Friday, June 2, 2017

FYI: 9th Cir Holds City of LA's FHA "Discriminatory Lending" Claims Failed for Lack of "Robust" Causal Link

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court's summary judgment ruling in favor of a bank and against the City of Los Angeles ("City") on the City's claims that the bank violated section 3605(a) the federal Fair Housing Act ("FHA") through alleged discriminatory lending practices, and that the bank was unjustly enriched.

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

As you may recall, section 3605(a) of the FHA makes it unlawful for financial institutions "to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race [or] color." 42 U.S.C. § 3605(a).

The City alleged both disparate impact and disparate treatment theories of discrimination, but primarily presented evidence to support disparate impact.  The City also sued the bank for alleged unjust enrichment.

The trial court entered summary judgment in favor of the bank and against the City on all claims.  This appeal followed.

Initially, the Ninth Circuit observed that to establish a prima facie disparate impact claim the City must demonstrate a statistical disparity and show that a policy or policies caused the disparity.  Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2523 (2015).  Further, the City must show a "robust" causal link between the policy and the disparity.  Id.  If the City fails to demonstrate a causal connection, then it "cannot make out a prima facie case of disparate impact." Id.

The Ninth Circuit did not analyze whether the City showed a statistical racial disparity, because it found that the City did not show the required "robust" causal link necessary between any disparity and the banks's facially-neutral policy.  

The City alleged three facially-neutral policies caused a disparity: (1) the bank's compensation plan allegedly provided incentives to its loan officers to issue higher-cost loans; (2) the bank's marketing supposedly targeted low-income borrowers; and (3) the bank allegedly did not properly monitor its loans for any disparities.

The Ninth Circuit determined that the City did not show how that the first two policies were causally connected to the alleged racial disparity in a "robust" way, as required, because the policies "would affect borrowers equally regardless of race."

Additionally, the Ninth Circuit rejected the City's third claim that the bank did not adequately monitor any loans for disparities because this was "not a policy at all."

Thus, the Ninth Circuit held that the trial court correctly entered summary judgment in favor of the bank and against the City on the City's FHA claim because there was no genuine issue of material fact "as to a policy with a robust casual connection to any racial disparity."

The Ninth Circuit next turned to the City's unjust enrichment claim.  As you may recall, under California law, a court may award unjust enrichment "where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct." Durell v. Sharp Healthcare, 108 Cal. Rptr. 3d 682, 699 (Ct. App. 2010).

The Ninth Circuit concluded that the City's claimed lost tax revenue and increased spending on services did not confer any benefit upon the bank, as required to prevail on an unjust enrichment claim.  Thus, the Ninth Circuit held that the trial court correctly determined that there was no genuine issue of triable fact as to the City's unjust enrichment claim.

Accordingly, the Ninth Circuit affirmed the trial court's judgment order in favor of the bank and against the City.


Eric Tsai
Maurice Wutscher LLP 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Tuesday, May 30, 2017

FYI: 9th Cir Amends and Reinforces Its Ruling That Foreclosure Trustees Are Not FDCPA "Debt Collectors"

The U.S. Court of Appeals for the Ninth Circuit recently amended its opinion in Ho v. ReconTrust Co, maintaining and affirming its prior ruling that the trustee in a California non-judicial foreclosure did not qualify as a debt collector under the federal Fair Debt Collection Practices Act (FDCPA).

The amendments to the prior ruling among other things add that a California mortgage foreclosure trustee meets the FDCPA's exclusion from the term "debt collector" for entities whose activities are "incidental to … a bona fide escrow arrangement" at 15 U.S.C. § 1692a(6)(F).

The Ninth Circuit also removed its prior discussion of Sheriff v. Gillie, 136 S. Ct. 1594 (2016), replacing it with a discussion of foreclosure being a "traditional area of state concern" not to be superseded by federal law without "clear and manifest purpose of Congress," which the Court found lacking here.

