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On April 25, the New York Supreme Court, Appellate Division held that a trustee for two residential mortgage-backed securities (RMBS) trusts is entitled to file an amended complaint concerning “express breach of contract claims.” The issue arose from whether the sponsor breached its agreements with the trustee when it allegedly failed to disclose breaches of representations and warranties discovered during a due diligence review of the RMBS trusts after the transactions closed. According to the opinion, the sponsor claimed that no fraud or misrepresentations had occurred with respect to the loans, but it was later discovered that this was not true. However, the sponsor still moved to dismiss, arguing it was not bound under the mortgage purchase agreements to disclose any breach of the representations and warranties. The trial court dismissed the claims and blocked the trustee from filing an amended complaint after it determined the sponsor was not obligated to relay the loans’ issues after they were discovered.
On review, the appeals court found that the relevant contractual language, requiring the sponsor, upon discovery of any breach to give written notice of the breach to itself, was ambiguous, but opined that “[a]llowing the clause to remain as written would render this provision meaningless”—an important fact since “courts should avoid interpretations that would render contractual language mere surplusage.” The trustee claimed that because the sponsor is included on the list of parties required to provide notice, there must be another unnamed party, other than the sponsor, available to receive notice, whereas the sponsor argued that its inclusion on the list of parties required to give notice was “due to ‘alleged drafting imperfections’” since it is the party that is entitled to receive such notices. Because both parties presented “reasonable competing interpretations,” the appeals court noted, additional proceedings are necessary.
On April 30, the U.S. Court of Appeals for the 2nd Circuit held that the receipt of unsolicited text messages, absent any additional injury, is sufficient to demonstrate injury-in-fact in a TCPA class action. According to the opinion, consumers filed a class action lawsuit against a retail store for sending unsolicited text messages in violation of the TCPA. The district court approved a settlement between the parties and certified the class despite various objections, including one from a third-party defendant who argued the consumers lacked standing under the 2016 Supreme Court opinion Spokeo, Inc. v. Robins, because “they alleged only a bare statutory violation and statutory damages cannot substitute for concrete harm.”
On appeal, the appellate court first rejected the third-party defendant’s standing to appeal the district court’s decision because it had not been “‘formally strip[ped]’ of any claim or defense, it lacks standing to pursue its appeal” in the underlying class action. Notwithstanding the lack of standing by the third-party defendant, the appellate court then went on to address the jurisdictional standing issues raised against the consumers. The court reasoned that, even though the third party that raised the jurisdictional question had been dismissed, the court had an “independent obligation to satisfy [itself] of the jurisdiction” of the appellate and district court. The appellate court concluded that the consumers sufficiently alleged “nuisance and privacy invasion” by the unsolicited text messages, which “are the very harms with which Congress was concerned when enacting the TCPA.” Because the harms identified are “of the same character as harms remediable by traditional causes of action,” the appellate court held the consumers sufficiently demonstrated injury-in-fact as required by Article III.
On April 29, the U.S. Court of Appeals for the 7th Circuit affirmed summary judgment for a debt collector, concluding the collector’s FDCPA violations were unintentional and the debt collector was entitled to the bona fide error defense. According to the opinion, a consumer made his last credit card payment in August 2010, but attempted to make an additional payment in June 2011, which never cleared. In December 2015, the debt collector sent a collection letter to the consumer and subsequently filed a collection action in state court, both assuming a last payment date of June 2011 (the date of the payment that did not clear). The state court dismissed the suit because the last payment that actually cleared was outside of the state’s five-year statute of limitations, meaning the debt was time-barred. The consumer filed suit against the debt collector for violating the FDCPA’s prohibition on collecting time-barred debt. The district court granted summary judgment in favor of the debt collector, holding that the debt collector’s violations were “unintentional and occurred despite reasonable procedures aimed at avoiding untimely collection attempts,” under the statute’s bona fide error defense.
