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  • HUD sued for allegedly failing to refund mortgage insurance premiums for early-terminated FHA-insured mortgages

    Courts

    On March 12, a putative class action complaint was filed against the Department of Housing and Urban Development (HUD) for allegedly denying homeowners their Mortgage Insurance Premium (MIP) refunds upon the early termination of their FHA-insured mortgages. According to the complaint, HUD must refund unearned MIPs, but has refused to refund homeowners by creating “unnecessary bureaucratic hurdles.” The plaintiffs alleged that the OIG had confirmed “the validity of complaints regarding HUD’s handling of MIP refunds.”

    Citing HUD regulations, the plaintiffs alleged that when an FHA mortgage is terminated early, within seven years of the purchase of the refinancing of the property, there is an overpayment of the MIP which should be refunded by HUD. According to the plaintiffs it is a “widespread practice” for HUD not to automatically refund MIPs, but instead require a burdensome, lengthy process which hindered the prompt refund of fees in multiple ways. The 2022 OIG report cited by plaintiffs allegedly found, among other things, that HUD did not have adequate controls in place to ensure that refunds were appropriately tracked, monitored, and issued. The plaintiffs alleged that Floridians are owed over $21.7 million in refunds.

    The plaintiffs are seeking injunctive and declaratory relief and a return of all unfairly retained refunds “together with damages in the amount of the total earned interest and other investment monies accrued by Defendant with Plaintiff’s and Class Members’ monies.” 

    Courts Federal Issues HUD Class Action OIG FHA

  • Plaintiffs seek preliminary approval of $9 million class action settlement involving unsolicited texts

    Courts

    On February 8, the U.S. District Court for the Western District of Washington received an unopposed motion for preliminary approval of a class action settlement against a broker-dealer alleging that the defendant violated the Washington Commercial Electronic Mail Act (CEMA) and the Washington Consumer Protection Act (CPA) by having consumers send “unsolicited advertising text messages” to other Washingtonians through a referral program. The proposed settlement would establish a $9 million settlement fund that would compensate an estimated one million affected class members, consisting of consumers who received a referral program text message during the relevant period, were Washington residents, and did not “clearly and affirmatively” consent to receive referral program text messages.

    Courts Class Action Settlement Broker-Dealer Washington

  • District Court receives proposed settlement agreement of $6.3 million for alleged breach of contract

    Courts

    On February 6, the U.S. District Court for the Eastern District of Tennessee received the plaintiffs’ unopposed motion for preliminary approval of a class action settlement agreement as part of their lawsuit against a large bank for alleged breach of contract. According to the motion, the class action started when the plaintiffs allegedly sustained damages after the bank’s predecessor breached its contract. The contract in dispute provided consumers a high-interest market investment account that had an interest rate that was “guaranteed [to] never fall below 6.5%”; however, in 2018, the predecessor bank dropped the interest rate on all accounts below the “guaranteed” floor of 6.5 percent, down to 1.05 percent, and then to nearly zero. While the plaintiffs alleged this to be a breach of contract, the bank’s representative allegedly testified they did not have to honor the guaranteed interest rates “because the signature cards (signed by some account holders) allowed FNB to ‘adjust’ the interest rate.”

    One hundred and twenty-one plaintiffs are seeking court approval of their class action settlement. As part of the proposed settlement, plaintiffs want the defendant to pay $6.3 million to settle the class action. Additionally, the named plaintiffs want to receive $10,000 per plaintiff. The court neither granted nor denied the plaintiffs’ motion, but the defendant bank did not oppose the plaintiffs’ motion. A final hearing to consider entry of a final order is outstanding.

    Courts Settlement Agreement Class Action Breach of Contract

  • District Court dismisses FDCPA class action lawsuit for lack of standing on alleged concrete injuries suffered

    Courts

    On January 31, the U.S. District Court for the Eastern District of New York dismissed an FDCPA class action lawsuit for lack of standing. According to the order, plaintiff alleged numerous violations of the FDCPA related to two debt collection letters sent to the plaintiff and his girlfriend. In September 2023, a debt collector (defendant) reportedly sent two letters to the plaintiff which allegedly did not contain the requisite information mandated by the FDCPA for communication with consumers, including validation and itemization details. One of the letters purportedly demanded payment by September 29, falling within the 30-day validation period. Additionally, plaintiff asserted that one of the letters was addressed to his girlfriend who bore no responsibility for the debt. Plaintiff claimed two concrete injuries: (i) the letters allegedly strained his relationship with his girlfriend, causing emotional distress; and (ii) due to the omission of critical information in the letters, plaintiff felt confused and uncertain about how to effectively respond.  