Splitting from the Fourth and Sixth Circuits and ruling against the position argued by the CFPB in an amicus curiae brief, the Ninth Circuit explained that the California foreclosure trustee defendant was not attempting to collect money from the plaintiff when it sent her a notice of default and notice of sale so that its activities did not qualify as debt collection.  

This holding affirms the leading case of Hulse v. Owen Federal Bank, 195 F. Supp. 2d 1188 (D. Or. 2002), which has been the subject of much debate concerning whether non-judicial foreclosure constitutes debt collection.

The Ninth Circuit also vacated the trial court's dismissal of the TILA rescission claim based on its recent ruling that a claim for rescission under TILA does not require that a plaintiff allege the ability to repay the loan.

A link to the amended opinion is available at: Link to Opinion

The plaintiff took out a loan to buy a house and the loan was secured by a deed of trust. There are three parties to a deed of trust: (i) the lender, who is the trust beneficiary, (ii) the borrower, who as the trustor holds equitable title to the property, and (iii) the trustee, who is an agent for the lender and the borrower, holds legal title to the property, and is authorized to sell the property if the borrower fails to pay the loan.

The plaintiff missed payments on her mortgage and the trustee initiated a non-judicial foreclosure under California law. As required by the statute, the trustee mailed to plaintiff a notice of default stating how much plaintiff owed on the loan, that she had the right bring the account into good standing, and that it could be sold without any court action.  

When plaintiff didn't pay, the trustee mailed a notice of sale informing plaintiff that the house would be sold if she did not pay.  The sale never took place because the plaintiff received a loan modification.

However, she sued the trustee anyway claiming that it had violated the FDCPA by misrepresenting the amount of the debt and sought to rescind the mortgage transaction under TILA for purported fraud.  

The trial court granted the trustee's motion to dismiss, and the plaintiff appealed arguing that the notice of default and notice of sale were attempts to collect a debt because both threatened foreclosure unless plaintiff paid the mortgage.

As you may recall, the FDCPA defines the term "debt" to mean "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." 15 U.S.C. § 1692a(5). 

The Ninth Circuit interpreted this to be "synonymous" with the word "money" such that the trustee would only be liable if it attempted to collect money, directly or indirectly, from the plaintiff.  The Court found that the trustee did not do so because the "object of a non-judicial foreclosure is to retake and resell the security, not to collect money from the borrower" as California's non-judicial foreclosure law does not permit deficiency judgments following the foreclosure.  Thus, the non-judicial foreclosure extinguishes the debt, and any action taken to advance the non-judicial foreclosure is not an attempt to collect a debt as defined by the FDCPA.

The Ninth Circuit rejected the plaintiff's argument that the possibility of repossession of the property may induce the debtor to pay off the debt explaining that such an "inducement exists by virtue of the lien, regardless of whether foreclosure proceedings actually commence."  This is contrary to the Sixth Circuit's ruling in Glazer v. Chase Home Fin. LLC, 704 F.3d 453 (6h Cir. 2013) (holding that all "mortgage foreclosure is debt collection" under the FDCPA), and the Fourth Circuit's ruling in Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373 (4th Cir. 2006) (similar).

The Ninth Circuit noted that the Fourth Circuit "was more concerned with avoiding what it as viewed a "loophole in the [FDCPA]" than with following the [FDCPA's] text", and that the Sixth Circuit's ruling "rests entirely on the premise that "the ultimate purpose of foreclosure is the payment of money.""  

The Ninth Circuit distinguished its reasoning by pointing out that the FDCPA defines "debt" as an "obligation of the consumer to pay money", whereas a trustee in a California non-judicial foreclosure collects money from the purchaser, not the consumer, so that the money is not "debt" as defined by the FDCPA.

Rather, the Court held, sending notices of default and sale under California's non-judicial foreclosure law fits into the FDCPA's exception of enforcement of a security interest, at 15 U.S.C. § 1692a(6)(F). The Ninth Circuit explained that entities whose principal purpose is the enforcement of security interests can be debt collectors under the FDCPA but that "the enforcement of security interests is not always debt collection." This is consistent with the Fourth and Sixth Circuits' premise that an entity does not become a "debt collector" where its "only role in the debt collection process is the enforcement of a security interest."

