FYI: NJ Bankr Court Holds Foreclosure Barred by 6-yr Statute of Limitations for Post-Maturity-Date Foreclosures Under New Jersey Law

The U.S. Bankruptcy Court for the District of New Jersey recently held that a debtor was entitled to a “free house” because the mortgagee failed to re-file its foreclosure within the 6 years allowed for post-maturity-date foreclosures under New Jersey state law.

 

In so ruling, the Bankruptcy Court also held that the mortgage foreclosure statute of limitations period for post-maturity-date foreclosures at N.J.S.A. § 2A:50-56.1(a) applied retroactively, even though the statute became effective after the date of the mortgage and after the mortgagee’s original complaint to foreclose.

 

A copy of the opinion is attached.

 

On February 27, 2007, the borrower (“Debtor”) obtained a $520,000 loan secured by a mortgage to the subject property.  Debtor failed to make the July 1, 2007 mortgage payment and the loan was in continuous default since that time.

 

On December 14, 2007, the creditor (“Creditor”) filed a foreclosure complaint, but the case was dismissed without prejudice for lack of prosecution on July 5, 2013.  The Creditor did not obtain a final judgment of foreclosure nor took any action to de-accelerate the maturity date. 

 

On March 12, 2014, Debtor filed bankruptcy and proposed to sell the property under his chapter 13 plan.  In addition, Debtor also filed an adversary proceeding seeking to disallow the lender’s proof of claim and to void the mortgage lien.

 

Debtor initially argued that Creditor’s claim for action on the note accrued on June 1, 2007, when it declared default and accelerated the loan, which the Debtor argued was now time barred under the 6 year limitations period under N.J.S.A. § 12A:3-1118(a) applicable to actions on negotiable instruments.

 

In response, Creditor conceded that the 6 year statute of limitations for enforcement of the note had run, but argued that enforcement of the mortgage is subject to a 20-year statute of limitations recognized as a common law matter in Security Nat’l Partners Ltd. P’ship v. Mahler, 336 N.J. Super. 101, 107, cert den., 169 N.J. 607 (2001), and later codified at N.J.S.A. § 2A:50-56.1(c). 

 

Debtor then countered, arguing Creditor’s declaration of default and acceleration advanced the maturity date of the mortgage to June 1, 2007, such that under N.J.S.A. § 2A:50-56.1(a), which required the mortgagee to file a foreclosure action within 6 years of the maturity date of the mortgage, Creditor’s foreclosure was time barred as of June 1, 2013.

 

The issues before the Bankruptcy Court were whether acceleration of the note and mortgage advanced the maturity date such that N.J.S.A. § 2A:50-56.1(a) cut off Creditor’s cause of action, and whether this statute could be retroactively applied to this case.

 

As you may recall, N.J.S.A. § 2A:50-53 through -68, “Foreclosure of Residential Mortgages” (“Fair Foreclosure Act”), became effective on December 4, 1995 and was applicable to “to foreclosure actions commenced on or after that date.”  See N.J.S.A. § 2A:50-53, citing L. 1995, C. 244, § 19. 

 

The Bankruptcy Court began its analysis by looking to Mahler, which concluded that a foreclosure action was time-barred if not commenced within 20 years after the debtor’s default.  The court in Mahler reiterated the distinction between an action on the note and an action on the mortgage, and held that the lender’s time to sue on the note was governed by the 6 year limitations period in N.J.S.A. § 12A:3-118(a).  Mahler expressly rejected the borrower’s argument that the same 6 year statute governed suits on the mortgage.

