulent misrepresentation claim, as Borrowers requested, reasoning that Borrowers had always been in possession of the information that would have enabled them to "state with particularity" the circumstances of Servicer's alleged misrepresentations, such as the exact dates, times, and nature of the representations.  Compare Doran v. Wells Fargo Bank, CIV. 11-00132 LEK, 2012 WL 1066879 (D. Haw. Mar. 28, 2012)(slip op.)(finding inter alia that heightened pleading standards of Rule 9(b) were met, even though plaintiff failed to name individuals who made the alleged misrepresentations) with Emery v. Am. Gen. Fin., Inc., 134 F.3d 1321, 1323 (7th Cir. 1998)(relaxing the heightened Rule 9(b) pleading standards upon showing that plaintiff was unable, without pre-trial discovery, "to obtain essential information peculiarly in the possession of the defendant.").

 

As for Borrowers' promissory estoppel claim, the Eighth Circuit focused on the requisite element of a definite promise in order to state such a claim.  See Prenger v. Baumhoer, 939 S.W.2d 23, 27 n.4 (Mo. Ct. App.  1997)("In Missouri, . . . it is required that a promise be as definite and delineated as an offer under contract law").  Thus, noting that Borrowers themselves had alleged, on the one hand, that Servicer represented that their mortgage "would be modified upon receipt of requested documentation," but, on the other, that Borrowers never received "a consistent and candid answer from [Servicer]" about a loan modification, the Court ruled that such inconsistent allegations "negated any inference that this representation was a 'promise' sufficient to meet the first requisite element of promissory estoppel, namely that there be a "definite and delineated" representation.

 

Accordingly, the Court ruled that Borrowers had failed to state plausible claims for fraudulent misrepresentation, or for promissory estoppel, and thus affirmed the lower court's dismissal. 

 

Ralph T. Wutscher
McGinnis 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@mtwllp.com
 

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FYI: Ill App Ct Rules Changes to Beneficiaries on POD Account May Be Accepted Shortly After Death of Account Holder

Reversing the lower court, the Illinois Appellate Court, Fifth District, recently ruled that under the Uniform Commercial Code and the Illinois Trust and Payable on Death Accounts Act, a change in the designated beneficiary of a payable-on-death account was effective if the account holder manifested her intention to change the beneficiary designation "during his or her lifetime," and the written instruments used to manifest that intention were "accepted by" the financial institution. 

 

In so ruling, the Court noted in part that the "during his or her lifetime" limitation for making the change applied only to the actions of the account holder, and not to the time of acceptance of the written instruments by the bank. 

 

A copy of the opinion is available at:  http://www.state.il.us/court/Opinions/AppellateCourt/2013/5thDistrict/5110530.pdf.

 

A bank customer ("Account Holder") opened two payable-on-death ("POD") accounts (also known as Totten Trusts) consisting of certificates of deposit ("CDs").   Because the accounts were POD, Account Holder remained the owner and holder of the accounts with full control over the funds in the accounts during her lifetime.  Account Holder's two granddaughters ("Granddaughters") were the original designated beneficiaries on the account and were to become the holders of the CDs upon Account Holder's death.   However, Account Holder later contacted plaintiff bank ("Bank") requesting forms for changing the beneficiaries on the CDs. 

 

Bank sent Account Holder the requisite forms, and Account Holder filled in the paperwork to indicate a change in the designated beneficiary for both CDs to Account Holder's daughter ("Daughter"), the mother of Granddaughters.  Account Holder placed the completed forms in the mail.  Two days after mailing the forms, Account Holder died.

 

The day following Account Holder's death, Bank received the completed change-of-beneficiary forms and changed the designated beneficiary on both CDs to Daughter.  After being informed of Account Holder's death, Bank filed an interpleader complaint against Granddaughters and Daughter, seeking a determination of whether it had the authority to accept Account Holder's request for a change of beneficiaries on the CDs.  