On appeal, the appellate court rejected the consumer’s arguments that the debt collector was unreasonable by not engaging in a meaningful review of the account to learn the true last payment date and that the debt collector had “‘thinly specified policies’” to weed out time-barred debts. The appellate court determined that the FDCPA violations were unintentional, as the debt collector was unaware that the June 2011 payment had failed. Additionally, the appellate court held that the debt collector was not required under the FDCPA to independently verify the validity of the debt to satisfy the requirements of the bona fide error defense. Moreover, while the debt collector’s policies and procedures were “simple,” they were “reasonably adapted to avoid late collection efforts,” and even though they did not prevent the mistake, the FDCPA “‘does not require debt collectors to take every conceivable precaution to avoid errors; rather, it only requires reasonable precaution.’” Because the bona fide error defense applied, the appellate court affirmed summary judgment for the debt collector.
3rd Circuit: District court erred in voiding all cash advance agreements in NFL concussion settlement litigation
On April 26, the U.S. Court of Appeals for the 3rd Circuit, in a consolidated class action, concluded that a district court went “too far” in voiding all of the cash advance arrangements between NFL concussion class members and third party lenders in their entirety. According to the opinion, in December 2017, the district court “issued an order purporting to void in their entirety all assignment agreements” where class members assigned a portion of their settlements from the 2015 NFL concussion injury litigation, concluding that it was “necessary to protect vulnerable class members from predatory funding companies.”
On appeal, the 3rd Circuit addressed the merits in three of the four timely appeals, noting that the fundamental question was whether the district court had the authority to void the agreements. The appellate court held that the district court retained the authority to enforce and administer the settlement because there was an anti-assignment language in the settlement agreement. The appellate court upheld on the district court’s interpretation of the anti-assignment provision, holding that “any true assignments contained within the cash advance agreements—that is, contractual provisions that allowed the lender to step into the shoes of the player and seek funds directly from the settlement fund were void.” However, the appellate court concluded that the district court “went beyond its authority” by purportedly voiding the agreements in their entirety, because there are portions of some of the cash advance agreements that may still be enforceable after the true assignments are voided, such as ones structured as a non-assignment loan agreement. Since the district court’s authority “does not extend to how class members choose to use their settlement proceeds after they are disbursed,” the appellate court reversed in part the December 2017 order, leaving certain cash advance agreements enforceable to the extent rights are retained after the true assignments are voided.
On April 26, the U.S. Court of Appeals for the 4th Circuit reversed a district court’s dismissal of five plaintiffs’ putative class actions alleging RESPA violations, concluding that the claims were not time-barred due to the fraudulent concealment tolling doctrine. According to the opinion, between 2009 and 2014, several banks and mortgage companies (collectively, “defendants”) referred plaintiffs to a title company to procure title insurance and obtain settlement services, which allegedly provided the defendants with “several forms of ‘unearned fees and kickbacks’ to induce those referrals” in violation of RESPA. The plaintiffs alleged the kickbacks came in the form of payments to advertising and marketing shell companies for the referrals, which would then make payments to brokers or loan officers of the defendants. The district court dismissed the class actions because the first of the five class actions was not filed until June 2016, which was well beyond the one-year statute of limitations under RESPA.
On appeal, the plaintiffs argued that they were entitled to relief under RESPA because the kickback scheme was allegedly “fraudulently concealed” by the defendants by using “sham” entities and not reporting the payments on the plaintiffs’ HUD-1 settlement statements. The 4th Circuit agreed, concluding that the district court erred in dismissing the plaintiffs’ claims. The appellate court noted that Congress did not intend to “allow individuals and entities that conceal their unlawful kickback schemes and other RESPA violations to reap the benefit of the statute of limitations as a defense.” Rejecting the defendants’ assertion that publicly-available information, including earlier court filings, should have “‘excited further inquiry’” by the plaintiffs to timely file the action, the appellate court emphasized that the fraudulent concealment doctrine requires only “reasonable diligence” and does not “necessarily hold individual borrowers to the diligence standard of combing court filings in potentially related cases, particularly when the borrower has no reason to be aware of the related cases.”
