FYI: Fla Sup Ct Holds Lenders May Pursue Separate Deficiency Action After Foreclosure

The Florida Supreme Court recently resolved a conflict among the state appellate courts.

 

At issue in the case was whether section 702.06, Florida Statutes (2014) permitted lenders to pursue a deficiency claim as a separate action at law even though the foreclosure court had reserved jurisdiction in its final judgment to adjudicate the deficiency claim. 

 

The First District Court of Appeal had ruled that a lender could not pursue the deficiency as a separate action at law, which was in conflict with decisions from the Second, Third, Fourth and Fifth District Courts of Appeals. 

 

The Florida Supreme Court resolved the conflict and concluded that the lender was permitted to pursue a deficiency claim as a separate action at law. 

 

The Supreme Court concluded that the statute was unambiguous and, even though the foreclosure court could retain jurisdiction to adjudicate a deficiency claim, unless that court actually adjudicated the deficiency claim the lender could pursue it as a separate action at law.  Accordingly, the Supreme Court quashed the decision from the First District Court of Appeal.

 

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

 

The borrower's residential property was foreclosed by final judgment. The judgment expressly reserved jurisdiction to rule on any future deficiency claim, but no one sought to adjudicate the claim in that forum.  Instead, the entity who had been assigned the note and mortgage (Assignee) filed a separate action at law seeking a deficiency judgment against the borrower.

 

The trial court granted summary judgment based on an issue related to the validity of the assignment to the Assignee, and the Assignee appealed. The First District Court of Appeal quashed the trial court's ruling, not on the assignment issue, but instead ruled that the trial court lacked subject-matter jurisdiction over the claim under section 702.06.  The First District concluded that the foreclosure court had previously reserved jurisdiction to handle the deficiency claim, thus depriving the trial court of jurisdiction.

 

Because the First District's ruling conflicted with rulings from all of the other Florida district courts of appeal, the Supreme Court accepted discretionary review.

 

The Florida Supreme Court identified the issue as whether section 702.06 permitted a separate action at law for a deficiency judgment if the foreclosure court had reserved jurisdiction to decide the deficiency claim but had not actually ruled on the deficiency claim.  The Supreme Court declared the issue as one of statutory interpretation. 

 

As you may recall, section 702.06 reads in relevant part:

 

In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound discretion of the court . . . . The 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.

 

Section 702.06, Fla. Stat. (2014).

 

The Court concluded the statute was unambiguous.  "The statute plainly allows the foreclosure court to adjudicate the deficiency claim but also gives the complainant '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.' A reservation of jurisdiction is not a grant or denial of the claim.  The foreclosure court would have only 'granted or denied' the deficiency judgment if it had adjudicated the claim.  Therefore, this statute plainly precludes the separate action only where the foreclosure court has actually ruled on the claim." 

 

The Florida Supreme Court observed that the First District's ruling was flawed because it relied on an earlier First District decision that had interpreted a prior version of section 702.06.  The prior version of section 702.06 did not contain the 'granted or denied' language.  Thus, the newer version eliminated any confusion as to the ability to pursue a separate action for the deficiency claim.

 

The Court concluded that section 702.06, Florida Statutes (2014) permits an independent action at law for a deficiency judgment when the foreclosure court has expressly reserved jurisdiction to handle a deficiency claim but has not actually decided the merits of the claim. 

 

Accordingly, the Florida Supreme Court quashed the First District's ruling and overturned the prior decision the on which the First District relied, and also approved the decisions from the Second, Third, Fourth and Fifth District Courts of Appeal. 

 

 

 

 

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: 9th Cir Holds Judicial Foreclosures Are Debt Collection Under FDCPA

A panel of the U.S. Court of Appeals for the Ninth Circuit recently held that a law firm's effort to collect homeowner association ("HOA") assessments through judicial foreclosure constitutes debt collection under the federal Fair Debt Collection Practices Act ("FDCPA").

