FYI: Fla App Ct (5th DCA) Holds No Private Right of Action for Florida "Anti-Check Cashing Fee" Statute

The Court of Appeals of the State of Florida, Fifth District, recently affirmed the dismissal of a check payee's claims against the drawee bank for charging a fee to cash the check in person, holding that while section 655.85, Florida Statutes, prohibits the bank from charging such a fee, it does not create a private cause of action. 

 

However, the Court also held that federal law did not preempt the state "anti-check cashing fee" statute, even as applied to an out-of-state insured state bank.

 

A copy of the opinion is available at: http://www.5dca.org/Opinions/Opin2015/062915/5D14-3182.op.pdf

 

The payee of a check sued the drawee bank for imposing a service charge when he presented the check in person.

 

In a prior ruling from 2012, the Fifth District held that section 655.85, Florida Statutes, prohibits a bank from charging such a fee, and that the statute was not preempted by federal law, 12 U.S.C. § 1831a(j)(1).

 

In the case at bar, the trial court concluded that 12 U.S.C. § 1831a(j)(2) preempts section 655.85, Florida Statutes, and that the Florida state statute does not provide a private cause of action.

 

On appeal, the Fifth District disagreed with the trial court on the issue of federal preemption, reasoning that 12 U.S.C. § 1831a(j)(2) bore no relation to the state statute at issue, 655.85, Florida Statutes, because the state statute has nothing to do with the acquisition or retention of investments, but simply requires that checks be settled at "par" or face value.

 

As you may recall, 12 U.S.C. § 1831a(j)(2)  provides:

 

§ 1831a. Activities of insured State banks

. . . .

(j) Activities of branches of out-of-State banks

. . . .

(2) Activities of branches

An insured State bank that establishes a branch in a host State may conduct any activity at such branch that is permissible under the laws of the home State of such bank, to the extent such activity is permissible either for a bank chartered by the host State (subject to the restrictions in this section) or for a branch in the host State of an out-of-State national bank.

 

The Appellate Court noted that "activity" is defined as "includ[ing] acquiring or retaining any investment."  12 U.S.C. § 1831a(h).  Therefore, the Fifth District reasoned, "states may not lessen restrictions on 'activities' placed on insured state banks under the federal statutory scheme but they are not preempted from imposing more stringent ones."  The Appellate Court also reasoned that "[w]hen the statutory definition of 'activity' is used to interpret § 1831a(j)(2), it is clear that this federal statute has nothing to do with the state statute at issue here. Section 655.85 does not pertain to the acquisition or retention of an investment. It simply mandates that checks be settled at 'par,' meaning face value."

 

The Appellate Court, however, agreed with the trial court that section 655.85, Florida Statutes, does not create a private cause of action, reasoning that not only does the statute not expressly create a private cause of action, but that it could discern no intent on the part of the legislature from which it could judicially imply such a right of action.

 

The Appellate Court next rejected the payee's claim that the bank was liable under sections 673.4131 and 673.4081 of Florida's version of the Uniform Commercial Code ("U.C.C.") because it varied the terms of the check by redeeming it for less than face value.

 

The Fifth District reasoned that, even though the bank varied the terms, the U.C.C. does not provide a remedy. This is because under section 673.4081, the drawee bank is not liable on a check until it "accepts" the check. The drawee bank can either accept the check as presented or it can accept the check and "vary" its terms under section 673.4101. If the holder of the check disagrees with the varied terms, he can either acquiesce or treat the conditional acceptance as "dishonored" and revoke acceptance without incurring any liability.

 

The Appellate Court held that, because the payee accepted the varied terms, the bank's sole obligation was to pay the draft as varied.

 

The Fifth District next rejected without discussion the payee's claim under the Florida Consumer Collection Practices Act, and also rejected the payee's common law claim for unjust enrichment.

 

The Appellate Court reasoned that:  (1) the check was an express contract between the maker and payee, and the existence of an express contract bars a claim for unjust enrichment; (2) by accepting the bank's varied terms, i.e., payment minus the service charge, the bank was absolved of liability under the U.C.C. and, therefore, for any unjust enrichment claim as well; and (3) because the bank promptly paid the check in exchange for the service charge, the bank was unjustly enriched.