On April 25, the U.S. Court of Appeals for the 11th Circuit affirmed a district court’s dismissal of a putative class action against a national bank, finding that the plaintiff failed to show an investigation would reveal the bank inaccurately furnished information to credit reporting agencies (CRAs). According to the opinion, after the plaintiff failed to make payments on his mortgage, the bank reported the delinquencies to the three CRAs. A Florida circuit court entered a final judgment of foreclosure in the bank’s favor, which the plaintiff paid two years later after the account was transferred to a different lender. Two years after he paid the foreclosure judgment, the plaintiff noticed that the CRAs showed his account as past due despite the fact that the judgment had been paid. However, following an investigation, the CRAs confirmed that the information provided by the bank was accurate, since it reflected two years of missed payments that the plaintiff later contended he was not obligated to make due to the filing for the foreclosure action. The plaintiff filed a class action suit alleging the bank violated the FCRA by failing to report that he had paid off the foreclosure judgment. The district court dismissed the case with prejudice, ruling that the bank satisfied its obligations under the FCRA, and that the plaintiff failed to support his claim that the bank was obligated to report the payoff after it transferred the account.
On appeal, the 11th Circuit agreed with the district court, opining that because the plaintiff never claimed that the bank was informed of the past-due status dispute by the CRAs, the bank was not obligated to investigate under the FCRA. The court noted that the plaintiff “never alleged that [the bank] received notification from the CRAs that he disputed his account's past-due status as of July 2017,. . .that the CRAs provided notification of any such dispute to [the bank],. . .or even that he contacted the CRAs to dispute that aspect of his credit reports.” The plaintiff further argued that the filing of the foreclosure action and acceleration of the loan relieved him of the obligation to make monthly payments. The 11th Circuit was “unconvinced” by the argument and said that, nonetheless, “[w]hether [the plaintiff] was obligated to make payments on the mortgage after the Foreclosure Action was filed is a currently unresolved legal, not a factual, question. Thus, even assuming [the bank] furnished information that turned out to be legally incorrect under some future ruling, [the bank’s] purported legal error was an insufficient basis for a claim under the FCRA.”
On April 22, the U.S. Court of Appeals for the 11th Circuit affirmed a district court’s ruling that including too many digits of a consumer’s credit card account number on a receipt was sufficient to constitute a concrete injury even if the consumer’s identity was not stolen. Under the Fair and Accurate Credit Transactions Act (FACTA), merchants are prohibited from including more than the final five digits of a consumer’s credit card number on a receipt. According to the opinion, the consumer filed a class action suit against a chocolate company, alleging that one of its stores printed the first six and last four digits of his account number on a receipt, which exposed the class members “to an elevated risk of identity theft.” When the parties sought approval of a proposed settlement, two unnamed class members contested the settlement on the grounds that, among other things, the consumer/class representative lacked standing to sue because he had not suffered a concrete injury as defined in the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins. The district court, however, approved the settlement.
On appeal, the 11th Circuit held that an increased risk of identity theft is sufficient to bring claims under FACTA, and that the class representative’s “alleged injury is ‘particularized’ because the heightened risk of identity theft affected him ‘in a personal and individual way’—it was his credit card number that appeared on the receipt.” Moreover, the appellate court noted, “In our view, if Congress adopts procedures designed to minimize the risk of harm to a concrete interest, then a violation of that procedure that causes even a marginal increase in the risk of harm to the interest is sufficient to constitute a concrete injury.”
On April 24, the U.S. Court of Appeals for the 4th Circuit vacated a district court’s decision to grant summary judgment in favor of the FCC, concluding that an exemption under the TCPA that allows debt collectors to use an autodialer to contact individuals on their cell phones when collecting debts guaranteed by the federal government violates the First Amendment’s Free Speech Clause. According to the opinion, several political consultant groups (plaintiffs) argued that a statutory exemption enacted by Congress as a means of allowing automated calls to be placed to individuals’ cell phones “that relate to the collection of debts owed to or guaranteed by the federal government” is “facially unconstitutional under the Free Speech Clause” of the First Amendment. The plaintiffs argued that the debt-collection exemption to the automated call ban contravenes their free speech rights. Moreover, the plaintiffs claimed that “the free speech infirmity of the debt-collection exemption is not severable from the automated call ban and renders the entire ban unconstitutional.” The FCC, however, argued that the applicability of the exemption depended on the relationship between the government and the debtor and not on the content. The district court awarded summary judgment in favor of the FCC after applying a “strict scrutiny review,” ruling that the exemption does not violate the Free Speech Clause.