 

In so ruling, for purposes of whether activity constitutes debt collection under the FDCPA, the Court distinguished judicial foreclosures that allow for deficiency judgments from non-judicial foreclosures that do not allow for deficiency judgments.

 

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

 

The plaintiff consumer purchased the subject property in Arizona subject to annual HOA annual assessments pursuant to a declaration of covenants, conditions, and restrictions. 

 

The assessments were payable in monthly installments. Upon default on payment of the assessments, the HOA had the right to collect the debt, as well as late fees, costs, and attorneys' fees, by suing the Plaintiff or bringing an action to foreclose the lien.  The HOA was required to make a written demand prior to recording a notice of lien against Plaintiff's property. 

 

The HOA first notified plaintiff of her failure to pay the assessment debt in 2009.  Defendant law firm represented the HOA in a suit against plaintiff in state court that was resolved with a payment agreement.  After default under the agreement, defendant revived the suit and obtained a default judgment in 2010.  In 2012, defendant represented the HOA in another suit in state court against plaintiff after a subsequent default.  The second suit was resolved pursuant to a new payment plan and plaintiff executed a stipulated judgment recognizing the HOA's right to collect the debt by selling the subject property.

 

In 2013, plaintiff defaulted under the new payment plan and defendant requested, via praecipe and writ of special execution for the foreclosure of the subject property.  The state court granted defendant's request and the property was sold for $75,000 at a foreclosure sale.  Defendant and the HOA received $11,600.12 in satisfaction of the debt, attorneys' fees and costs.

 

Plaintiff filed suit in federal court alleging defendant violated the FDCPA in 2013 and 2014 by misrepresenting the amount of plaintiff's debt and seeking attorneys' fees to which it was not entitled. 

 

The trial court granted defendant's motion for summary judgment as to the FDCPA claim on two independent grounds. First, the trial court found that defendant was not engaged in debt collection as defined under the FDCPA.  Second, the trial court found that filing the writ did not violate the FDCPA because the state trial court later approved the attorneys' fees claimed in the writ.  Plaintiff appealed.

 

On appeal, the Ninth Circuit ruled that the trial court erred in holding that the judicial foreclosure proceedings were not debt collection for purposes of the FDCPA. 

 

The Court noted that the FDCPA defines a "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, whether or not such obligation has been reduced to judgment.'" See 15 U.S.C. § 1692a(5).  Further, the Court explained that the FDCPA "defin[es] the term 'debt collector' to embrace anyone who 'regularly collects or attempts to collect . . . debts owed or due . . . another.'" Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017) (citing 15 U.S.C. § 1692a(6)).

 

The Ninth Circuit noted that "'attorneys who 'regularly' engage in consumer-debt-collection activity" are debt collectors under the Act, "even when that activity consists of litigation.'" Heintz v. Jenkins, 514 U.S. 291, 299 (1995). Further, Plaintiff's obligation to pay HOA dues arose "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[.]" Thus, the Court explained that the record was clear that defendant was a "debt collector" collecting "debt" under the plain language of the FDCPA.

 

In so ruling, the Court rejected defendant's contention that they are not debt collectors when pursuing a foreclosure to enforce a security interest under Ho v. ReconTrust Co., NA, 858 F.3d 568 (9th Cir.), cert. denied, 138 S. Ct. 504 (2017). In Ho, the Court held that "actions taken to facilitate a non-judicial foreclosure . . . are not attempts to collect a 'debt' as that terms is defined by the FDCPA[,]" because "[t]he object of a non-judicial foreclosure is to retake and resell the security, not to collect money from the borrower[,]" and because "California law does not allow for a deficiency judgment following non-judicial foreclosure[,]" "the foreclosure extinguishes the entire debt even if it results in a recovery of less than the amount of the debt."

 

The Ninth Circuit explained that Ho was distinguishable, because here, defendants "filed the Praecipe and Writ in order to collect a debt arising from Plaintiff's failure to pay homeowner association fees as part of a judicial foreclosure scheme that in many cases allows for deficiency judgments. See Ariz. Rev. Stat. §§ 33-727(A), 33-729(B)-(C).  Thus, defendant's actions in the judicial foreclosure constituted debt collection under the FDCPA.