The Ninth Circuit also differentiated its reasoning by pointing out that the trustee's right to enforce the security interest as a non-debt collector under the 1692a(6)(F) exception necessarily implied that the trustee must also be able to take the statutorily-required steps leading up to the sale as a non-debt collector, including sending the notice of default and notice of sale.  Such communications are necessary to effect the enforcement of the security interest and do not convert it into debt collection.  

The Court further held that a trustee's role under California law as the holder of legal title means that the trustee functions as an escrow, which further satisfies the 1692a(6)(F) exclusion from "debt collector" of an entity whose activities are "incidental to …a bona fide escrow arrangement." The Ninth Circuit also pointed out that the notices of default and sale protect the debtor by informing her of her rights and of the impending foreclosure and are not for the purpose of harassing the debtor into paying a debt she might not otherwise pay.

Concerning the TILA claim, the Court held that after the plaintiff's TILA claims had been dismissed, it had ruled that a mortgagor did not need to allege her ability to repay the loan in order to state a rescission claim under TILA. Thus, the plaintiff's TILA claims were reinstated.

The Ninth Circuit's holding distinguishes debt collection from the actions taken to initiate and facilitate a non-judicial foreclosure by pointing out that those actions do not constitute an attempt to collect money from the consumer because the purpose of a non-judicial foreclosure in California is to retake and resell the security on the loan resulting in collection of money from the purchaser of the property.

Thus, non-judicial foreclosure under California law falls under the FDCPA's 1692a(6)(F) exclusion from the definition of "debt collector."


Eric Tsai
Maurice Wutscher LLP 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Tuesday, May 16, 2017

FYI: Cal App Ct (3rd Dist) Holds Loan Mod Denial Letter Allowing Only 15 Days to Appeal Was "Material Violation" of HOBR

The Appellate Court of California, Third District, recently held that a mortgage servicer violated California's Homeowner Bill of Rights ("HOBR"), Civ. Code § 2923.6(d), when it sent the borrower a loan modification denial letter stating that the homeowner had only 15 days to appeal the denial.

In so ruling, the Appellate Court held that the servicer's denial letter was a material violation of section 2923.6, and therefore the homeowner alleged a valid cause of action for injunctive relief under section 2924.12.

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

The borrower ("Borrower") defaulted on his home mortgage and a notice of default was recorded.  Borrower submitted a complete application for a loan modification to the mortgage servicer ("Servicer") and asserted a significant change in financial conditions.  The Servicer denied Borrower's request for a loan modification.  The Servicer's denial letter stated that Borrower had 15 days to file an appeal of the decision.

As you may recall, section 2923.6(d) provides:

If the borrower's application for a first lien loan modification is denied, the borrower shall have at least 30 days from the date of the written denial to appeal the denial and to provide evidence that the mortgage servicer's determination was in error.

Section 2923.6(f)(1) states, in relevant part:

Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including the following … The amount of time from the date of the denial letter in which the borrower may request an appeal of the denial of the first lien loan modification and instructions regarding how to appeal the denial.

The borrower filed this action seeking injunctive relief.  In his complaint, Borrower alleged that the Servicer's denial letter was a material violation of section 2923.6(d), because it gave him only 15 days to appeal the denial, instead of 30 days, and therefore the trustee's sale could not legally proceed.

As you may recall, section 2924.12 allows for injunctive relief if there is a "material violation" of any of various statutes, including section 2923.6.  Thus, Borrower's complaint must allege a material violation of section 2923.6 to obtain injunctive relief.

The Servicer demurred to the complaint, arguing among other things that section 2923.6 prohibited the recording of a notice of default or notice of sale, or conducting a sale, unless certain requirements are met.  Because the Servicer did not actually conduct the sale within the appeal period, it argued that its denial letter did not violate section 2923.6.  The trial court sustained the Servicer's demurrer without leave to amend.