 

However, the New Jersey Legislature enacted N.J.S.A. § 2A:50-56.1 in response to Mahler, and clarified the statute of limitations relative to foreclosure proceedings:

 

An action to foreclose a residential mortgage shall not be commenced following the earliest of:

 

a. Six years from the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, bond, or other obligation secured by the mortgage, whether the date is itself set forth or may be calculated from information contained in the mortgage or note, bond, or other obligation, except that if the date fixed for the making of the last payment or the maturity date has been extended by a written instrument, the action to foreclose shall not be commenced after six years from the extended date under the terms of the written instrument;

 

b. Thirty-six years from the date of recording of the mortgage, or, if the mortgage is not recorded, 36 years from the date of execution, so long as the mortgage itself does not provide for a period of repayment in excess of 30 years; or

 

c. Twenty years from the date on which the debtor defaulted, which default has not been cured, as to any of the obligations or covenants contained in the mortgage or in the note, bond, or other obligation secured by the mortgage, except that if the date to perform any of the obligations or covenants has been extended by a written instrument or payment on account has been made, the action to foreclose shall not be commenced after 20 years from the date on which the default or payment on account thereof occurred under the terms of the written instrument.

 

N.J.S.A. § 2A:50-56.1.

 

The Bankruptcy Court noted that N.J.S.A. § 2A:50-56.1 went into effect on August 6, 2009, and was silent as to its retroactive effect.  Moreover, the statute does not state whether the limitations period should be measured by the date of the mortgage, the date of the default, or the date on which the foreclosure action is filed. 

 

The Debtor argued that date should be measured from July 1, 2007, the date of the alleged default or, alternatively, “relate back” to the complaint filed on December 14, 2007 because the Creditor discharged the lis pendens and failed to appeal the July 5, 2013 dismissal.  The Bankruptcy Court agreed that the Creditor is now time barred under either effective date. 

 

Noting that neither the Debtor nor the Creditor had taken any measures under the note and mortgage, or under the Fair Foreclosure Act, to de-accelerate the debt, the Bankruptcy Court concluded that the Creditor was now time-barred from filing a foreclosure complaint by having failed to re-file its foreclosure within 6 years of the accelerated maturity date as required by N.J.S.A. § 2A:50-56.1(a).

 

In addition, and relying on the statute’s legislative history, the Bankruptcy Court held that N.J.S.A. § 2A:50-56.1 applied retroactively because the effectiveness of the statute would be greatly reduced otherwise.  According to the Bankruptcy Court, one of the stated purposes of the statute was to remove mortgages that constitute “clouds on title” which may render real property titles unmarketable and delay real estate transactions.

 

Accordingly, because Creditor’s proof of claim was not allowed under 11 U.S.C. § 502(b)(1) as the debt is unenforceable under applicable state law, the mortgage lien was therefore void under 11 U.S.C. § 506(d).  To the displeasure of the Bankruptcy Court, it held that the Debtor shall retain the subject property free of any claims of the Creditor.

 

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee 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@mwbllp.com

 

Admitted to practice law in Illinois

 

 

 

  

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FYI: 7th Cir Rejects Class Action Coupon Settlement, Addresses Various Defects w/ Class Counsel Fee Award and Named Plaintiff

The U.S. Court of Appeals for the Seventh Circuit recently reversed an order approving class settlement for alleged violation of the federal Fair and Accurate Credit Transactions Act (“FACTA”), 15 U.S.C. § 1681c(g), involving the printing of credit card expiration dates on consumers’ purchase receipts. 

 

Among other things, the Seventh Circuit held that the central consideration in determining the reasonableness of attorneys’ fees in a proposed settlement is what class counsel achieved for the members of the class, rather than how much effort class counsel invested in the litigation. 

 

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

 

This appeal is a consolidation of two class action filed under the under FACTA, 15 U.S.C. § 1681c(g), involving consumers who paid for products using credit or debit cards, and received electronically printed receipts that contained the card’s expiration date.

 

As you may recall, the FACTA provides that “no person that accepts credit cards or debt cards for the transaction of business shall print [electronically, as distinct from by handwriting or by an imprint or copy of the card] more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.”  15 U.S.C. §§ 1681c(g)(1), (2).  Statutory damages of between $100 and $1,000 may be awarded for a willful violation of the FACTA.  See 15 U.S.C. § 1681n(a)(1)(A).  A consumer harmed by the violation of the statute can obtain actual damages without proving willfulness.  See 15 U.S.C. § 1681o.