On appeal the 4th Circuit agreed with the plaintiffs that the exemption contravenes the Free Speech Clause, and found that the challenged exemption was a content-based restriction on free speech that did not hold up to strict scrutiny review. “Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.” And because the exemption is a content-based restriction on speech, it must satisfy strict scrutiny review to be constitutional, which it fails to do, the 4th Circuit opined. “The exemption thus cannot be said to advance the purpose of privacy protection, in that it actually authorizes a broad swath of intrusive calls. . . [and] therefore erodes the privacy protections that the automated call ban was intended to further.” However, the appellate court sided with the FCC to sever the debt collection exemption from the automated call ban. “First and foremost, the explicit directives of the Supreme Court and Congress strongly support a severance of the debt-collection exemption from the automated call ban,” the panel stated. “Furthermore, the ban can operate effectively in the absence of the debt-collection exemption, which is clearly an outlier among the statutory exemptions.”
On April 22, the U.S. Court of Appeals for the 8th Circuit affirmed a district court’s dismissal of a consumer’s FDCPA action. The plaintiff alleged that the credit collections bureau violated the FDCPA’s prohibition against false, misleading, or deceptive representations when it sent a collection letter that included, among other things, the words “PROFESSIONAL DEBT COLLECTORS” along with an acronym for the company, which the plaintiff claimed violated the FDCPA’s provision which states that a debt collection may not use “any business, company, or organization name other than the true name. . . .” The plaintiff further alleged that the defendant violated the FDCPA and Minnesota law by (i) representing that she could submit payments on-line or correspond with the company through a designated website; (ii) stating it may seek pre-judgment interest; and (iii) including the signature of an individual who was not licensed to engage in debt collection activities in the state. The district court dismissed the claims, concluding that the use of the aforementioned language was not false or misleading under the “unsophisticated consumer” standard, and that neither the signature nor the pre-judgment interest statement violated the FDCPA.
On appeal, the 8th Circuit affirmed the dismissal of the claims, holding that the collection letter did not violate the FDCPA, Minnesota law did not prohibit the defendant from seeking pre-judgment interest, and the Minnesota Supreme Court has yet to determine whether the law “allows for the recovery of pre-judgment interest in a case such as this.” Furthermore, the FDCPA “was not meant to convert every violation of a state debt collection law into a federal violation,” the appellate court wrote, and that even if one of the signatories was not licensed in the state to collect debt, the defendant was legally licensed and did not engage in unfair or unconscionable conduct under the statute.
On April 15, the Texas Court of Appeals affirmed a grant of summary judgment in favor of appellees, a loan servicer and a national bank acting as a trustee, concluding, among other things, that the appellant homeowner failed to provide sufficient evidence to support her claims that the appellees violated the Texas Debt Collection Act (TDCA) and Texas Deceptive Trade Practices and Consumer Protection Act (DTPA). According to the opinion, the homeowner—who defaulted on a loan that was referred to foreclosure—filed a lawsuit to stop the foreclosure sale, alleging that the defendants made “fraudulent, deceptive, or misleading representations” under the TDCA by allegedly failing to (i) provide an accurate accounting of received payments and credits; (ii) apply received payments; (iii) clearly disclose “the name of the person to whom the debt had been assigned or was owed when making a demand for money”; (iv) provide requested documentation regarding the assignment of the promissory note; and (v) provide proper prior notice to the appellant concerning the foreclosure proceedings. Additionally, the appellant further alleged that the appellees violated the DTPA by using fraudulent, deceptive, or misleading representations in the collection of appellant’s debt. The trial court granted summary judgment in favor of the defendants, and the appellate court affirmed the trial court’s decision. With respect to the appellant’s TDCA claims, the appellate court held, among other things, that first, the homeowner failed to show that the appellees made affirmative misrepresentations concerning the loan’s character or amount; second, failure to apply payments is not specifically a “‘prohibited misleading practice’” under the TDCA; and third, the appellees provided evidence showing the homeowner was “appropriately notified” of her default, and that under the TDCA, “service is completed upon deposit in the mail, not actual receipt.” With respect to the appellant’s DTPA claim, the appellate court held that the DTPA only applies to the acquisition of goods and services by lease or purchase and that loan servicing, foreclosure, and loan modification activities are not goods or services under the DTPA.