 

Granddaughters moved for summary judgment, asserting that the CDs should have remained in their original form with Granddaughters as the designated beneficiaries, because Bank lacked authority to make any changes as it had not "accepted" the written forms changing the beneficiary during Account Holder's lifetime.   Daughter, on the other hand, individually and in her capacity as the executor of Account Holder's estate, also moved for summary judgment, asserting that Account Holder had effectively changed the beneficiaries for the CDs, because Account Holder did all that was required of her with respect to the "written instrument" prior to her death. 

 

The lower court entered summary judgment in favor of Granddaughters, reasoning that the change needed to have been actually accepted by Bank before Account Holder's death in order to be effective under the Illinois Trust and Payable on Death Accounts Act, 205 ILCS 625/1-15 ("POD Act").   Daughter appealed.  The Appellate Court reversed and remanded.

 

As you may recall, referring to the death or incompetence of a bank customer, the Uniform Commercial Code ("UCC") provides in part that:  "(a) . . . .  Neither death nor incompetence of a customer revokes the authority to accept, pay, collect, or account until the bank knows of the fact of death or of an adjudication of incompetence and has reasonable opportunity to act on it.  (b) Even with knowledge, a bank may for 10 days after the date of death pay or certify checks drawn on or before that date unless ordered to stop payment by a person claiming an interest in the account."  810 ILCS 5/4-405(a), (b).

 

In addition, the POD Act provides in part that "[i]f one or more persons opening or holding an account sign an agreement with the institution providing that on the death of the last surviving person designated as holder the account shall be paid to or held by one or more designated  beneficiaries, the account, and any balance therein which exists from time to time, shall be held as a payment on death account and unless otherwise agreed in writing between the person or persons opening or holding the account and the institution:  (a) Any holder during his or her lifetime may change any of the designated beneficiaries to own the account at the death of the last surviving holder without the knowledge or consent of any other holder or the designated beneficiaries by a written instrument accepted by the institution[.]"  205 ILCS 625/4(a).  

 

Moreover, the POD Act controls the distribution of funds of a POD account by providing that a financial institution is not required to distribute assets until presented with legal evidence of the death of the holder and proper requests by the beneficiaries.  205 ILCS 625/10.

 

Noting the ambiguity in the POD Act through its use of the phrase "during his or her lifetime" and the past-tense verb "accepted," the Court, in construing the terms and provisions of the POD Act as a whole, concluded that the POD Act's provision governing the change of beneficiaries "was intended to protect the intentions of the holder of the account, and not to set a bright-line time for the acceptance or [sic] written instrument by financial institutions."  

 

Thus, after reviewing the history of POD accounts and noting that such accounts are testamentary in nature, the Court reasoned that paragraph (a) of the POD Act is structured in such a way as to give Bank the authority to accept Account Holder's request for change of beneficiaries, as the timing issue is directed to the actions of the holder of a POD account and not to acceptance by Bank.

 

Specifically, the Court noted that the phrase "during his or her lifetime" strongly suggests that the time limitation apply only to the holder's execution of the written instrument, and not to the time of acceptance by the financial institution.   See In re Estate of Petralia, 32 Ill 2d 134, 204 N.E.2d 1, 2 (1965)(adopting definition of Totten trust in the Restatement which explained that the phrase "during his lifetime" means that the intent of the holder, and not that of any potential beneficiary, controls the rights in the account assets and that to revoke the account, the holder need only manifest intention with no particular formalities required to do so).  See also Restatement (Second) of Trusts § 58 cmt. c (1959). 

 

Accordingly, in light of the history of POD accounts, the Court sought to determine whether Account Holder had manifested her intentions to change the beneficiaries of the CD accounts "during her lifetime."   See Cotton v. First State Bank of Mendota, 182 Ill. App. 3d 400, 402-03, 527 N.E.2d 1103, 1105 (1989)(concluding that bank had no obligation to consult with the beneficiary about changing the named beneficiary and noting that holders of POD accounts have absolute right to alter or remove POD provisions); In re Estate of Weiland, 338 Ill App. 3d 585, 602, 788 N.E.2d 811, 826-27 (2003)(ruling that holder's failure to sign a signature card did not invalidate the creation of a POD account and observing that it is the intent of the account holder, not the form of the written agreement, that governs whether the holder intended to establish a POD account); Gonzalez v. Second Fed. Sav. and Loan Ass'n, 2011 Ill App (1st 102297, ¶ 47, 9054 N.E.2d 245 ("Gonzalez")(noting that a written instrument, not necessarily a signature card, executed by the holder creates a presumption that the holder intended to create a POD account and ruling that the propriety of the document requesting a change is determined by whether the financial institution actually accepted the instrument).

