FYI: 5th Cir Rejects Borrower's Challenge to Lender's Auto-Pay Services Under Texas DTPA

The U.S. Court of Appeals for the Fifth Circuit recently affirmed the dismissal of a borrower's claims against her lender arising out of a foreclosure, holding among other things that alleged discrepancies as to the lender's automatic payment withdrawal services did not state a claim under the Texas Deceptive Trade Practices Act ("DTPA").

 

In so ruling, the Court also affirmed the denial of a plaintiff borrower's motion to join a non-diverse defendant holding that the motion was improperly brought for the purpose of defeating diversity jurisdiction.

 

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

 

A borrower's ex-husband obtained a purchase-money loan secured by a deed of trust ("DOT").  The borrower signed the note, but not the DOT. 

 

The borrower later underwent a divorce proceeding and was awarded legal possession of the house.  The borrower became the sole obligor on the note.  The borrower later defaulted and the lender sent statutorily required notices to the residence and her mother's residence.  The lender eventually foreclosed on the house.

 

The borrower sued the lender and a local employee in Texas state court alleging breach of contract, negligence, wrongful foreclosure, and violations of the Texas Deceptive Trade Practices Act ("DTPA"). 

 

The lender removed the action to federal court arguing that that the lender's local employee was fraudulently joined to defeat diversity jurisdiction, and also moved to dismiss the allegations raised.  The borrower dismissed the local employee, and moved to amend her substantive claims against the lender and add a claim against her husband for intentional infliction of emotion distress ("IIED").  ,

 

The district court denied the borrower's motion to join a non-diverse defendant and granted the lender's motion to dismiss.  The borrower appealed.

 

The Fifth Circuit first addressed the borrower's purported claims.  The Court noted that a breach of contract claim has three elements under Texas state law: 1) existence of a valid contract, 2) performance or tendered performance by the plaintiff, 3) breach of contract by the defendant, and 4) damages to the plaintiff resulting from the breach.  

 

The borrower argued that the lender breached the loan contract by failing to send default notices to her new address, and by making automatic withdrawals from her checking account for her mortgage payments. Rejecting these argument, the Court found that the borrower failed to allege her own performance.  In fact, the Fifth Circuit held, the default notices attached to the lender's motion to dismiss evidenced the borrower's failure to perform.

 

The Fifth Circuit next addressed the borrower's negligence claims.  The borrower argued that the lender negligently failed to make automatic withdrawals from her checking account, and negligently failed to send her the statutorily required default notices to her new residence.  The Court recited that a negligence claim has three elements under Texas state law: 1) a legal duty, 2) a breach of duty, and 3) damages proximately cause from the breach. 

 

The Court again rejected the borrower's argument, holding that "if the defendant's conduct . . . would give rise to liability only because it breaches the parties' agreement", the claim arises out of contract and not tort.  The Fifth Circuit found that the lender's duties to make automatic withdrawals and send default notices arose out of the contract between her and the lender and therefore affirmed the dismissal of her negligence claim.

 

The Fifth Circuit then addressed the borrower's wrongful foreclosure claims.  The Court identified the three elements of a wrongful foreclosure claim under Texas law as: 1) a defect in the foreclosure proceedings, 2) a "grossly inadequate selling price", and 3) a "causal connection between the defect and the grossly inadequate selling price." 

 

The Court noted that the borrower needed to allege a "grossly inadequate selling price" unless the borrower alleged that the foreclosing mortgagee "deliberately chilled bidding at the foreclosure sale."  The borrower alleged a defect in that the lender failed to send default notices to her new address, but did not allege a "grossly inadequate" selling price or a deliberately "chilled bidding".  Thus, the Fifth Circuit affirmed the dismissal of her wrongful foreclosure claims.

 

The Court also rejected the borrower's DTPA arguments.  A claim under the DTPA requires that: 1) the plaintiff is a consumer, 2) the defendant was false, misleading, or deceptive, and 3) the defendant's acts were a producing cause of the plaintiff's damages.  To qualify as a consumer under the DTPA, the borrower must have "sought or acquired goods or services" and those "goods or services . . . must form the basis of the complaint."  The goods or services must be an "objective of the transaction and not merely incidental to it."