On appeal, Borrower argued that by sending a denial letter that purported to give him only 15 days to file an appeal, the Servicer committed a material violation of section 2923.6, because subdivision (f) of that section provides that such a denial letter must include "[t]he amount of time from the date of the denial in which the borrower may request an appeal," and subdivision (d) of that section specifies that "the borrower shall have at least 30 days from the date of the written denial to appeal the denial."

Essentially, Borrower argued that a denial letter that provides a period of time that is less than the 30 day minimum the law requires violates section 2923.6 and is ineffective.  Therefore, the Borrower argued, an injunction can issue under section 2924.12 to enjoin any trustee's sale until that violation is corrected by the issuance of a new denial letter that set forth a legally adequate period for appeal.

Borrower also argued that he was not obligated to file his notice of appeal to the denial of the loan modification until the Servicer provided a denial letter that fully complies in all material aspects with the mandates of section 2923.6.

The Servicer argued that it did not violate section 2923.6(f) because that subdivision requires only that the denial letter include "[t]he amount of time from the date of the denial letter in which the borrower may request an appeal," and the denial letter here did so – even if the amount of time specified in the letter was less than the minimum amount of time allowed by section 2923.6(d).

The Servicer further argued that it did not violate section 2923.6 because a trustee's sale was not held within the 30 day appeal period provided by subdivision (d), prohibited by both subdivision (c) of the statute – which applies while a "complete first lien loan modification application is pending" – and subdivision (e) of the statute – which applies once "the borrower's application for a first lien loan modification is denied."

Additionally, the Servicer argued that Borrower did not file an appeal in the 30 day statutory period, and thus, even if the denial letter was deficient, Borrower was not prejudiced by the letter.  

The Appellate Court rejected the Servicer's arguments, and held that section 2923.6 required the Servicer to advise Borrower in the denial letter how much time Borrower had to appeal.  And, the Court held, HOBR required the Servicer to give Borrow at least 30 days to appeal.  Thus, the Court held, to comply with the law, the denial letter must inform Borrower of an appeal period that is at least 30 days in length. 

In this case, the Servicer's denial letter did not comply with the law because it advised Borrower he had only 15 days to appeal.  Because the denial letter did not give Borrower the full amount of time to appeal provided by law, the Appellate Court held that Borrower's right to appeal was effectively diminished as a result.  Thus, the Court held, the Servicer's denial latter was a material violation of section 2923.6.

Moreover, the Appellate Court held that Borrower's failure to allege that the Servicer conducted a trial sale within the 30 day appeal period established only that Borrower did not allege a violation of section 2923.6(c) or (e).  But here, according to the Appellate Court, it was enough that Borrower alleged a violation of the 30 day appeal provisions of section 2923.6(d) and (f).

Relatedly, because the Appellate Court concluded that the Servicer's denial letter was a material violation of section 2923.6, Borrower was entitled to relief under section 2924.12. 

As you may recall, section 2924.12(a) provides that "[i]f a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section … 2923.6" and "[a]ny injunction shall remain in place and any trustee's sale shall be enjoined until the court determines that the mortgage Lender, mortgagee, trustee, beneficiary, or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief." 

Thus, according to the Appellate Court, the Borrower's failure to file an appeal from denial of his application did not invalidate his claim.  The Court held that nothing in the statutory scheme denied Borrower the right to relief under section 2924.12 because he did not file an appeal sooner.  Therefore, the Court held, Borrower's failure to file an appeal was irrelevant.

Accordingly, the Appellate Court reversed and remanded the case with instruction to vacate the trial court's order sustaining the Servicer's demurrer, and to enter a new order denying the demurrer.


Eric Tsai
Maurice Wutscher LLP 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Friday, May 12, 2017

FYI: 9th Cir Applies Anti-Deficiency Protections to Debtors' Bankruptcy Estate Where Property of the Estate is Sold in a Non-Judicial Foreclosure

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the Bankruptcy Appellate Panel’s determination that a creditor’s pre-bankruptcy, non-recourse lien on two debtors’ real property is extinguished following a non-judicial foreclosure sale.