 

In taking issue with the lower court's bright-line test whereby only written instruments that are actually accepted by the financial institution prior to a holder's death may effect a change in beneficiaries, the Appellate Court noted, as did the court in Gonzalez, that the POD Act allows a change of designated beneficiaries through any form "accepted" by the institution and that the form of acceptable document is left to the discretion of the financial institution.

 

Moreover, pointing out that the UCC complements the POD Act insofar as the UCC clarifies the authority of Bank to accept the forms presented by Account Holder before it knew of her death, the Court noted that the UCC allowed Bank to effectuate the intent of Account Holder while not upsetting the procedure for distribution of POD account assets under the POD Act.   As the Court explained, "the [POD] Act and the [UCC] allow financial institutions to respond in good faith to the manifested intentions of their clients" and the UCC gave Bank the "right to accept, and account, for a reasonable time after the death of [Account Holder], and [Account Holder] instructed [Bank] through precise written instruments." 

 

Accordingly, ruling that summary judgment in favor of Granddaughters was not warranted, the Appellate Court reversed and remanded with directions that if the lower court determines that Bank accepted the written instruments from Account Holder, the change of beneficiaries was effective under the POD Act and Bank will not be not subject to liability for having accepted the instruments. 

 

Ralph T. Wutscher
McGinnis 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@mtwllp.com
 

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 are available on the internet, in searchable format, at:
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FYI: Missouri Fed Ct Dismisses $8B Putative Class Action by County Against MERS for Allegedly Unpaid Assignment Recording Fees

The U.S. District Court for the Western District of Missouri recently ruled that a county's putative class action lawsuit against MERS for failing to record assignments of mortgages, and thus to allegedly avoid paying county recording fees, failed to state a claim for relief, concluding that MERS had no legal duty to record under Missouri's recording statute. 

 

In so ruling, the court opined that Plaintiff's recourse was to approach the state legislature to amend the recording statute to require that assignments be recorded.  A copy of the opinion is attached.

 

Plaintiff, a county in Missouri, filed a putative class-action lawsuit against Mortgage Electronic Registration Systems, Inc. ("MERS") and its parent company along with various MERS members and shareholders ("collectively, "Defendants").   The complaint alleged that Defendants failed to record  assignments of deeds of trust and thus failed to pay applicable county recording fees to Plaintiff, which, according to Plaintiff, amounted to over $8 billion that would have been paid to Plaintiff but for the MERS system of tracking and transferring rights for residential mortgage loans. 

 

Asserting common law causes of action for: (1) Unjust Enrichment; (2) Civil Conspiracy; (3) Prima Facie Tort; (4) Declaratory Judgment; and (5) Injunctive Relief, Plaintiff pointed out that, although it was not suing to enforce any recording statute, Missouri's recording statutes "encourage" recording.   

 

Defendants moved to dismiss, arguing that:  (1) Plaintiff lacked standing; (2) there was no private right of action in Plaintiff's favor; (3) there was no duty under Missouri law to record deed of trust assignments; and (4) the complaint failed to state claims upon which relief could be granted.

 

Rejecting Defendants' argument that Plaintiff lacked standing because Plaintiff failed to allege an injury in fact, the District Court noted that Plaintiff alleged an injury to its financial interest in the form of lost recording fees and inaccurate county land records.

 

Turning to Defendants' other arguments for dismissal and noting that Plaintiff was not suing to enforce a recording statute, that there was no duty to record under Missouri law, and that Plaintiff was asserting common-law causes of action rather than claims based on conduct that violated any statute, the court also rejected Defendants' assertion that there was no private right of action to enforce alleged violations of recording statutes. 