 

In the first case (“Case A”), the district court dismissed the suit with prejudice before certifying a class, and therefore there were no issues in that case concerning class action procedure.

 

In contrast, the second case (“Case B”) was centrally about class action procedure.  Before any substantive motions had been decided, the named plaintiffs agreed to a “coupon” settlement.  Each class member who responded positively to the notice of the proposed settlement would receive a $10 coupon that could be used at any of the defendant’s retail stores.  The class member could use it to buy an item costing $10 or less (but he would receive no change if the item cost less than $10), or as part payment for an item costing more.  The class member could stack up to three coupons and thus obtain a $30 item, or a $30 credit against a more expensive item. 

 

Of the approximately 16 million potential class members, 5 million were given notice, and 83,000 submitted claims for the coupons in response.  This figure amounts to a little more than one half of one percent of the entire class, assuming the entire class consisted of 16 million different consumers.

 

The agreed-upon settlement consisted of attorney fees of approximately $1 million, plus $830,000 worth of coupons at face value, and $2.2 million in administrative costs (including the cost of notice), for a total of about $4.1 million.  Class counsel argued that the attorneys’ amounted to approximately 25% of the total settlement and was therefore reasonable.

 

The district court approved the settlement, but various class members objected to the approval. 

 

On appeal, the Seventh Circuit flatly rejected the terms of the proposed settlement, holding that the value of the award to class members – the $10 coupons – was significantly overshadowed by the attorneys’ fees to class counsel.

 

First, the Seventh Circuit found that the district court erred in its calculation of the value of the award to class members. 

 

By including the roughly $2.2 million in administrative costs in calculating the division of spoils between class counsel and class members, the Court held, the district court reduced the value received from the settlement by the members of the class.  The Seventh Circuit acknowledged that administrative costs are part of settlement and benefit all parties, but explained that the district court should not have treated every penny of administrative expenses as cash in the pockets of class members.  In so doing, the district court eliminated the incentive of class counsel to economize on that expense and created an incentive to increase administrative expenses to make class counsel’s proposed fee appear smaller in relation to the total settlement.

   

Second, Seventh Circuit held that the district court miscalculated the reasonableness of the attorneys’ fees. 

 

As the Seventh Circuit explained, the ratio that is relevant to assessing the reasonableness of the attorneys’ fee is the ratio of:  (1) the fee to (2) the fee plus what the class members received.  In Case B, the class members received at most $830,000, which translated into a ratio of attorneys’ fees to the sum of those fees plus the face value of the coupons of 1 to 1.83.  That equated to a contingent fee of 55%.  The Seventh Circuit further explained that the ratio might be even higher because the $10 coupons were worth less than their face value since no change would be given, the coupons expired in six months, and many class members would simply not use them. 

 

Third, Seventh Circuit held that the district court erred by basing the fee award on the amount of time that class counsel reportedly spent on the case, and increasing that amount by 25% to reflect the risk of litigation.

 

The Seventh Circuit explained that reasonableness of a fee cannot be assessed in isolation from what it buys.  For instance, the Court noted, suppose class counsel worked hard and efficiently but only 1,000 claims had been filed in response to the notice of the proposed settlement, such that the total value of the class was only $10,000.  $1 million in attorneys’ fees under this example would not be appropriate even though a poor response to a notice is one of the risks involved in a class action. 

 

Instead, the Seventh Circuit held that the central consideration in determining the reasonableness of attorneys’ fees in a proposed settlement is what class counsel achieved for the members of the class, rather than how much effort class counsel invested in the litigation. 

 

In so ruling, the Seventh Circuit then turned to the coupon provisions of the Class Action Fairness Act, which states:

 

(a) Contingent Fees in Coupon Settlements.  If a proposed settlement in a class action provides for a recovery of coupons to a class member, the portion of any attorney’s fee awarded to class counsel that is attributable to the award of the coupons shall be based on the value to class members of the coupons that are redeemed.