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

In April 2009, two debtors (“Debtors”) purchased real property.  Rather than fund the purchase price and payoff the two existing liens on the real property, the Debtors executed a wrap-around mortgage in favor of the property seller.  The Debtors then funded the balance of the purchase price with a note (“Note”) secured by a deed of trust.

In March 2010, the real property seller filed a Chapter 11 bankruptcy petition, which was later converted into a Chapter 7 bankruptcy proceeding.

In June 2012, the Debtors also filed a Chapter 11 bankruptcy petition.  The trustee of the Seller’s bankruptcy estate (“Trustee”) timely filed a proof of claim for the two liens secured by the real property.

In October 2012, the bankruptcy court lifted the debtor’s bankruptcy stay to allow the most senior lienholder to foreclose on the real property.  The real property was sold at a foreclosure sale.  The foreclosure trustee sent the surplus proceeds from the sale to the Trustee.  The Trustee then filed an amended proof of claim for the unsecured balance of the Note.

The Debtors moved to disallow the amended claim on the ground that there was no longer any property in the estate on which there could be a recourse lien.  The bankruptcy court agreed. 

On appeal, the Bankruptcy Appellate Panel affirmed and held that the Seller’s non-recourse claim could not be transformed into a recourse claim under 11 U.S.C. § 1111(b).  The Bankruptcy Appellate Panel reasoned, “[a]lthough [the Trustee’s] original proof of claim may have asserted a claim secured by liens on property of the estate, as recognized in the amended proof of claim [the Trustee] filed, those liens were eliminated as a matter of law as a result of the foreclosure.”

As you may recall, 11 U.S.C. § 1111(b)(1)(A) provides in pertinent part:

A claim secured by a lien on property of the estate shall be allowed or disallowed under section 502 of this title the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse unless:
(i) the class of which such claim is a part elects … application of paragraph (2) of this subsection; or
(ii) such holder does not have such recourse and such property is sold under section 363 of this title or is to be sold under the plan.

On appeal to the Ninth Circuit, the trustee of Seller’s bankruptcy estate argued that the phrase “property of the estate” in Section 1111(b)(1)(A) refers to the property that existed at the time of filing the petition and that the bankruptcy court was required to fix his rights as of that date.

The Ninth Circuit rejected the Trustee’s argument.  The Ninth Circuit found that what must be determined as of the date of the filing of the petition is solely the amount of the claim.  The Ninth Circuit reasoned that the plain language of Section 1111(b) mandates that it cannot apply if the lien does not exist. 

The Court observed that under California law, the liens securing the Trustee’s claim were extinguished following the judicial foreclosure sale.  As a result, extending the protections of Section 1111(b) to the Trustee would allow the Trustee to assert a deficiency claim against the Debtors following the foreclosure sale, which would afford him more rights in bankruptcy than he would otherwise have under state law. 

The Ninth Circuit then noted that the purpose of section 1111(b) is to put the Chapter 11 debtor who wishes to retain collateral property in the same position that a person who purchased property subject to a mortgage lien would face in the non-bankruptcy context.  The Court explained that these purposes were not at issue in the Debtors’ proceeding because the Debtors were not seeking to retain the collateral property.

The Court held that section 1111(b)’s requirement that a creditor hold a “claim secured by a lien on the property of the estate” means that if a creditor’s claim, for any reason, ceases to be secured by a lien on property of the estate, the creditor can no longer transform a non-recourse claim into a recourse claim.

As a result, the Ninth Circuit held that section 1111(b) had no applicability to the Trustee’s claim.