 

Nevertheless, the court dismissed the complaint in its entirety for failure to state claims upon which relief could be granted.  In so doing, the court ruled that the claim for unjust enrichment failed in part because it was premised on a non-existent duty to record assignments, and Plaintiff failed to allege that it had conferred a benefit onto Defendants or that Defendants appreciated and retained the benefit under inequitable circumstances.  

 

Pointing out that Plaintiff never alleged that Defendants failed to pay the applicable recording fees for the initial deeds of trust that were recorded with the county, the court observed that Missouri recording statutes merely provide that "Security Instruments may be assigned . . ., and may be recorded in the office of the recorder of deed" and that not recording subsequent assignments was not done at the expense of the county.  See Fuller v. Mortgage Electronic Registration Systems, Inc., No. 3:11-CV-1153-J-20MCR, 2012 WL 3733869 (M.D. Fla. June 27, 2012); Plymouth County, Iowa ex rel. Raymond v. MERSCORP, Inc. No. 12-4022-MWB, 2012 WL  4903099  (N.D. Iowa Oct. 16, 2012).  Cf.  Montgomery County v. MERSCORP, No 11-cv-6968, 2012 WL 5199361 (E.D. Pa. Oct. 19, 2012)(upholding theory of unjust enrichment because Pennsylvania's recording statute required that all assignments be recorded).

 

The court also concluded that Plaintiff's civil conspiracy claim, lacking an underlying tort or wrongful act and also based on allegations of unjust enrichment likewise failed to state a claim.  See Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. 1996)(reasoning that "if tortious acts alleged as elements of a civil conspiracy claim fail to state a cause of action, then the conspiracy claim fails as well."). 

 

Similarly, the court ruled that Plaintiff's cause of action for prima facie tort failed because the complaint never alleged that Defendants acted maliciously, one of the requisite elements of a claim for prima facie tort.  As the court explained, Plaintiff's allegations merely demonstrated that Defendants sought to save money and time and that "[u]nder Missouri law, the mere awareness that one's conduct could harm the Plaintiff is not enough to establish an actual intent to injure; Plaintiff must prove that Defendant acted with 'specific, clear-cut express malicious intent to injure."  Tamko Roofing Products, Inc. v. Smith Engineering Co., 450 F.3d 822, 831 (8th Cir. 2006).

 

Finally, noting that declaratory judgment and injunctive relief are remedies and not independent causes of action, the court also dismissed those counts because the remedies were not attached to any viable claims, as the court had dismissed Plaintiff's common law claims.

 

Accordingly, the court granted Defendants' motion to dismiss and dismissed the complaint in its entirety for failure to state a claim upon which relief could be granted.

 

Ralph T. Wutscher
McGinnis 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@mtwllp.com
 

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FYI: 6th Cir Holds Foreclosure is "Debt Collection" Under FDCPA, Servicer Acquiring Rights Before Default Not "Debt Collector"

The U.S. Court of Appeals for the Sixth Circuit recently held that:  (1) consumer mortgage foreclosure is debt collection under the federal Fair Debt Collection Practices Act; and  (2)  a third-party servicer or subservicer that obtained the servicing rights before the loan was in default is not subject to the federal Fair Debt Collection Practices Act.

 

A copy of the opinion is available at:  http://www.ca6.uscourts.gov/opinions.pdf/13a0016p-06.pdf.

 

A borrower obtained a loan from a mortgage company to purchase property, securing the loan with a mortgage against the property.  Eventually, defendant servicer ("Servicer") became the mortgage servicer of the loan on the subject property. 

 

Borrower later died, and the loan went into default.  Servicer hired defendant law firm ("Law Firm") to foreclose on the property.  Law Firm prepared an assignment of the note and mortgage purporting to transfer all rights and interest in the note and mortgage to Servicer and commenced a foreclosure action in state court, alleging that Servicer owned the note and that the original note had been lost or destroyed.  