 

 

 

 

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

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FYI: Fla App Ct (3rd Dist) Allows Common Law Deficiency Action After Completion of Foreclosure

The Court of Appeals for the Third District of the State of Florida recently held that the trial court had subject matter jurisdiction to hear a common law action to recover a deficiency judgment after an earlier residential mortgage foreclosure action in the same court was already completed.

 

The Court reasoned that the applicable statute expressly provided for such a common law action, and although the foreclosure judgment reserved jurisdiction to adjudicate any claim seeking a deficiency, it neither granted nor denied it.

 

A copy of the opinion is available at: http://www.3dca.flcourts.org/opinions/3D15-0221.pdf

 

A mortgage loan servicer obtained a final judgment of foreclosure, which retained jurisdiction as to any claim for a deficiency.  After the foreclosure sale, the judgment and note were assigned to the plaintiff debt buying company, which filed a separate common law action in the same court seeking a deficiency judgment.

 

The borrower failed to respond and a clerk's default was entered. Thereafter, the borrower filed a motion to dismiss, arguing that the trial court lacked subject matter jurisdiction over the deficiency action because: (a) the prior mortgagee sought deficiency relief in its foreclosure complaint; and (ii) in the foreclosure judgment, the trial court expressly retained jurisdiction to adjudicate the deficiency.

 

The trial court rejected the borrower's argument and entered a final default judgment in favor of the plaintiff, from which the borrower appealed.

 

On appeal, the Third District turned to section 702.06, Florida Statutes, which governs deficiency claims in foreclosure actions,  The relevant portion of this statute states that "[t]he complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment."

 

Rejecting the language in two court rulings relied upon by the borrower as dicta, the Court reasoned that under Florida Supreme Court precedent "[w]hen the clear and unambiguous language of a statue commands one result, as here, while dicta from case decisions might suggest a different result, [the Court] must apply the statute so as to give effect to legislative intent," which is determined by first looking to the plain language of the statute.

 

The Court concluded that section 702.06 as drafted was clearly written, and because the foreclosure court had neither granted nor declined to grant a deficiency judgment, "a plaintiff may pursue deficiency relief in a separate action."  Accordingly, the Court held that the trial court had jurisdiction over the plaintiff's deficiency claim, and the trial court's judgment was affirmed.

 

 

 

 

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

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

 

Admitted to practice law in Illinois

 

 

 

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FYI: MD Fla Disagrees With and Distinguishes Beauvais in Florida Foreclosure Statute of Limitations Case

The U.S. District Court for the Middle District of Florida recently confirmed that Florida's statute of limitations did not bar a mortgagee from filing a new foreclosure action based on non-payment or other kinds of defaults within the past five years, even where the prior foreclosure action was dismissed without prejudice and acceleration of the mortgage occurred more than five years prior to the second foreclosure action.

 

In so ruling, the Court dismissed an amended complaint for declaratory judgment seeking to invalidate a mortgage.

 

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

 

A property owner sought a declaratory judgment that Florida's statute of limitations bars a mortgagee from foreclosing on real property owned by the trust.  The subject property was originally purchased by two borrowers, who later failed to make their mortgage payments.

 

The mortgagee accelerated the mortgage loan, and filed a foreclosure action.  The borrowers filed for bankruptcy and received a discharge of their debts.  Thereafter, the first foreclosure action was dismissed without prejudice and the mortgage was assigned. 

 

After one of the borrowers died, the remaining borrower quitclaimed her interest in the subject property to a trust's personal representative.  The mortgagee then took possession of the property and prevented the trust's personal representative from accessing and occupying it.

 

The trust's personal representative filed suit against the mortgagee, relying on Deutsche Bank Trust Co., Americas v. Beauvais, No. 3D14-575, 40 Fla. L. Weekly D 1 (Fla. 3d DCA, Dec. 17, 2014), to argue that the Florida 5-year statute of limitations period began to run as to the full amount owed on the mortgage on the date of the first acceleration, and that the mortgagee was therefore barred from foreclosing. 

 

As you may recall, in Beauvais, Florida's Third District Court of Appeal held that a second foreclosure action was barred by the statute of limitations when filed after a prior foreclosure action was dismissed without prejudice and more than five years after the date of acceleration. 