Eric Tsai
Maurice Wutscher LLP 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Tuesday, May 2, 2017

FYI: 9th Cir Holds Consolidated "Bellweather-Trial" of Multiple Actions Did Not Meet CAFA's "Mass Action" Requirements

The U.S. Court of Appeals for the Ninth Circuit recently affirmed that consolidating multiple actions for pre-trial purposes and a bellweather-trial process is insufficient to justify the removal of those actions to federal court under the "mass action" provision of the Class Action Fairness Act ("CAFA"). 

In doing so, the Ninth Circuit rejected several arguments the removing defendant made based on language contained in the plaintiffs' motion to consolidate.  The Court concluded that even though, as consolidated, the matters satisfied the numerosity requirement of a "mass action" under CAFA, the plaintiffs did not intend a joint trial for all of the plaintiffs, which is also required under CAFA.  Therefore, according to the Ninth Circuit, the consolidated cases should not have been removed pursuant to CAFA's mass action provision. 

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

As you may recall, under CAFA, large multi-state class actions can be removed to federal court.  In addition, Congress made "mass actions" also removable based on similar standards as class actions.  Under CAFA, a "mass action" is defined as a civil action, other than a class action, "in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiff's claims involve common questions of law or fact."  See 28 U.S.C. § 1332(d)(11)(B)(i).

Here, the defendant was a manufacturer of medical devices facing eight different product liability lawsuits filed against it in state court. The plaintiffs requested that the matters be consolidated "for all pretrial purposes, including discovery and other proceedings, and the institution of a bellweather-trial process."  The plaintiffs further asserted that consolidation for a bellweather-trial process "will avoid unnecessary duplication of evidence and procedures in all of the actions, avoid the risk of inconsistent adjudications, and avoid many of the same witnesses testifying on common issues in all actions, as well as promote judicial economy and convenience." 

The defendant removed the matters to federal court based on the mass action provision in CAFA.  The plaintiffs challenged the removal. The trial court ruled that plaintiffs' consolidation motion did not propose a joint trial of plaintiffs' claims, as required under § 1332(d)(11)(B)(i), and remanded the matters back to state court. The Ninth Circuit accepted the defendant's immediate appeal.

On appeal, the Ninth Circuit first examined the language contained in the mass action provision of CAFA. According to the Court, the fact that more than 100 plaintiffs have sued the defendant in eight separate actions, standing alone, is not sufficient to trigger the mass action removal provision under CAFA.  Second, according to the Court, even if more than 100 plaintiffs in separate actions propose to consolidate their matters for pretrial purposes, that was also insufficient to trigger the removal provision under CAFA. 

The Ninth Circuit identified another provision in CAFA that factored into whether removal was appropriate. Specifically, the definition of a mass action under CAFA excludes any civil action in which the plaintiffs' claims "have been consolidated or coordinated solely for pretrial proceedings."  28 U.S.C. § 1332(d)(11)(B)(ii)(IV). Thus, according to the Court, the issue presented was, based on the language contained in plaintiffs' motion to consolidate, whether the plaintiffs' proposal for a bellweather-trial process constituted a proposal to try the claims jointly. If so, the Court held, the requirements of § 1332(d)(11)(B)(i) would be satisfied.

The Court acknowledged that there were two types of bellweather-trials to be held in class or mass actions. The first type is when the claims of a representative plaintiff or small group of plaintiffs are tried and the parties in the other cases agree they will be bound by the outcome of that trial, at least as to common issues. According to the Ninth Circuit, this was the least common type of the bellweather-trials.

The second, far more common, type of bellweather-trial is where the claims of a representative plaintiff or plaintiffs are tried, but the outcome is binding only on those parties to the trial, and not any of the other parties in other cases.  Instead, the parties in the other cases use the trial outcome for informational purposes and to aid in settlements. 

The Ninth Circuit determined that if plaintiffs proposed holding a bellweather-trial of the first type (i.e., the claims of a representative plaintiff or small group of plaintiffs are tried and the parties in the other cases agree they will be bound by the outcome of that trial, at least as to common issues), then the plaintiffs proposed a joint trial of their claims under § 1332(d)(11)(B)(i) because the findings in the bellweather-trial would have preclusive effect on the plaintiffs in the other cases. 