 

The foreclosure complaint sued the plaintiff here, as he had inherited the property under the borrower's will.   Plaintiff answered, asserted defenses, and disputed the debt with Law Firm, requesting verification of the mortgage debt.  Law Firm allegedly refused to verify the amount of the debt or to identify the true owner of the loan.   In response to the foreclosure action, therefore, Plaintiff argued that the assignment transferred no rights because another entity still owned the note and mortgage as a result of mortgage company's assignment shortly after loan origination.  Plaintiff further asserted that Servicer fraudulently concealed the true owner of the loan and that the original note was in fact not lost or destroyed.

 

Law Firm eventually moved for summary judgment in the foreclosure action, representing that Servicer owned the note.  The lower court granted the motion, but vacated the ruling and demanded that Law Firm produce the original note to the court.  Servicer later dismissed the foreclosure action.

 

Meanwhile, Plaintiff filed an action against Servicer, alleging that Bank and Law Firm had violated the federal Fair Debt Collection Practices Act and Ohio law by falsely making a number of assertions in the foreclosure action, including the assertion that Servicer owned the mortgage and note.  Plaintiff also alleged that Servicer and Law Firm had refused to verify the debt upon request. 

 

Servicer and Law Firm moved to dismiss.  Plaintiff then moved to amend his complaint four months after he allegedly discovered new evidence regarding the status of the loan when Servicer acquired the servicing rights, and one month after the magistrate issued his recommendation to grant the motion to dismiss.  Adopting the recommendations of the magistrate, the lower court granted the motion to dismiss, denied Plaintiff leave to amend because of delay in requesting such leave, and declined to exercise jurisdiction over the state-law claims.  Plaintiff appealed. 

 

The Sixth Circuit affirmed in part and reversed in part. 

 

As you may recall, the FDCPA provides for debt collector liability for certain improper conduct taken "in connection with the collection of any debt" and defines a "debt collector" as one who has his or her principal business purpose "the collection of any debts or who "regularly collects or attempts to collect, directly or indirectly, debts owed or due . . . another."  15 U.S.C. § 1692a(6).

 

The FDCPA further specifies that "[f]or the purpose of section 1692f(6) [concerning non-judicial repossession abuses], such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests."  Id.  Moreover, debt collection under the FDCPA can be performed through either "communication," "conduct," or "means."  See 15 U.S.C. §§ 1692c, 1692d, 1692e, 1692f.

 

In addition, one of the FDCPA's exceptions to the definition of "debt collector" provides that the term "debt collector" does not include any person attempting to collect "any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person."  15 U.S.C. § 1692a(6)(F)(iii). 

 

Also, the FDCPA defines "debt" as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes[.]"  15 U.S.C. § 1692a(5).

 

The Servicer here argued that it started servicing the loan before it was in default.  The Sixth Circuit rejected the Plaintiff's argument that the exception for loans not in default when acquired applies only to mortgage servicers who own the debt obligation they service.  The Sixth Circuit also rejected the Plaintiff's argument that the exception does not apply to subservicers, who service the underlying debt on behalf of the contractually obligated servicer.

Taking issue with Plaintiff's delay in requesting leave to amend long after discovery of "new" evidence purportedly indicating that Servicer was indeed a "debt collector," his "wait-and-see" attitude with regard to the magistrate's recommendation, and his waiting to seek to amend a full month after the magistrate recommended granting Servicer's motion to dismiss, the Court of Appeals concluded that Plaintiff had waited too long to amend and that the delay unduly prejudiced Servicer.  

 

Accordingly, the Sixth Circuit ruled that the lower court properly refused to grant Plaintiff leave to amend in response to the magistrate's recommendation.  See, e.g., Begala v. PNC Bank, Ohio, Nat'l Ass'n, 214 F.3d 776, 784 (6th Cir. 2000)(reasoning that "Plaintiffs were not entitled to an advisory opinion from the Court informing them of the deficiencies of the complaint and then an opportunity to cure those deficiencies.").