    In considering the plaintiff’s claims, the court discussed the elements required to state a claim for publicity given to private life and examines a specific case where such a claim was rejected by the court. It highlights that for such a claim to succeed, the matter publicized must be highly offensive to a reasonable person and not of legitimate public concern. Additionally, mere communication of private information to a single person typically does not constitute publicity, unless it has the potential to become public knowledge. Although Congress explicitly prohibits debt collectors from sharing consumer financial information with third parties, the court noted that it “does not automatically transform every arguable invasion of privacy into an actionable, concrete injury.” Therefore, the plaintiff's injury, as pleaded, was deemed insufficiently concrete for standing purposes. Regarding the second alleged injury, the court argued that confusion alone does not suffice as a concrete injury for standing purposes, and courts have determined that mere confusion or frustration does not qualify as an injury. Additionally, the court compared the case to other cases where plaintiffs had alleged confusion yet had also demonstrated further injuries.

    Courts FDCPA Class Action Consumer Finance Litigation Standing Debt Collection

  • Washington Appeals Court disagrees with appellant in a class action data breach; affirms lower court’s decision

    Courts

    On January 8, the Washington State Court of Appeals affirmed superior court rulings granting final approval to a class action settlement, denying a motion to consolidate six class action lawsuits, and approving a class notice plan. According to the opinion, in 2021, the U.S. Department of Health and Human Services notified the respondent company, a nonprofit organization serving low-income individuals, of a data breach that exposed the social security numbers of 163,499 individuals. In 2022, appellant filed a class action lawsuit against the respondent company, one of six such separate class action lawsuits. The appellant filed a motion to consolidate the six pending class action lawsuits, which was denied. Subsequently, plaintiffs in one of the class action lawsuits signed a settlement agreement and release that would release, discharge, and bar all claims asserted in the other class action lawsuits and provide compensation anywhere from $100 to $25,000 to impacted individuals. The appellant plaintiff then filed the instant appeal alleging that the lower court abused its discretion by denying her motion to consolidate the six actions, that the class action plan failed to provide reasonable notice, and that the settlement was not fair, reasonable, or adequate because “the settlement is the product of collusion between the settling parties.” The appellate court disagreed and ultimately upheld the lower court’s rulings. 

    Courts Washington Appellate Data Breach Unfair DHHS Class Action

  • District Court dismisses FDCPA class action for lack of standing

    Courts

    Recently, the U.S. District Court for the Eastern District of New York dismissed a class action lawsuit alleging that a debt collector’s (defendant) collection notice violated the FDCPA by including two different balances absent any explanation, leaving plaintiff confused and unable to pay the debt. Plaintiff also alleged she suffered emotional harm and expended time and money as a consequence of defendant’s letter.

    The district court held that plaintiff’s “mere” allegations of wasted time, resources, and efforts after receiving the collection letter do not establish injury-in-fact. Furthermore, the allegations do not support standing because “the burdens of bringing a lawsuit cannot be the sole basis for standing.” Additionally, in response to claims of emotional harms, the district court found that the allegations are “virtually identical to those that have been rejected in other similar FDCPA cases.” Ultimately, the district court found that “[p]laintiff does not clearly allege facts that demonstrate standing to pursue her claims in federal court, and the Court consequently lacks jurisdiction over this action.”

    Courts Class Action New York Debt Collection

  • Large bank agrees to proposed settlement agreement; to be decided in February

    Courts

    On November 27, 2023, a large Canadian bank agreed to pay $15.9 million to accountholders in a proposed settlement agreement stemming from a class action suit in which the bank allegedly charged improper non-sufficient fund (NSF) fees. NSF fees are charges by a financial institution when they decline to make a payment from an accountholder’s account after determining the account lacks sufficient funds. Plaintiffs alleged that from February 2, 2019, to November 27, 2023, the bank charged accountholders multiple NSF fees on a single attempted transaction. In the agreement, the bank continues to deny liability. While an agreement has been reached between the two parties, the agreement has yet to be approved by the courts. A hearing has been scheduled for February 13, 2024, in the Ontario Superior Court of Justice to approve the settlement and award the payouts. Accountholders will receive their payouts, “estimated to be in the range of approximately $88 CAD,” deposited directly to their account with the bank. Under the proposed settlement agreement, the representative plaintiff will receive an honorarium of $10,000. As previously covered by InfoBytes, the FDIC warned that supervised financial institutions that charge multiple NSF fees on re-presented unpaid transactions may face increased regulatory scrutiny and litigation risk.