However, the Ninth Circuit held, if the plaintiffs proposed holding a bellweather-trial of the second type (i.e., where the claims of a representative plaintiff or plaintiffs are tried, but the outcome is binding only on those parties to the trial, and not any of the other parties in other cases), then the plaintiffs did not propose trying the plaintiffs' claims jointly under § 1332(d)(11)(B)(i).

The defendant argued that plaintiffs' motion to consolidate made several references that required the court to conclude plaintiffs were requesting a bellweather-trial of the first type. 

The first argument defendant made was that the plaintiffs moved to consolidate the matters pursuant to California Code of Civil Procedure § 1048(a).  According to the defendant, § 1048(a) did not allow consolidation for pretrial purposes only.  The Ninth Circuit rejected this argument, finding that no such language existed in that provision.  In addition, the Ninth Circuit concluded that § 1048 was amended in 1971 to mirrorFed.R.Civ.Pro. 42, which "has long been interpreted to allow for consolidation for pretrial purposes only."  The Court also found that the one case the defendant relied on in support of this argument actually acknowledged that § 1048(a) authorized two types of consolidation, one for purposes of trial and the other for all purposes, including trial.

The defendant's second argument in support of its assertion that plaintiffs intended for a bellweather-trial that had a preclusive effect was that one of the reasons plaintiffs gave for consolidating the matters was to "avoid the risk of inconsistent adjudications." The Ninth Circuit rejected this argument as well, finding that the plaintiffs could have been referring to several different issues related to "inconsistent adjudications," including evidentiary motions, dispositive motions and motions in limine. The Court determined that defendant did not satisfy its burden of eliminating alternative interpretations of "inconsistent adjudications," and, as a result, its second argument was not persuasive to the Court.

The final argument the defendant made was that plaintiffs' motion to consolidate defined "inconsistent adjudications" to mean "different results because tried before different judge and jury, etc."  The Ninth Circuit found that, when read in isolation, the plaintiffs' definition supported defendant's argument.  According to the Court, however, the defendant took the definition out of context.  The definition was given in a passage related to the general purposes of consolidation.  More importantly, the plaintiffs immediately followed the definition with a disclaimer stating they were not seeking consolidation "for purposes of a single trial to determine the outcome for all plaintiffs," and that they were seeking "a single judge to oversee and coordinate common discovery and pretrial proceedings."  The plaintiffs went on to state that the bellweather-trial "would likely prove an effective tool to resolution of the [other] cases."

Taken collectively, according the Ninth Circuit, the plaintiffs' motion to consolidate established plaintiffs were seeking a bellweather-trial of the limited-binding type, such that the plaintiffs did not propose trying the plaintiffs' claims jointly under § 1332(d)(11)(B)(i). 

Thus, in affirming the trial court's remand of the matters to state court, the Ninth Circuit concluded that plaintiffs' request for consolidation of pretrial proceedings does not trigger the mass action removal under CAFA, and that plaintiffs' request for a bellweather-trial process did not indicate they were seeking a trial whose result would have a preclusive effect on the plaintiffs in the other cases.  In the absence of such an intent, the Court held, removal jurisdiction under the mass action provision of CAFA did not exist. 


Eric Tsai
Maurice Wutscher LLP
 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Monday, April 24, 2017

FYI: 9th Cir Rejects Debtor's Attempt to Avoid SBA Judgment By Disclaiming Inheritance

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court's judgment in favor of the United States Small Business Administration ("SBA") in a Federal Debt Collection Procedures Act, 28 U.C.S. § 3001 et seq. ("FDCPA"), lawsuit the SBA filed against a loan guarantor to satisfy a default judgment assigned to it after the guarantor disclaimed an inheritance to avoid paying the judgment. 

The Federal Debt Collection Procedures Act, which governs the collection of money owed to the U.S. government, should not be confused with the federal Fair Debt Collection Practices Act, which is found at 15 U.S.C. § 1692 et seq. and governs how debt collectors may collect debts from consumers.