 

Next, in noting the confusion on the question whether mortgage foreclosure is "debt collection" under the FDCPA, and that the FDCPA does not define the term "debt collection," the Court expressed its disagreement with the view of the majority of district courts that mortgage foreclosure is not debt collection, because the majority view does not consider enforcement of a security interest to be debt collection.  The Sixth Circuit further declined to follow the view that if a money judgment is sought against the mortgagor in connection with a foreclosure, then, in that limited case, the attempt to collect money still owed on the note constitutes "debt collection."

 

Instead, following the "guideposts" offered by the FDCPA, the Sixth Circuit examined the FDCPA's definition of the term "debt," according to which, in this court's view, the determining factor was not whether an obligation was secured, but the purpose for which it was incurred.  Thus, the Court concluded that a home loan is a "debt," even if it is secured, as such a loan is usually obtained "primarily for personal, family, or household purposes[.]".  See, e.g., Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216-17, 1218(11th Cir. 2012. 

 

The Sixth Circuit also took into consideration various debt-collection activities, concluding that the use of legal proceedings, including mortgage foreclosure, to recover on a debt owed constitutes debt collection under the FDCPA.  In so doing, the Court noted that mortgage foreclosure, both judicial and nonjudicial, is undertaken in the Court's view for the sole purpose of obtaining payment on the underlying debt, and that this interpretation is reinforced by decisions from sister circuits, and by the FDCPA's provisions prohibiting debt collectors from using unfair or unconscionable means to "collect any debt" and requiring a debt collector bringing an action against a consumer "'to enforce an interest in real property securing the consumer's obligation'—e.g., a mortgage foreclosure action – to file in the judicial district where the property is located."  See 15 U.S.C. § § 1692(a)(1); 1692f; see also Wilson v. Draper & Goldberg, P.L.L.C, 443 F.3d 373 (4th Cir. 2006)(rejecting a foreclosing firm's assertion that once foreclosure proceedings began, plaintiff's debt ceased to be a "debt" under the FDCPA, and determining that the debt remained a "debt" because the foreclosure was simply an attempt to collect on that debt); Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227 (3d Cir. (2005)("Piper")(noting in part that "if a collector were able to avoid liability under the FDCPA simply by choosing to proceed in rem rather than in personam, it would undermine the purpose of the FDCPA).  Therefore, in the Sixth Circuit's view, foreclosure is debt collection under the FDCPA, because its purpose is the payment of money.

 

Finally, interpreting the definition of "debt collector" in the FDCPA as clarifying that even property repossession agencies, "whose business does not primarily involve communicating with debtors in an effort to secure payment of debts" are subject to the FDCPA, the Sixth Circuit concluded that only these particular entities have a role in the collection process that is strictly limited to enforcing security interests – i.e., repossessing or disabling property.  The Court thus determined that law firms engaged in mortgage foreclosures do not meet the narrow criteria pertaining to repossession agencies, because foreclosure law firms fall under the general definition of debt collectors if either their principal business is mortgage foreclosure or if they "regularly" perform mortgage foreclosures.

 

Accordingly, the Court reversed the portion of the lower court's judgment dismissing Plaintiff's FDCPA claims against Law Firm, ruling that the lower court erred in concluding that mortgage foreclosure was not debt collection.  However, the Sixth Circuit affirmed the portions of the judgment dismissing Plaintiff's FDCPA claims against Servicer and denying Plaintiff leave to amend.  The Court also vacated the dismissal of Plaintiff's state-law claims and remanded for further proceedings.  

 

Ralph T. Wutscher
McGinnis 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@mtwllp.com

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FYI: Cal App Ct Holds Atty-Client Privilege Applies to Title-Appointed Counsel, Provides Other Rulings Regarding Privilege

The California Court of Appeal, Fourth District, recently confirmed that a tripartite attorney-client relationship exists between a title insurer, its insured, and counsel retained by the title insurer to defend or prosecute claims in order to protect the interests of the insured, regardless of whether the insurer has a formal retainer agreement with the retained counsel.