 

The Court also rejected the trial court's finding that the writ did not violate the FDCPA because the state trial court later approved the attorneys' fees claimed therein.  Specifically, the Court found that the trial court failed to examine whether defendants were legally entitled to claim the attorneys' fees owed at the time of the writ application.

 

Under the FDCPA, debt collectors "may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt[,]" which includes "[t]he false representation of the character, amount, or legal status of any debt[.]" See 15 U.S.C. § 1692e.  The Court noted that defendant stated in the writ that accruing post-judgment attorney's fees were due pursuant to the stipulated judgment.  However, in Arizona, requests for post-judgment attorneys' fees must be made in a motion to the court. See Ariz. R. Civ. P. 54(g).

 

The Ninth Circuit found that no state court had approved the "accruing" attorneys' fees claimed in the writ at the time it was filed, and therefore, defendant violated the FDCPA by "falsely represented the legal status of this debt, by implicitly claiming that the accruing attorneys' fees of $1,597.50 already had been approved by a court."

 

Accordingly, the Court reversed the trial court's granting of summary judgment in part and remanded the case for a determination on damages for the FDCPA claim.

 

 

 

 

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: California Enacts Consumer Privacy Act of 2018

California recently passed into law the California Consumer Privacy Act of 2018 (Privacy Act), which becomes operative on Jan. 1, 2020.

 

As with the EU's General Data Protection Regulation (GDPR), the Privacy Act gives consumers greater control over the use and sharing of their personal information.

 

The Privacy Act allows a consumer to request that a business disclose:

 

-the categories and specific pieces of personal information that it collects about the consumer;

-the categories of sources from which that information is collected;

-the business purposes for collecting or selling the information;

-the categories of third parties with which the information is shared; and

-the specific pieces of personal information it has collected about the consumer.

 

A consumer may request similar information with respect to personal information that a business sells to third parties, and a consumer may instruct a business not to sell her or his personal information.  Such businesses must include a link on their homepage titled "Do Not Sell My Personal Information."

 

A consumer may also request deletion of any of her or his personal information the business has collected.  However, a business is not required to comply with a deletion request under certain circumstances including, but not limited to, when the personal information is necessary to:

 

-complete the transaction for which the personal information was collected;

-enable solely internal uses that are reasonably aligned with the expectations of the consumer based on the consumer's relationship with the business;

-comply with a legal obligation; and

-use the consumer's personal information, internally, in a lawful manner that is compatible with the context in which the consumer provided the information.

 

Additionally, the Privacy Act is specifically inapplicable in a number of instances, including with respect to information that is de-identified or aggregated, information to or from a consumer reporting agency pursuant to the Fair Credit Reporting Act, information disclosed pursuant to the Gramm-Leach-Bliley Act, and information disclosed pursuant to the Driver's Privacy Protection Act of 1994.

 

The Privacy Act provides consumers a private right of action in the event of the theft or disclosure of nonencrypted or nonredacted personal information resulting from a failure to maintain reasonable security measures. 

 

The Privacy Act allows for injunctive relief and damages of $100 to $750 per consumer per incident or actual damages, whichever is greater.  Prior to initiating an individual or class action, a consumer must provide the 30 days' notice to the business to cure the violation.

 

A business may seek the opinion of the Attorney General on how to comply with the provisions of the Privacy Act.  Violations may result in civil penalties of up to $2,500 per violation pursuant to Cal. Bus. & Prof. Code § 17206, or up to $7,500 per violation for intentional violations.

 

 

 

 

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

 

 

 

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

 

 

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 and webinar presentations are available on the internet, in searchable format, at:

 

Financial Services Law Updates

 

and

 

The Consumer Financial Services Blog™

 

and

 

Webinars

 

and

 

California Finance Law Developments