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

The SBA, a federal government agency, guaranteed 75% of a $175,000 small business loan between a private bank and a company, and the company's owner personally guaranteed the loan. The company defaulted on the loan, and the private bank sued the company and guarantor, obtaining a default a judgment against them. When neither the company nor the guarantor satisfied the default judgment, the bank assigned the default judgment to the SBA to honor is guaranty of the loan, which totaled over $300,000.

The guarantor later inherited a share of his deceased father's trust, which was valued at over $150,000. Instead of accepting the inheritance, he signed a disclaimer under California law that allowed him to renounce his share of the trust and legally pass it to his two children, thereby attempting to prevent his creditors from accessing his share of the trust.  The SBA filed a lawsuit under the FDCPA seeking to void the disclaimer under the FDCPA's prohibition of fraudulent transfers of property. 

The guarantor countered that California law permitted the disclaimer because it states that a disclaimer is not a voidable transfer, and that the default judgment obtained against the guarantor was not a "debt" as defined by the FDCPA.  The trial court disagreed, holding that the FDCPA pre-empted California law and that the default judgment was a debt within the meaning of the FDCPA. The guarantor appealed.

In affirming, the Ninth Circuit explained that the FDCPA's fraudulent transfer provision, 28 U.S.C. §3304(a), permits the federal government to void a fraudulent transfer by a debtor who owes a debt to the U.S. where the existence of the debt pre-dated the transfer, there was a transfer of assets, a lack of equivalent value in exchange of the transfer, and the debtor's insolvency at the time of the transfer. The parties' arguments focused on whether the guarantor's disclaimer qualified as a transfer of property and whether the default judgment constituted a debt within the meaning defined by the FDCPA. 

The guarantor argued that he had acted lawfully under the California Probate Code, which states that a disclaimer is not a voidable transfer. The Ninth Circuit held, however, that California law directly conflicted with the FDCPA, which defines "transfer" so as to include the guarantor's disclaimer because it involves "every mode…of disposing of or parting with an asset or an interest in an asset…". 28 U.S.C. §3301(6).  Thus, the Court held, the disclaimer was a transfer of property that could be voided under the FDCPA and the federal statute pre-empted state law, which the Ninth Circuit found was supported by U.S. Supreme Court precedent.

The guarantor's argument that the default judgment did not qualify as a debt under the FDCPA also failed.  The FDCPA defines "debt" as an amount owing to the U.S. government because of a direct loan or a loan insured or guaranteed by the U.S., includes a long list of various types of debts and financial obligations, and contains the catch-all phrase "other source of indebtedness."  28 U.S.C. §3002(3).  The Ninth Circuit found that the default judgment fit into the catch-all phrase and that limiting language attached to the catch-all phrase ("owing under the terms of a contract originally entered into by only persons other than the United States") did not prevent the default judgment from qualifying as "debt" under the statute. 

In reaching its ruling, the Ninth Circuit examined the statutory language and purpose of the FDCPA, the House report and legislative discussion on the statute, and case law interpreting limiting language in statutes. It reasoned that, looking beyond the label given to the debt and analyzing the source of the debt, especially the contract that the created the debt, led to the conclusion that the SBA was a party to the contract that created the debt and had statutory authority to pursue collection of it.

The Court rejected the guarantor's arguments that the default judgment had not been entered in favor of the U.S., but merely assigned to the SBA, that the financial obligation was merely a guaranty and not a loan, and that the SBA improperly sought to enforce the entire default judgment instead of only the portion related to the SBA loan. The Ninth Circuit found each of the arguments to be without merit or legal authority.

Accordingly, the Ninth Circuit affirmed the trial court's holding that the SBA was allowed to reach the guarantor's trust share because the FDCPA pre-empted California's disclaimer law and the default judgment was a debt within the statute.


Eric Tsai
Maurice Wutscher LLP
 
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Email: etsai@MauriceWutscher.com

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