 

The Court also ruled that:  (1) an insurer's reservation of rights did not destroy the tripartite attorney-client relationship;  (2) there is no meaningful distinction between retaining counsel to defend or to prosecute a claim on behalf of the insured;  (3) the title insurer did not waive the attorney-client privilege by failing to file on its own behalf an objection or a motion to quash; and  (4) documents covered by the attorney-client privilege are not subject to in camera review, unlike documents covered by the attorney work-product doctrine which are so subject to determine the level of protection to be conferred.

 

A copy of the opinion is available at:  http://www.courts.ca.gov/opinions/documents/G046829.PDF.

 

A borrower obtained a home mortgage refinancing loan, securing the loan with a first deed of trust in favor of the lending bank ("Bank").  Bank was the insured under a title insurance policy insuring the priority of Bank's deed of trust over any other lien or encumbrance.  Unbeknownst to Bank, however, the borrower had at about the same time obtained a business line of credit from another bank ("Defendant") that was partially secured by the same property that secured Bank's refinancing loan.  The deed of trust for the line of credit was recorded five days before the recordation of Bank's deed of trust.

 

Defendant eventually initiated foreclosure proceedings under the deed of trust securing the business line of credit and notified Bank of the default.  The property was later sold at a trustee's sale with Defendant being the successful bidder. 

 

Two days before the trustee's sale, Bank's temporary counsel, whose request to Defendant to postpone the sale was refused, tendered to the title insurer ("Title Insurer") a claim under the title insurance policy and filed a complaint for equitable subrogation and declaratory relief.  Title Insurer accepted the claim, but with a reservation of rights supposedly due to the fact that Bank had submitted its claim to Title Insurer so close to the date of the trustee's sale.

 

Several months later, Title Insurer retained counsel ("Counsel") to represent Bank in an  action against Defendant, which Counsel, seeking injunctive and declaratory relief, filed an amended complaint to include an additional cause of action for fraud.

 

Defendant served deposition subpoenas duces tecum on Title Insurer's parent company and others, seeking documents that included communications between Counsel and Title Insurer.  Bank moved to quash or modify the subpoenas duces tecum (the "Motions to Quash") to exclude communications between Counsel and Title Insurer on the ground that they were protected by the attorney-client privilege and/or were protected attorney work product.   Arguing that Counsel had been hired by Title Insurer and that a tripartite attorney-client relationship existed among Bank, Counsel, and Title Insurer, Bank included with its moving papers a declaration from Counsel that it had been retained by Title Insurer to represent Bank.  In opposition to the Motions to Quash, Defendant argued that the tripartite attorney-client relationship had been destroyed because Title Insurer was providing coverage to Bank under a reservation of rights. 

 

The lower court ("Respondent Court") denied the Motions to Quash, ruling that none of the documents listed on Bank's privilege log was privileged and ordering the documents to be produced to Defendant.  In addition, at the hearing on the Motions to Quash, the Respondent Court found no attorney-client relationship between Counsel and Title Insurer existed because Counsel was retained to prosecute the underlying action rather than to defend an existing one.

 

Bank and Title Insurer petitioned the Court of Appeal for writ of mandate or prohibition to challenge Respondent Court's order.   The Court of Appeal issued an order to show cause, in response to which Defendant filed an unverified "Return Brief" that did not respond to the allegations of the writ petition and which included neither an answer nor a demurrer to the writ petition in accordance with court rules.

 

The Court of Appeal granted the writ for mandate or prohibition, directing Respondent Court to vacate its order denying the Motions to Quash and to issue a new order granting them.

 

Turning first to Defendant's unverified return in response to the order to show cause, the Court of Appeal accepted as true the "well-pleaded and verified allegations of the writ petition," because Defendant failed to file a true return with a verified answer or demurrer to the allegations of the writ petition.  See Cal. Code Civ. Proc. § 1094.  Viewing Defendant's failure to submit a true return as an "integral and critical step in the procedure for determining the merit of a petition for extraordinary relief," the Court held that it had "no option but to accept the well-pleaded allegations of the writ petition as true."