 

The Fifth Circuit found that automatic withdrawal "services" that the lender provided were "incidental to the loan" and served no other purpose but to facilitate loan.  According, the Court affirmed the dismissal of the borrower's DTPA claim.

 

Last, the Court addressed the borrower's appeal of the denial of her motion to add a non-diverse, indispensable party. 

 

The Fifth Circuit noted that the district court has wide discretion on whether to allow a party to be added.  Specifically, the district court should scrutinize such an amendment and consider whether the purpose is to defeat federal jurisdiction, whether the plaintiff was dilatory in her request, and whether the plaintiff will be significantly injured by a denial. 

 

The Court determined that the borrower's intent in joining her ex-husband was to defeat diversity jurisdiction, that she had been dilatory by waiting over two months before her attempt to join, and she would not be injured because she could pursue her IIED claims in state court.

 

Accordingly, the Fifth Circuit affirmed the district court's ruling.

 

 

 

 

 

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: 7th Cir Holds Customer Did Not Agree to Online Contract, Adopts "Reasonable Communicativeness" Test

The U.S. Court of Appeals for the Seventh Circuit recently held that, under Illinois law, a website must provide a user reasonable notice that use of the website and a click on a button constitutes assent to the terms of an agreement, in order for the agreement to be binding.  

 

In so ruling, the Seventh Circuit adopted a two part "reasonable communicativeness" test for the enforceability of online agreements: 1) whether the web pages presented to the customer adequately communicated all of the terms and conditions of the agreement; and 2) whether the circumstances support the reasonable assumption that the customer received reasonable notice of the terms.

 

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

 

A customer purchased a "credit score" package from a credit reporting agency's (CRA) website.  When the customer went to purchase a car with the credit score he obtained from the CRA, he discovered that the score he obtained from the CRA was 100 points lower than the score obtained by the car dealership.  

 

The customer filed suit under the federal Fair Credit Reporting Act, 15 U.S.C. §1681g(f)(7)(A), the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq., and the Missouri Merchandising Practices Act MO. REV. STAT. § 407.010. 

 

The customer alleged that the CRA supposedly misled customers by failing disclose that the formula it used to calculate credit scores was materially different from the formula used by lenders.  The CRA filed a motion to compel arbitration based on the arbitration agreement on the website that the customer used to purchase the credit score package.  The district court denied the CRA's motion and held that a binding contract had not been formed.  The CRA appealed.

 

On appeal, the Seventh Circuit determined that it had jurisdiction to hear the suit under the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(B).  The Court noted that because arbitration is a creature of contract, the issue presented was whether an arbitration agreement existed.

 

The Court first examined the layout of the CRA's website and the transaction at issue.   The customer had to complete 3 steps to obtain his "free credit score & $1 credit report."  The first step required the customer to provide identifying information and select "Yes" or "No" prompts regarding tips and news about the service and special offers.  Upon clicking the submit button, the customer was brought to the second step.  Step 2 required the customer to create an account user name and password and submit his credit card information.

 

A service agreement was located at the bottom of the screen for the second step in a scrollable window. To view the service agreement, the customer had to click on the box and scroll down, though there was no requirement to do so.  The service agreement contained a hyperlink to a "printable version".  The arbitration agreement at issue was located on the eighth page of the ten page "printable version" of the service agreement.

 

Above a button stating "I Accept & Continue to Step 3" and beneath the scrollable service agreement window was a statement that read:

 

You understand that by clicking on the 'I Accept & Continue to Step 3' button below, you are providing 'written instructions' to TransUnion Interactive, Inc. authorizing TransUnion Interactive, Inc. to obtain information from your personal credit profile from Experian, Equifax and/or TransUnion. You authorize TransUnion Interactive, Inc. to obtain such information solely to confirm your identity and display your credit data to you.

 

The CRA claimed that the customer consented to the arbitration agreement by clicking on the "I Accept & Continue to Step 3" button.  The Court noted that, although other jurisdictions have found express consent and a binding agreement in similar circumstances, it was instead required to apply Illinois contract principles in its analysis.

 

The Seventh Circuit explained that Illinois uses an objective approach to evaluate the mutual assent required to form a contract.  Under Illinois law, the intent to manifest assent can be revealed by outward expressions such as words or acts.  Parties must have mutual assent as to the terms, but need not share the same subjective understanding of the terms.