 

The U.S. District Court for the Middle District of Florida declined to follow Beauvais, holding that the Beauvais decision was "contrary to the overwhelming weight of authority, which holds that 'even where a mortgagee initiates a foreclosure action and invokes its right of acceleration, if the mortgagee's foreclosure action is unsuccessful for whatever reason, the mortgagee still has the right to file later foreclosure actions . . . so long as they are based on separate defaults.'"

 

In addition, the Court distinguished Beauvais, which prevents re-filing of a foreclosure action as a result of non-payment defaults only, and not other kinds of defaults.  Here, the trust's personal representative sought a declaratory judgment that the mortgage could not foreclose for any reason and also sought possession, occupation, and use of the subject property. 

 

Accordingly, the U.S. District Court for the Middle District of Florida dismissed the amended complaint with prejudice.

 

 

 

 

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

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

 

Admitted to practice law in Illinois

 

 

 

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FYI: Fla App Ct (2nd DCA) Allows Borrowers' Motion for Atty's Fees Filed Over 30 Days After Conditional Notice of Voluntary Dismissal

The Second District Court of Appeals of the State of Florida recently affirmed an award of attorney fees and costs to two borrowers, even though the borrowers moved for fees and costs more than thirty days after the mortgagee filed a notice of voluntary dismissal that was expressly made conditional upon the parties "agreeing to pay their own attorneys' fees and costs."

In so ruling, the Appellate Court confirmed that a conditional notice of voluntarily dismissal was ineffective to commence the thirty day period within which to move for attorney fees and costs under Florida law. 

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

A mortgagee initiated a foreclosure action, and subsequently filed and served a notice of voluntary dismissal expressly made conditional upon the parties "agreeing to pay their own attorneys' fees and costs."  The borrowers did not stipulate to waive attorney fees allowed under Florida law.

Thereafter, the borrowers filed a motion for final dismissal within thirty days of the mortgage's conditional notice, to which the mortgagee did not respond, and the trial court dismissed the foreclosure action at hearing ("Dismissal").

The borrowers then moved for attorney fees and costs within thirty days of the dismissal, which the trial court granted, holding that the mortgagee's conditional notice was ineffective to commence the thirty day period allowed under Florida law to file a motion for attorney's fees because the mortgagee's notice was conditional. 

The mortgagee appealed the trial court's final judgment awarding attorney fees and costs.

The Appellate Court held the mortgagee had no legal right to compel the trial court to begin the thirty day period to move for fees and costs required by Fla. R. Civ. P. 1.525, because the mortgagee's notice of dismissal was conditioned on a waiver of fees and costs, which did not occur.

As you may recall, the general rule in Florid is that a party seeking to tax attorney fees or costs must serve a motion no later than thirty days after filing of the judgment or service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

The mortgagee relied Tunison v. Bank of America, N.A., 144 So. 3d 588, 592 (Fla. 2d DCA 2014), which held that the waiver of attorney fees in a conditional voluntary dismissal was not binding on the defendant.

The Appellate Court distinguished the Tunison case, however, as the timeliness of the borrower's motion for fees and costs, and whether a conditional notice could permit a clerk to close a file, were not at issue in Tunison.

The Appellate Court also rejected the mortgagee's argument that the conditional language was a scrivener's error, concluding that the thirty-day period did not commence because the effective date of the dismissal could not be determined by the notice and the parties never reached agreement on the stated condition.

Accordingly, the Appellate Court affirmed the final judgment awarding attorney fees and costs to the mortgagors.

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

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

Admitted to practice law in Illinois

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FYI: Ill App Ct Reverses Trial Court Ruling on Foreclosure Standing, Including Denial of Borrowers' Discovery

The Illinois Appellate Court, First District, recently reversed a trial court's ruling that lack of standing in a mortgage foreclosure case was not an affirmative defense.  The Court further remanded the case to allow the borrowers to take discovery, which the Court held was improperly denied by the trial judge.

 

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

 

A mortgagee filed a foreclosure action, alleging that the borrowers failed to make payments when due.  In response, the borrowers filed an answer, which included affirmative defenses of alleged lack of standing and alleged lack of capacity to sue. 