    Courts Banking Canada Of Interest to Non-US Persons Settlement Class Action Enforcement NSF Fees Fees

  • District Court grants defendant’s motion to dismiss in a class action under FDCPA.

    Courts

    On November 27, the U.S. District Court for the District of New Jersey granted a defendant’s motion to dismiss a class action case brought under the FDCPA. The court agreed with the defendant that the plaintiffs did not suffer “concrete injury” and therefore did not have standing to sue.

    The plaintiffs received debt collection letters from the defendant stating that the defendant might “take additional collection efforts” including sending “a negative credit report” if there was no response within seven days. The plaintiffs alleged the letters were “deceptive” because they violated the defendant’s own policy of credit reporting at 60 days and not seven days. The defendant moved to dismiss, arguing the plaintiffs suffered no “concrete injury” and therefore did not have standing to bring this case.

    Because the plaintiffs did not incur any concrete harm—they did not allege any out-of-pocket expenses or public embarrassment as a result of the collection letters—the plaintiffs instead advanced a “novel” standing argument. Turning to the Supreme Court’s decision, the plaintiffs argued that violation of a traditional tort that Congress had elevated by statute can provide sufficient “concrete harm.” Under this theory, the plaintiffs argued that the collection letter violated the “anchor tort” of unreasonable debt collection when Congress had elevated to a statutory basis when enacting the FDCPA.

    The court disagreed. In its opinion, the court noted that the plaintiffs had only provided two relevant cases indicating the existence of the unreasonable debt collection tort, both of which were from Texas, the oldest of which was nearly 70 years old. The court held that “a tort that exists in only one jurisdiction is not prevalent enough to be traditional,” and there was no precedent to determine whether a 70-year-old tort was old enough to be “traditional.” Accordingly, the court ruled in favor of the defendant and granted a motion to dismiss.

    Courts FDCPA Class Action Debt Collection

  • Healthcare providers reach $3.5 million settlement in FDCPA suit after eight years of litigation

    Courts

    On November 2, two healthcare providers settled with plaintiffs after eight years of litigation between the district court and the U.S. Court of Appeals for the 6th Circuit, stemming from alleged violations of the FDCPA, breach of contract, and violations of the Ohio Consumer Sales Practices Act, among other things. According to the order, the defendants allegedly contacted plaintiffs and their legal counsel, requesting that their legal counsel sign a letter to forego any legal settlement or judgment against the defendants to prevent plaintiffs’ accounts from being sent to collections, despite having plaintiffs’ health insurance information. While the defendants deny any fault, wrongdoing, or liability in connection with the claims, the parties agreed to a settlement amount of $3.5 million, with each claimant receiving a cash payment of $25. The class is comprised of 12,000 individuals with health insurance plans accepted by the healthcare provider who were patients at an Ohio facility from 2009 to 2023, and subsequently made payments or were asked to make payments for their treatment, excluding co-pays or deductibles. Additionally, certain class members will also receive a cash payment equal to fifty percent of the amount paid to the healthcare provider.

    Courts Class Action Debt Collection FDCPA Settlement Sixth Circuit

  • 7th Circuit: Court upholds dismissal of FDCPA lawsuit over debt information sharing

    Courts

    On October 23, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of a consumer’s putative class action lawsuit alleging that a collection agency violated the FDCPA by sharing the consumer’s debt information with a third-party vendor. The court ruled that the consumer lacked standing because she did not sustain an injury from the sharing of her information.

    To collect a defaulted credit-card debt, the defendant collection agency used a third-party vendor to print and mail a collection letter to the consumer. The consumer alleged that the collection agency violated the FDCPA by disclosing to the vendor the consumer’s personal information, and the disclosure was analogous to the tort of invasion of privacy. The appeals court disagreed, reasoning that the sharing of a debtor’s data with a third-party mail vendor to populate and send a form collection letter that caused no cognizable harm, legally speaking. The court also noted that the U.S. Courts of Appeal for the Tenth and Eleventh Circuits have reached similar conclusions. “The transmission of information to a single ministerial intermediary does not remotely resemble the publicity element of the only possibly relevant variant of the privacy tort.”

    Courts Privacy, Cyber Risk & Data Security Seventh Circuit FDCPA Class Action Appellate Credit Cards

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