 

The Court adopted a two part "reasonable communicativeness" test originally developed to evaluate contracts involving cruise ship tickets.  The questions posed are: 1) whether the web pages presented to the customer adequately communicated all of the terms and conditions of the agreement; and 2) whether the circumstances support the reasonable assumption that the customer received reasonable notice of the terms.

 

Applying this "reasonable communicativeness" test, the Seventh Circuit found that the CRA's website did not properly disclose the arbitration agreement to the customer.   The Court noted that the CRA's website did not indicate that the purchase was subject to any terms and conditions, and the "service agreement" said nothing about what it governed.   In addition, the Court noted that the hyperlink only stated "printable version" and did not have any prompt to read the terms of the service agreement.

 

The Seventh Circuit also found that the words above the "I Accept & Continue to Step 3" button appeared to distract from the service agreement. 

 

Thus, the Court held that Illinois law requires a website to provide a user reasonable notice that his use of the site and click on a button constitutes assent to an agreement.  More specifically, the Seventh Circuit held, a website must position a box or hyperlink containing an agreement unambiguously next to an "I Accept" button. 

 

Therefore, the Court found that there was not mutual assent to the arbitration agreement.  Accordingly, the Seventh Circuit affirmed the district court's denial of the agency's motion to compel arbitration and remanded for further proceedings.

 

 

 

 

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: 7th Cir Confirms Borrower Lacks Standing to Raise Alleged Violations of Pooling and Servicing Agreement

The U.S. Court of Appeals for the Seventh Circuit recently held that a mortgagor is not a third-party beneficiary under a pooling and servicing agreement under New York law, and therefore lacks standing to challenge purported violations of assignments under the agreement.

 

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

 

A borrower executed a note for a loan secured by a mortgage.  The note was indorsed by the lender in blank and transferred to a residential mortgage-backed securities trust ("Trust") formed and governed by a pooling and servicing agreement ("PSA").  The Trust's trustee ("Trustee") held the note and the lender later assigned the Trustee the rights associated with the borrower's mortgage.

 

The borrower defaulted and the Trustee foreclosed on the mortgage. The borrower subsequently filed a petition for Chapter 7 bankruptcy.  The Trustee moved to modify the automatic stay to pursue the state court foreclosure action.  The borrower filed an opposition to the motion to modify the stay and an adversary complaint.

 

In her adversary complaint, the borrower claimed that the Trustee had no interest in her mortgage.  The bankruptcy court granted the Trustee's motion and dismissed the borrower's adversary complaint.  The district court affirmed the bankruptcy court's orders.  The borrower appealed.

 

On appeal, the borrower argued that the Trustee could not collect on the note because the assignment violated the PSA. Specifically, the borrower asserted that the transfers of the note and mortgage were missing intervening indorsements and that the note was transferred after the closing date of the Trust. 

 

However, the Seventh Circuit held that the borrower lacked standing to challenge the purported violations of the PSA. 

 

As the PSA was governed by New York law, the Court noted that only an intended beneficiary of a private trust may enforce its terms.  In addition, the Seventh Circuit explained that New York courts have consistently held that a mortgagor whose loan is owned by a trust is not a beneficiary and does not have standing to challenge purported violations of a pooling and servicing agreement.  

 

Accordingly, the Seventh Circuit held that the borrower lacked standing to raise a challenge based on violations of the PSA because she was not a third-party beneficiary under the PSA.

The borrower conceded that a mortgagor may not challenge a mortgage that is voidable, as the intended beneficiaries may later ratify the assignment. Thus, a challenge to a voidable assignment would interfere with the beneficiaries' right of ratification.

 

However, the borrower attempted to distinguish the established authority by arguing that a mortgagor has prudential standing to challenge a void – and not merely voidable -- assignment because a void assignment cannot be ratified by the beneficiaries.  Therefore, such a challenge would not infringe on any of the beneficiaries' rights. 

 

The Seventh Circuit rejected the borrowers' theory and explained that that New York courts have consistently held that assignments that fail to comply with the terms of a trust agreement are merely voidable, not void. 