 

At the hearing on the mortgagee's motion to strike the borrowers' affirmative defenses, the trial judge stated that "a claim or assertion that plaintiff cannot maintain a cause of action is not an affirmative defense under any definition of affirmative defense." The judge further stated that "[a challenge to standing] doesn't say this plaintiff has a cause of action, but [the defendant] can avoid the effect of that cause of action by some other affirmative matter.  That's what an affirmative defense does."  The trial judge continued, "what you're saying is this plaintiff doesn't have a right to sue.  That's a basis for dismissal, not an assertion of a defense." 

 

The trial judge reasoned that lack of standing might be an "affirmative matter," but that "it just simply is not an affirmative defense."  Accordingly, the trial judge struck the defenses from the borrowers' answer with prejudice and did not grant leave to replead. 

 

Shortly thereafter, the mortgagee filed a motion for summary judgment which was granted, and an order of foreclosure and an order of possession were entered in favor of the mortgagee.  The borrowers appealed.

 

On appeal, the Appellate Court noted that the Illinois Supreme Court has made clear that a challenge to standing in a civil case is an affirmative defense.  Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988).  Over the past two years, the Appellate Court noted that it has held on at least six occasions that the assertion of lack of standing in a foreclosure action is an affirmative defense that not only can be raised in an answer, but must be, or else is waived.  See e.g., Aurora Bank FSB v. Perry, 2015 IL App. (3d) 130673, ¶ 18.

 

Thus, the Appellate Court held that the trial judge's ruling was inconsistent with established, binding precedent, and that the trial judge erred by striking the borrowers' affirmative defense for lack of standing as a matter of law.

 

Even though striking the affirmative defense was clearly erroneous, the Appellate Court noted it still had to determine whether the trial judge erred in granting summary judgment in the mortgagee's favor.  The Court noted that it is mortgagee's burden in a mortgage foreclosure case to make out a prima facie case that it is entitled to enforce the underlying instrument.  However, the foreclosure defendant has the opportunity to rebut that showing. 

 

Here, the Appellate Court held that the borrowers were denied that rebuttal opportunity, as they never had an opportunity to explore their defenses in discovery. As the Court put it, "the events leading up to the trial court's ruling essentially amounted to summary judgment by ambush."

 

Although the trial judge's decision to not let the borrowers pursue any claim for lack of standing beyond the pleading stage was an error of law, the more concerning issue for the Appellate Court was that the trial judge then prevented the borrowers from taking any discovery on their defenses, or getting a clear evidence of the mortgagee's right to enforce the note.

 

Specifically, mortgagee's motion for summary judgment was supported by the affidavit of a vice president for loan documentation ("Affiant"). In her affidavit, Affiant asserted that she had reviewed various records that supported her averments.  However, none of the records were attached to her affidavit.

 

As the Court noted, Ill. S. Ct. R. 191(a) requires that affidavits submitted in support of motions for summary judgment "shall have attached thereto sworn or certified copies of all documents upon which the affiant relies[,]" and requires that Affiant identify and certify the records forming the basis of the attestations.

 

The Appellate Court further noted that, despite the borrowers' attempts to obtain the records relied upon by Affiant, none of the records were provided prior to the trial judge when ruling on the mortgagee's motion for summary judgment.  Moreover, after granting the mortgagee's motion for summary judgment, the trial judge then granted the mortgagee's motion to strike the borrowers' outstanding discovery requests and notice of deposition of Affiant. 

 

According to the Appellate Court, the cumulative effect of the affirmative defense being improperly stricken, the denial of the borrowers' requests for discovery, and the mortgagee's failure to produce the required evidentiary records, resulted in the borrowers being denied the opportunity to defend. 

 

As the Appellate Court reasoned, to uphold the trial court's action would require a conclusion that supplying a note indorsed in blank is sufficient to defeat any fathomable defense that a borrower may have to standing, and that no set of facts could entitle a borrower to any relief under those circumstance.  Supplying a note in blank, however, is only prima facie evidence of ownership that could potentially be rebutted.

 

Accordingly, the Appellate Court reversed the trial court's judgment and held that, on remand, the borrowers were entitled to take discovery on their challenge to the mortgagee's standing and to replead their affirmative defense if necessary.

 

 

 

 

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

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

 

Admitted to practice law in Illinois

 

 

 

California   |   Florida   |   Illinois   |   Indiana   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC

 

 

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FYI: CFPB Consent Orders Against Chase, Encore Capital, PRA Group || Symposium on Nov 12, 2015 in Burbank, CA

Three consent orders issued over the past few months present clear challenges for the debt buying industry, creditors and for those that provide services to them both.