(b) Other Attorney’s Fee Awards in Coupon Settlements.

(1) In general.  If a proposed settlement in a class action provides for a recovery of coupons to class members, and a portion of the recovery of the coupons is not used to determine the attorney’s fee to be paid to class counsel, any attorney’s fee award shall be based upon the amount of time class counsel reasonably expended working on the action.

 

See 28 U.S.C. §§ 1712(a) and (b)(1).

 

As explained by the Seventh Circuit, the statute is poorly drafted because a literal reading of “value to class members of the coupons that are redeemed” would prevent class counsel from being paid in full until the settlement had been fully implemented.  If a settlement cannot be wound up until the redemption period expired, district courts would be pressured to approve shorter redemption periods and thus reducing the value of the coupons. 

 

According to the Seventh Circuit, there is no need for such a rigid rule.  In some cases, the optimal solution may be part payment to class members and class counsel up front, with final payment when the settlement is wound up.  However, the Court held, the district court erred by attempting to determine the ultimate value of the settlement before the redemption period ended without even an estimate by a qualified expert of what the ultimate value would likely be.

 

The Seventh Circuit also noted another problem with coupon settlements under CAFA -- i.e., although subsection (a) is mandatory, and under it the attorneys’ fee in a coupon settlement must be based on the coupons’ redemption value, but subsection (b)(1) provides an alternative method of determining attorneys’ fees based on the lodestar method of calculating fee awards, i.e., the amount of time class counsel reasonably expended working on the action.

 

Relying on In re HP Inkjet Printer Litigation, 716 F.3d 1173 (9th Cir. 2013), which held that subsection (a) must be used where the settlement provides coupons and no cash benefits to class members, the Seventh Circuit found that the district court failed to recognize the amendment to CAFA with respect to coupon settlements.

 

Fourth, the Seventh Circuit questioned the inclusion of a “clear-sailing clause” in the proposed settlement.

 

A clear sailing clause is where the defendant agrees not to contest class counsel’s request for attorneys’ fees.  Because defendant’s interest is to reduce the overall cost of the settlement, the defendant will not agree to a clear-sailing clause without compensation – namely a reduction in the part of the settlement that goes to the class members, as that is the only reduction class counsel are likely to consider.  Thus, the Seventh Circuit concluded that such clauses must be subject to intense scrutiny because of the danger of collusion in class actions between class counsel and the defendant, all to the detriment of the class members. 

 

Fifth, the Seventh Circuit also pointed to a procedural defect in requesting attorneys’ fees in this case.

 

As you may recall, Rule 23(h) of the civil rules requires that a claim for attorneys’ fees in a class action be made by motion and notice served on all parties.  See Fed. R. Civ. P. 23(h).  In the present case, class counsel did not file the attorneys’ fee motion until after the deadline for objections to the settlement had expired.  As the Seventh Circuit explained, the objectors knew that class counsel were likely to ask for $1 million in attorneys’ fees, but they were handicapped in objection because the details of class counsel’s hours and expenses were submitted later, with the fee motion, and therefore they did not have the information they needed to justify their objection.

 

Sixth, the Seventh Circuit noted a final concern relating to the lead named plaintiff.

 

The lead named plaintiff was employed by a law firm for which the principal class counsel once worked.  The Seventh Circuit explained that there should be a genuine arm’s-length relationship between class counsel and the named plaintiffs, and reminded the class action bar of the importance of insisting that the named plaintiffs be genuine fiduciaries to the class, uninfluenced by any family ties or friendships.

 

Finally, the Seventh Circuit turned to Case A, which pivots on the meaning of “willfully” in the FACTA. 