- Amanda R. Lawrence to discuss "Navigating the challenges of the latest data protection regulations and proven protocols for breach prevention and response" at the ACI National Forum on Consumer Finance Class Actions and Government Enforcement
- Tim Lange to discuss "Ease your pain at the state level: Recommendations for navigating the licensing issues in the states" at the Online Lenders Alliance Compliance University
- Amanda R. Lawrence, Aaron C. Mahler, and Jonice Gray Tucker to discuss "Expanded role for the FTC ahead: Implications for bank and nonbank financial institutions" at an American Bar Association Banking Law Committee Webinar
- Buckley Webcast: Flirting with alternatives — Opportunities and challenges created by alternative data, modeling, and technology
- Daniel P. Stipano to discuss "Reporting requirements for credit unions: CTRs and SARs" at the National Association of Federally-Insured Credit Unions BSA Seminar
- Daniel P. Stipano and Moorari K. Shah to discuss "Vendor management: What is the NCUA looking for?" at the National Association of Federally-Insured Credit Unions BSA Seminar
- Sasha Leonhardt and John B. Williams to discuss "Privacy" at the National Association of Federally-Insured Credit Unions Summer Regulatory Compliance School
- Warren W. Traiger to discuss "CRA modernization" at the National Association of Industrial Bankers and the Utah Association of Financial Services Annual Convention
- Benjamin W. Hutten to discuss "Requirements for banking inherently high-risk relationships" at the Georgia Bankers Association BSA Experience Program
- Hank Asbill to discuss "Ethical guidance in conducting internal investigations – The intersection of Yates and Upjohn" at the American Bar Association Southeastern White Collar Crime Institute
- Brandy A. Hood to discuss "RESPA Section 8/referrals: How do you stay compliant?" at the New England Mortgage Bankers Conference
- Daniel P. Stipano to discuss "Risk management in enforcement actions: Managing risk or micromanaging it" at the American Bar Association Business Law Section Annual Meeting
- Daniel P. Stipano to discuss "Navigating the conflicting federal and state laws for doing business with cannabis companies" at the American Bar Association Business Law Section Annual Meeting
- Tim Lange to discuss "Services and value" at the North American Collection Agency Regulatory Association Annual Conference
- Amanda R. Lawrence to discuss "Data privacy litigation" at the Mortgage Bankers Association Regulatory Compliance Conference
- Brandy A. Hood to discuss "How to ace your TRID exam" at the Mortgage Bankers Association Regulatory Compliance Conference
- Jonice Gray Tucker to discuss "HMDA data is out, now what?" at the Mortgage Bankers Association Regulatory Compliance Conference
- Daniel P. Stipano to discuss "Assessing the CDD final rule: A year of transitions" at the ACAMS AML & Financial Crime Conference
- Daniel P. Stipano to discuss "Lessons learned from recent enforcement actions and CMPs" at the ACAMS AML & Financial Crime Conference
- Melissa Klimkiewicz to discuss "Navigating FHA rules and regs" at the Mortgage Bankers Association Regulatory Compliance Conference
- Kathryn L. Ryan to discuss "The state’s role in fintech: Providing an industry framework for innovation" at Lend360
- Amanda R. Lawrence to discuss "How to balance a successful (and stressful) career with greater personal well-being" at the American Bar Association Women in Litigation Joint CLE Conference