 

When read together, the three consent orders have going forward implications for originators, servicers, and debt buyers. The agreements likely contain expectations the Consumer Financial Protection Bureau has for mortgage loans, motor vehicle, student loan and other types of consumer debt.

 

The first, between the CFPB (along with 47 states and the District of Columbia) and Chase Bank USA, N.A., significantly altered the bank's debt collection activities.

 

More specifically, and among other things, the Chase Bank Consent Order (copy available here) requires Chase to do the following:

 

    - Stop selling loans and other debts that:  (1) were discharged in Chapter 7 bankruptcy;  (2) are subject to a pending ID theft claim by the consumer; (3) are owed by a deceased consumer; (4) were settled; (5) for which Chase does not have significant and specific types of documentation;  (6) subject to a pending dispute or litigation with the consumer; (7) are subject to a performing loan modification;  (8) for which the consumer is a Servicemember;  (9) are more than 3 years in default; and/or (10) for which Chase determined the consumer was a minor when the loan was extended.

    - Provide extensive information and information to the consumer, before selling any loans or other debts

    - Following any sale, make specific documentation regarding the loans or other debts available – without charge - to the consumer

    - Include specific terms in its purchase and sale agreements prohibiting collection, unless Chase provided specific documentation regarding the loan or other debt

    - Include specific terms in its purchase and sale agreements:  (1) prohibiting resale of the loan or other debt;  and (2) prohibiting the buyer from attesting to Chase's records, except as to proofs of claim in bankruptcy

    - Make specific documentation regarding the loans or other debts available to all purchasers for at least 3 years following the sale

    - Provide specific content in Chase's affidavits regarding loans and other debts, and engage in extensive training of its affiants

    - Provide specific content in Chase's collection lawsuit complaints, correction of any incorrect statements in those lawsuits, and extensive documentation when obtaining judgments

 

Then in September, the CFPB obtained two more consent orders with debt buying companies Encore Capital (copy available here) and PRA Group (copy available here). Like the Chase consent order, these consent order contained agreements to change certain of the companies' debt collection practices.

 

More specifically, the Encore Capital and PRA Group consent orders require that the companies:

 

    - Stop collecting any loan or other debt, under various circumstances including when the consumer disputes the debt orally or in writing, unless the company can provide extensive and specific substantiation of the debt and the amount owed

    - Stop reselling loans and other debts, except to the entity that sold the debt to the companies, and in other specific circumstances

    - Provide specific content and documentation in connection with their affidavits

    - Inform consumers, all of its attorneys and other collectors, and other third parties of the fact that the loan or other debt is disputed

 

At a November 12, 2015 Symposium in Burbank, CA, representatives from PRA Group, Encore Capital and DBA International will share their thoughts on the CFPB supervisory and enforcement processes and give their thoughts on what others should be looking at right now.

 

In addition, representatives from the California Bankers Association and the California Collectors Association will also be there to discuss recent developments in California state law impacting originators, purchasers and debt collectors. While the bill to increase the maximum homestead exemption did not pass, the wage garnishment (SB 501) and default judgment (SB 641) bills passed by the legislature were signed into law.

 

The Symposium will be held as follows:

 

November 12, 2015

10 am-4:30 p.m.

Burbank, CA

Register here

 

 

Among the topics to be examined are:

 

•           Purchase terms and conditions

•           Data accuracy in both purchases and post-purchase operations

•           Document requirements, pre-litigation

•           Addressing oral disputes

•           Practices for telephone communications and, in particular, calls to cellular phones

•           Civil lawsuits for debt collection

•           Handling outside collectors and debt collection law firms

•           Affidavits used in collection lawsuits

•           Collecting debt potentially subject to an expired limitations period

 

We will also examine new laws in Maine and Illinois impacting debt purchasing and those who provide debt collection services. Finally, we will turn our attention to pending legislation, some of it very significant, and the trends we've seen in state legislation over the past few months.

 

This is a rare opportunity to discuss what is likely a supervision and enforcement framework we expect to see repeated throughout the consumer financial services industry.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 493-0874
Fax: (312) 284-4751
Email: rwutscher@mauricewutscher.com

 

Admitted to practice law in Illinois

 

 

 

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