 

In Case B, the willfulness issues was straightforward because the company had been found in an earlier lawsuit to have left the expiration date on receipts in violation of a parallel state statute.  See Ferron v. RadioShack Corp, 886 N.E.2d 286 (Ohio App. 2008).  The Seventh Circuit therefore determined that the company had to know that there was a risk of error because the identical risk had materialized previously, and its failure to take any precautions against it was indicative of willful violation.

 

In contrast, the company in Case A did not willfully violate the FACTA because there was no previous violation to alert the company of a risk of error.  Therefore, the Seventh Circuit concluded that any violation by the company would not have been willful.

 

Accordingly, the Seventh Circuit reversed the judgment approving the settlement in Case B and remanded the case for further proceedings, and affirmed the judgment in favor the defendant in Case A.

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee 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@mwbllp.com

 

Admitted to practice law in Illinois

 

 

 

 

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FYI: Cal App Ct Holds Doctrine of "Substantial Compliance" Did Not Apply to Specific Disclosure Required Under State Law

The California Court of Appeal, Fourth District, recently reversed the dismissal of an alleged California Vehicle Licensing Act (“CVLA”) violation for supposed failure to give a statutory notice in the exact language prescribed by the Act, holding that the doctrine of substantial compliance does not apply to technical violations of the CVLA.

 

A copy of this opinion is available at:  http://www.courts.ca.gov/opinions/documents/D063937.PDF.

 

As you may recall, California’s Vehicle Licensing Act (the “VLA”) requires that lessors of vehicles which have been repossessed give the lessees a notice that contains the following statement:

 

“The amount you owe for early termination will be no more than the difference between the Gross Early Termination Amount stated above and (1) the appraised value of the vehicle or (2) if there is no appraisal, either the price received for the vehicle upon disposition or a greater amount established by the lessor or the lease contract. 

 

You have the right to get a professional appraisal to establish the value of the vehicle for the purpose of figuring how much you owe on the lease.  If you want an appraisal, you will have to arrange for it to be completed at least three days before the scheduled sale date of the vehicle.  The appraiser has to be an independent person acceptable to the holder of the lease.  You will have to pay for the appraiser.  The appraised value will be considered final and binding on you and the holder of the lease.”  

 

California Civil Code § 2987(d)(2)(B).

 

In 2011, Lessor repossessed an automobile from Lessee.  Following the repossession, Lessor sent Lessee a notice that attempted to comply with the requirements of Civil Code section 2987, subdivision (d)(2)(B).  However, Lessor’s notice deleted the phrase “to establish the value of the vehicle for the purpose of figuring how much you owe on the lease.”

 

Lessee filed a putative class action complaint against Lessor, based on this omission.  Lessee alleged Lessor’s collection or attempts to collect the deficiencies violated the Rosenthal Act and the UCL and had damaged her and other class members.

 

Lessor demurred to the complaint and argued that its notice substantially complied with the requirements of section 2987, subdivision (d)(2), and, therefore, it was authorized to collect deficiencies from lessees to whom it had sent the notice.  The trial court applied the doctrine of substantial compliance and determined that Lessor was not liable for a violation of the CVLA.  Accordingly, the trial court sustained Lessor’s demurrer and entered an order of dismissal with prejudice.

 

As you may recall, substantial compliance “means actual compliance in respect to the substance essential to every reasonable objective of the statute.  Where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance.  Substance prevails over form.  When the plaintiff embarks [on a course of substantial compliance], every reasonable objective of [the statute at issue] has been satisfied.” (Cal- Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 668.)

 

The dismissal was entered on January 10, 2013.  On February 26, 2013, at the request of Lessor, the trial court set aside the January 10, 2013 dismissal and entered a judgment of dismissal with costs on February 26, 2013.  On March 19, 2013, Lessor served Lessee with notice of entry of the order setting aside the January 10, 2013 dismissal and entering judgment of dismissal with costs.  On May 15, 2013, Lessee filed a notice of appeal from the February 26, 2013 judgment.

 

On appeal, Lessor initially argued that Lessee’s notice of appeal was untimely because it was filed more than 60 days after the trial court’s January 10, 2013 order of dismissal.