 

Next, with respect to whether a tripartite attorney-client relationship existed among Title Insurer, Bank, and Counsel, the Court concluded that Title Insurer's retention of Counsel to represent Bank was sufficient to establish such a tripartite attorney-client relationship.  Viewing the relationship among the three entities as a "loose partnership, coalition or alliance directed toward a common goal, sharing a common purpose which lasts during the pendency of the claim or litigation against the insured," the Appellate Court concluded that there was no  need for a formal retainer agreement between  Title Insurer and Counsel to create the tripartite attorney-client relationship. "Retaining [Counsel] to represent [Bank] was enough in itself to establish the tripartite attorney-client relationship," the Court explained. 

 

Rejecting Defendant's assertion that the tripartite attorney-client relationship was destroyed when Title Insurer provided counsel for Bank under a reservation of rights, the court explained that a reservation of rights in itself does not create a disqualifying conflict requiring the appointment of independent counsel, so-called "Cumis" counsel.  Noting that the reason for the reservation of rights was Bank's submission of its claim to Title Insurer just two days prior to the trustee's sale, and that nothing in the record indicated Counsel was acting as Cumis counsel, the Appellate Court also pointed out that even if the reservation of rights did create a disqualifying conflict, the right to invoke the conflict belonged solely to Bank.  Moreover, the Court observed that even if Counsel were serving as Cumis counsel, any information disclosed by Bank or by Counsel to Title Insurer would not waive the privilege as to any other party.

 

Taking Respondent Court to task for making the "artificial distinction" between defending a title insurance action and prosecuting a title claim, the Appellate Court specifically noted that the standard title insurance policy granted Title Insurer the right to either defend an action or to initiate and prosecute a claim in order to protect the rights of an insured.   See Jarchow v. Transamerica Title Ins. Co., 48 Cal. App.3d 917, 924, 927, 941-42 (1975)(concluding that a "title insurer's duties to defend and to initiate a lawsuit are 'kindred duties' addressing 'the same fundamental concern'" to protect the integrity of the insured's title).   In so doing, the Court pointed out that in this case where the foreclosure sale had extinguished Bank's lien, the only means available to Title Insurer to protect Bank's interest was to prosecute an underlying action for equitable subrogation and declaratory relief.

 

The Appellate Court also rejected Defendant's argument that Title Insurer waived any right to object to production of privileged documents and information because Title Insurer failed to bring its own motion to quash the subpoenas.  Noting that only the holder of the attorney-client privilege and attorney work-product may assert the privilege, the Court reasoned that the "holder of the privilege" is defined by the client and that, as a result of the tripartite attorney-client privilege among Bank, Title Insurer, and Counsel, they were a "unitary whole" entitled as joint clients holding the privilege to assert the privilege on behalf of the others.  The Court thus ruled that it was unnecessary for Title Insurer to move to quash the subpoenas to prevent disclosure of privileged communications and attorney work product. 

 

Finally, with respect to Bank's assertion of both the attorney-client privilege and the attorney work product doctrine, the Appellate Court concluded that Bank had met its burden of establishing facts sufficient to support a prima facie claim of privilege.  In so doing, the Court distinguished between material protected by the attorney work product doctrine  -- and thus subject to in camera inspection for a determination as to whether absolute or qualified protection applies -- and communications covered by the attorney-client privilege.  The latter, the Court explained, was not subject to disclosure for in camera inspection.  See Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 715 (2009); Coito v. Superior Court, 54 Cal.4th 480, 502 (2012).  The Court thus ruled that certain documents listed in Bank's privilege log, being protected by the attorney-client privilege, were not subject to in camera inspection and that others might be subject to the attorney work product doctrine and potentially subject to in camera inspection for an analysis as to whether absolute or qualified work product protection applied.
 
Accordingly, concluding that under the circumstances in this case a review of Respondent Court's discovery ruling was warranted, the Court of Appeal vacated the lower court's order denying the Motions to Quash  The Appellate Court also ordered the lower court to grant Bank's Motions to Quash.

Ralph T. Wutscher
McGinnis 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@mtwllp.com

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