 

In addition, the Seventh Circuit explained that New York courts have nearly unanimously concluded that a beneficiary retains the authority to ratify a trustee's ultra vires act.  Thus, a mortgagor would still lack standing because the beneficiaries' ability to ratify any unauthorized mortgage assignment makes the assignment merely voidable.

 

The borrower also argued that section 10.01 of the PSA states "[t]he Trustee, the Depositor, the Master Servicer and the Sellers with the consent of the NIM Insurer may … amend this Agreement, without the consent of the Certificateholders."  Thus, the borrower argued, the terms of the PSA prevented the Certificateholders from amending the agreement, and therefore they supposedly could not ratify ultra vires assignments.

 

However, the Court again rejected the borrower's argument, and explained that the PSA requires the Master Servicer to speak and provide consent on behalf of the Certificateholders. Thus, the Seventh Circuit held, the provisions of the PSA contemplated the Certificateholders having a voice in the amendment process and contesting unauthorized acts through a derivative action.  Therefore, the Court held, the PSA provided a way for the Certificateholders to ratify or challenge unauthorized acts.

 

Last, the Seventh Circuit addressed the borrower's assertions that:  1) the note is void and not negotiable because the lender was a fictitious entity; and 2) the Trustee is an unlicensed debt collector under Illinois law. 

 

The Court found that neither the bankruptcy court nor the district court addressed these claims because they found that the borrower lacked standing. However, because these claims did not arise out of the PSA, the Seventh Circuit remanded to the bankruptcy court to determine whether it should abstain from hearing the adversary proceeding and allow the Illinois courts to consider the claims in the foreclosure.

 

Accordingly, the Seventh Circuit affirmed in part and remanded in part.

 

 

 

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: WD NY Holds TCPA Claim Does Not Survive Death of Plaintiff, TCPA Damages "Wholly Disproportionate to Harm Suffered"

The U.S. District Court for the Western District of New York recently held that claims under the federal Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (TCPA), are penal in nature and therefore do not survive the death of a plaintiff.

 

In so ruling, the Court held that the TCPA's provision of damages in the amount of $500 per phone call, which could be trebled up to $1,500, is "wholly disproportionate to the harm suffered." 

 

Of note, the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution prohibits the imposition of "grossly excessive or arbitrary punishments on a tortfeasor," and "courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered."  See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of N. Am. v. Gore, 116 S. Ct. 1589 (1996).

 

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

 

A plaintiff filed a putative class action against a timeshare vacation rental company for allegedly making two unsolicited phone calls to the plaintiff's call phone in attempt to sell him timeshare properties.  The plaintiff alleged that the defendant used an auto-dialing system to call his cell phone, and that the defendant called twice within twelve months while he was listed on the do-not-call registry.

 

The plaintiff passed away on December 19, 2015.  At the time of his death, the plaintiff had not moved to certify the class.

 

The plaintiff's filed a motion to substitute the plaintiff's estate in place of the plaintiff in the action.  The defendant opposed the motion, arguing that the TCPA claims did not survive the plaintiff's death.

As you may recall, the TCPA prohibits parties from making telephone calls to a cell phone using an "automatic telephone dialing system." 47 U.S.C. § 227(b)(I)(A).  In addition, the TCPA prohibits parties from calling a number on the Federal Communications Commission's do-not-call registry. 47 U.S.C. § 227(c)(5).

 

The Court began its discussion determining whether state or federal law governed the issue in this motion to substitute.  The Court focused on the Supreme Court of the United States's ruling in Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012), that held that federal courts retain their federal-question jurisdiction over private TCPA claims and therefore federal law governs private TCPA claims in federal court.

The Court then turned to the test for survivorship.  The test for survivorship is turns on whether the claims as primarily penal or remedial in nature.  The Court noted that claims that are remedial in nature survive a plaintiff's death, but those that are primarily penal do not.

 

The Court looked to three factors to determine if a civil action is penal or remedial for the purpose of survivability:  "(a) whether the purpose of the TCPA claim is to redress individual wrongs or wrongs to the public; (b) whether recovery runs to the individual or to the public and; (c) whether the recovery is disproportionate to the harm suffered."

 

Turning to the first factor, whether the purpose of the TCPA claim is to redress individual wrongs or wrongs to the public, the Court found that the purpose of a private action under the TCPA is to redress wrongs to the public, and to deter such conduct. 