 

Generally, a notice of appeal from a judgment must be filed on or before the earliest of: (1) 60 days after the trial court's mailing of the notice of entry of judgment, (2) 60 days after a party's service of the notice of entry of judgment, or (3) 180 days after the entry of judgment.  (Cal. Rules of Court, rule 8.104(a)(1)-(3).)  When a judgment is vacated and then reinstated, the time to appeal the judgment begins to run after reinstatement.  (Lantz v. Vai (1926) 199 Cal. 190, 193; Matera v. McLeod (2006) 145 Cal.App.4th 44, 58.)

 

The Court of Appeal found that the appeal was timely filed because notice of appeal was filed within sixty days of the February 26, 2013 judgment of dismissal.  The Court of Appeal concluded that the trial court had vacated the January 10, 2013 order of dismissal based upon the plain terms of its ruling:  “It is hereby ordered that: [¶] 1. The Order of Dismissal entered on or about January 9, 2013 be set aside; [¶] 2. A Judgment of Dismissal be entered in its place; [¶] 3. Defendant [Lessor] be awarded costs in the amount of $517.75.”

 

The Court of Appeal then reversed the trial court’s judgment of dismissal and found that the doctrine of substantial compliance does not apply to the CVLA. 

 

The Court of Appeal noted that the CVLA only excused noncompliance under certain circumstances.  Specifically, under Section 2987, subdivision (d)(3), a lessee has no liability to a lessor for any deficiency if the lessor has not complied with the notice requirements of section 2987, subdivision (d), except if noncompliance involves a bona fide error in the calculations required by subdivision (d)(2)(B).  A deficiency is enforceable, notwithstanding an erroneous calculation, if the lessee receives or gives notice of the erroneous calculations before the vehicle is sold.  (Civil Code § 2987(d)(3)(A)-(D).)

 

The Court of Appeal applied the longstanding statutory interpretation principle “expressio unius exclusius alterius est” (to express one thing is to exclude others).  With respect to the CVLA, the Court of Appeal determined that the express exception to strict enforcement of one part of the CVLA gives rise to the inference that the Legislature intended that the remaining requirements of the CVLA to be strictly enforced.

 

Thus, the Court of Appeal found that the doctrine of substantial compliance did not apply to the CVLA as a matter of statutory interpretation.

 

The Court of Appeal also held that practical considerations weighed against applying the doctrine of substantial compliance to the VLA.  The Court reasoned that as a consequence of employing prescribed language, the Legislature relieved all vehicle lessors of the burden and risk of determining what is an appropriate notice to lessees of their appraisal rights.  In this context, application of the doctrine of substantial compliance would shift that burden and the risk of interpretative error to California courts confronted with a similar abbreviated notice.  The Court saw no need to take on that burden or risk or to create precedent for imposing them on other courts throughout the state.

 

The Court of Appeal also held that the consequence to lessors of strict enforcement of the CVLA was not unfair and provided no undue benefit to lessees. The failure to provide notice simply prevents lessors who have repossessed and sold vehicles from also recovering a deficiency from lessees.  (See Civil Code § 2987(d)(3).)

 

The Court of Appeal did not address whether the violation of the CVLA could support liability under either the Rosenthal Act or the Unfair Competition Law. 

 

However, the Court of Appeal did note that the Rosenthal Act limits the remedies available to consumers.  In particular, section 1788.30 states in pertinent part: "(a) Any debt collector who violates this title with respect to any debtor shall be liable to that debtor only in an individual action, and his liability therein to that debtor shall be in an amount equal to the sum of any actual damages sustained by the debtor as a result of the violation.”

 

The Court of Appeal also noted that under the Unfair Competition Law a private plaintiff's remedies are “generally limited to injunctive relief and restitution.”  Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179; see Bus. & Prof. Code, §§ 17203, 17206.

 

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee 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@mwbllp.com

 

Admitted to practice law in Illinois

 

 

 

 

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