 

The Court also noted that the plaintiff did not seek damages for actual monetary loss as a result of receiving the alleged phone calls.  As the plaintiff did not seek redress for individual wrong but rather for wrongs to the public, the Court found the first factor suggests the TCPA claims are penal.

 

As for the second factor, whether recovery runs to the individual or to the public, the Court found that damages under the TCPA run to the recipient of the alleged call, and not to the public.  Thus, the Court held, the second factor suggests the TCPA claims are remedial.

 

As to the third factor, whether the recovery is disproportionate to the harms suffered, the Court found that a $500 award, which could be trebled up to a total of $1500, is "wholly disproportionate to the harm suffered."  The Court noted that disproportion of damages deters conduct that violates the TCPA, and also encourages bringing an action to redress violations. Thus, the Court held that the third factor suggests the TCPA claims are penal.

 

In weighing these factors, the Court held that TCPA claims are penal in nature and do not survive the plaintiff's death. 

 

Due to the abatement of the TCPA claims, the injunction additionally sought by the plaintiff no longer would benefit him or his estate and is therefore moot. 

 

Lastly, the Court found that as the class was never certified, the plaintiff's claims were moot, which in turn meant that the entire action becomes moot.

 

Accordingly, the Court denied the plaintiff's motion to substitute as the TCPA claims did not survive his death, and dismissed the action as moot.

 

 

 

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 (3rd DCA) Holds Payment Defaults More Than 5 Yrs Old Not Recoverable

The Third District Court of Appeal, State of Florida ("Third DCA"), recently reversed a final judgment of foreclosure because the plaintiff mortgagee alleged the same payment default as the basis for its prior 2008 and 2014 foreclosure actions.

 

The Third DCA held that on remand the trial court should calculate the correct amount owed for principal and interest, excluding installments that became due more than five years prior to the filing of the second foreclosure action, in accordance with its en banc ruling in Deutsche Bank Trust Co. Americas v. Beauvais.

 

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

 

A mortgagee sued to foreclose its mortgage in 2008, but the case was dismissed without prejudice for failure to comply with a court order. The mortgagee filed a second foreclosure action in 2014, more than five years after the original default in payment and more than five years after the original acceleration of the loan balance.

 

The trial court entered a final judgment of foreclosure in the mortgagee's favor and the borrowers appealed, arguing "that final judgment must be reversed because of the expiration of the five-year statute of limitations applicable to the mortgage note."

 

On appeal, the Third DCA cited its en banc ruling in Beauvais, and the Fifth District Court of Appeal's ruling in U.S. National Assn. v. Bartram, both of which essentially held that "the five-year statute of limitations does not bar a second foreclosure suit filed on a subsequent payment default occurring within the five-year statutory period preceding commencement of the second suit."

 

The Third DCA then found, however, that because the mortgagee relied upon the same payment default and "basis for acceleration in both the 2008 and 2014 complaints …" the final judgment for foreclosure in this action must be reversed and the case remanded for the trial court "to determine the correct sum of principal and interest due under the mortgage note calculated by excluding monthly installment payments due over five years before the commencement of the second foreclosure suit by [the mortgagee]."  

 

 

 

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

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

 

Admitted to practice law in Illinois

 

 

 

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FYI: ND Cal Holds 2015 TCPA Amendment Applies to Collection Calls Made in 2014

The U.S. District Court for the Northern District of California recently held that an amendment to the federal Telephone Consumer Protection Act ("TCPA") enacted as part of the Bipartisan Budget Act of 2015 applies to calls made in 2014 "solely to collect a debt owed to or guaranteed by the United States," and therefore granted summary judgment in favor of the defendant.

 

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

 

The plaintiff filed a putative class action under the TCPA alleging that, in or around January 2014, the defendant student loan lender began calling his cellular phone in an attempt to collect a student loan debt.  The plaintiff asserted that he requested that the defendant not contact him by means other than mail, but that the calls supposedly continued, including two calls placed on January 29, 2014.

 

As you may recall, the TCPA in relevant part prohibits the making of any call, without the prior express consent of the called party, using an automatic telephone dialing system or an artificial or prerecorded voice, to any telephone number assigned to a cellular telephone service. 47 U.S.C. § 227(b)(1)(A).

 

As you may also recall, the Bipartisan Budget Act of 2015 (at section 301), signed into law on November 2, 2015, amended the TCPA to exclude calls "made solely to collect a debt owed to or guaranteed by the United States."  See 47 U.S.C. § 227(b)(1)(A)(iii).

 

The parties did not dispute that the loans at issue were federally funded student loans, and therefore the defendant argued that the issue was "whether the TCPA amendment can be applied retroactively to bar plaintiff's current action."

 

The federal trial court noted that the Supreme Court of the United States "addressed the issue of retroactive application of a statute in Landgraf v. USI Film Products, 511 U.S. 244 (1994)."  In Landgraf, the Supreme Court of the United States acknowledged that "retroactivity is not favored in the law", and held that "[a] statute does not operate retrospectively merely because it is applied in a case arising from conduct antedating the statute's enactment," but "[r]ather, the court must ask whether the new provision attached new legal consequences to events completed before its enactment." Id. at 269-70.

 

With those principles in mind, the Supreme Court of the United States articulated the relevant test as follows:

 

When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

 

511 U.S. at 280.

 

Under this test, the parties disputed whether "Congress has expressly prescribed the statute's proper reach."  The defendant argued that Congress was silent on the amended statute's retroactivity.  However, the plaintiff argued that the 2015 amendment to the TCPA "requires the [FCC] to issue regulations to implement its TCPA changes within nine (9) months of the date of the enactment of the bill."  Because those implementing regulations have not been prescribed, the plaintiff argued the amendment does not apply retroactively.

 

The Court here rejected the plaintiff's argument, as the plaintiff cited no authority for the position that a statute has no legal effect until implementing regulations are put in place.  Instead, the Court held that the amendment is silent on the issue of retroactivity. 

 

Accordingly, under Landgraf, the Court was required to address the next part of the test — i.e., whether retroactive application "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed."  The Court found that none of these three conditions were met.  

 

More specifically, the Court held that rather than "increas[ing] a party's liability for past conduct," the 2015 TCPA amendment "decreases liability for past conduct, by creating an exception for telephone calls 'made solely to collect a debt owed to or guaranteed by the United States.'" In addition, the Court held that the 2015 TCPA amendment did not "impose new duties with respect to transactions already completed," but instead "eliminated certain duties with respect to completed transactions."

 

Perhaps more importantly, the Court also held that the 2015 TCPA amendment would not "impair rights a party possessed when he acted," because "merely impairing the ability to bring a lawsuit does not provide a sufficient basis, under Landgraf, to bar retroactive application."

 

The Court cited Southwest Center for Biological Diversity v. U.S. Dept. of Agriculture, 314 F.3d 1060 (9th Cir. 2002), in which the Ninth Circuit held that an exemption enacted during the pendency of a lawsuit was properly applied to the bar the claims raised by the plaintiff in that case. 

 

The Ninth Circuit rejected the argument that the plaintiff's rights would be impaired by retroactive application of the amendment, holding that the plaintiff in Southwest Center for Biological Diversity "took no action in reliance on prior law that qualifies under Landgraf." 314 F.3d at 1062.  The Ninth Circuit also "specifically held that the plaintiff's 'expectation of success in its litigation is not the kind of settled expectation protected by Landgraf's presumption against retroactivity,' because 'if that expectation were sufficient then no statute would ever apply to a pending case unless Congress expressly made it so applicable,' which would render the Landgraf test 'pointless.' Id. at 1062, n.1."

 

Thus, the Court in the case at had held that the plaintiff failed to meet any of the three conditions identified by the United States Supreme Court in Landgraf, therefore "that applying the TCPA amendment would not have a 'retroactive effect,' as that term was defined by the Landgraf Court."

 

Moreover, again citing the Ninth Circuit's ruling in Southwest Center for Biological Diversity, the Court also held that "application of the TCPA amendment would further Congress's intent to allow telephone calls to be placed in the furtherance of collecting debts owed to or guaranteed by the United States."

 

Accordingly, the Court held that the 2015 TCPA amendment applied to exempt the calls allegedly placed by defendant in 2014, and granted the defendant's motion for summary judgment.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
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