Saturday, January 13, 2018

FYI: 9th Cir Rejects Attempt to Hold Lenders Liable for Promoter's Alleged TCPA Violations

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court's judgment in favor of several lender defendants in a putative TCPA class action, ruling that the defendants could not be vicariously liable under the TCPA for a promoter's text messages because the promoter was either not the defendants' agent or the defendants did not have knowledge concerning material facts about the agent's unlawful activities.

In so ruling, the Ninth Circuit held that mere knowledge that an agent is engaged in an otherwise commonplace marketing activity, such as text message marketing, would not lead a reasonable person to investigate whether the agent was engaging in unlawful activities relating to the text messaging.

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

As you may recall, the federal Telephone Consumer Protection Act (TCPA) makes it "unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States:  (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . (iii) to any . . . cellular telephone service."  47 U.S.C. § 227(b)(1)(A)(iii).

The Federal Communications Commission (FCC), pursuant to its rulemaking authority under the TCPA, has ruled that "[c]alls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call,"  In re Rules & Regulations Implementing the TCPA of 1991, 10 FCC Rcd. 12391, 12397 (1995), and has construed actions under the TCPA "to incorporate federal common law agency principles of vicarious liability,"  In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574, 6584 (2013).

On December 6, 2011, the plaintiff received an allegedly unwanted marketing text message from the promoter.  The promoter had entered into an agreement with a lead generating company to provide leads for three lenders.

The plaintiff did not respond to the promoter's text message or click on the link contained in the text message.  Instead, the promoter filed a putative class action against the promoter, the lead generation company, and the three lenders.  The plaintiff alleged that the lenders and the lead generation company were vicariously liable under the TCPA for the promoter's text messages.

The trial court granted summary judgment in favor of the lenders and the lead generating company.  The trial court rejected the plaintiff's argument that the lenders and the lead generating company had ratified the promoter's texting campaign by accepting leads while knowing that the promoter had used texts to generate those leads.  The plaintiff appealed.

On appeal, the plaintiff argued that the lenders and the lead generating company had ratified the promoter's unlawful texting by accepting the benefits of the text messages while unreasonably failing to investigate the promoter's texting methods.

The Ninth Circuit first noted that the FCC had relied on the Restatement (Third) of Agency as the federal common law of agency.  And, the Restatement defines "ratification" as "the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority."  Restatement (Third) of Agency § 4.01(1). "Ratification does not occur unless . . . the act is ratifiable as stated in § 4.03."  Id. § 4.01(3)(a).  An act is ratifiable "if the actor acted or purported to act as an agent on the person's behalf."  Id. § 4.03.

The Ninth Circuit also noted that even if a principal ratifies an agent's act, "[t]he principal is not bound by a ratification made without knowledge of material facts about the agent's act unless the principal chose to ratify with awareness that such knowledge was lacking."  Id. § 4.01 cmt b.

The Ninth Circuit then rejected the plaintiff's argument that the lenders could be vicariously liable for the promoter's text messages because the promoter had not entered into any contracts with the lenders, had not communicated with the lenders, and did not even know of the lenders involvement prior to the plaintiff's lawsuit.

The Ninth Circuit also affirmed the trial court's rejection of the plaintiff's claims against the lead generating company.  The Ninth Circuit found that the plaintiff had not produced any evidence that the lead generating company had actual knowledge that the promoter had sent text messages in violation of the TCPA.  In addition, the Ninth Circuit determined that the plaintiff had not offered any basis to infer that the promoter had assumed the risk of lack of knowledge, and did not present any evidence that the lead generating company "had knowledge of facts that would have led a reasonable person to investigate further," but ratified the promoter's acts anyway without investigation. Id. § 4.06 cmt. d.

In so ruling, the Ninth Circuit also rejected the plaintiff's contention that a reasonable person would investigate whether an agent was involved in unlawful activities merely because the agent was engaged in text message marketing.

 The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court's judgment in favor of several lender defendants in a putative TCPA class action, ruling that the defendants could not be vicariously liable under the TCPA for a promoter's text messages because the promoter was either not the defendants' agent or the defendants did not have knowledge concerning material facts about the agent's unlawful activities.

In so ruling, the Ninth Circuit held that mere knowledge that an agent is engaged in an otherwise commonplace marketing activity, such as text message marketing, would not lead a reasonable person to investigate whether the agent was engaging in unlawful activities relating to the text messaging.

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

As you may recall, the federal Telephone Consumer Protection Act (TCPA) makes it "unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States:  (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . (iii) to any . . . cellular telephone service."  47 U.S.C. § 227(b)(1)(A)(iii).

The Federal Communications Commission (FCC), pursuant to its rulemaking authority under the TCPA, has ruled that "[c]alls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call,"  In re Rules & Regulations Implementing the TCPA of 1991, 10 FCC Rcd. 12391, 12397 (1995), and has construed actions under the TCPA "to incorporate federal common law agency principles of vicarious liability,"  In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574, 6584 (2013).

On December 6, 2011, the plaintiff received an allegedly unwanted marketing text message from the promoter.  The promoter had entered into an agreement with a lead generating company to provide leads for three lenders.

The plaintiff did not respond to the promoter's text message or click on the link contained in the text message.  Instead, the promoter filed a putative class action against the promoter, the lead generation company, and the three lenders.  The plaintiff alleged that the lenders and the lead generation company were vicariously liable under the TCPA for the promoter's text messages.

The trial court granted summary judgment in favor of the lenders and the lead generating company.  The trial court rejected the plaintiff's argument that the lenders and the lead generating company had ratified the promoter's texting campaign by accepting leads while knowing that the promoter had used texts to generate those leads.  The plaintiff appealed.

On appeal, the plaintiff argued that the lenders and the lead generating company had ratified the promoter's unlawful texting by accepting the benefits of the text messages while unreasonably failing to investigate the promoter's texting methods.

The Ninth Circuit first noted that the FCC had relied on the Restatement (Third) of Agency as the federal common law of agency.  And, the Restatement defines "ratification" as "the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority."  Restatement (Third) of Agency § 4.01(1). "Ratification does not occur unless . . . the act is ratifiable as stated in § 4.03."  Id. § 4.01(3)(a).  An act is ratifiable "if the actor acted or purported to act as an agent on the person's behalf."  Id. § 4.03.

The Ninth Circuit also noted that even if a principal ratifies an agent's act, "[t]he principal is not bound by a ratification made without knowledge of material facts about the agent's act unless the principal chose to ratify with awareness that such knowledge was lacking."  Id. § 4.01 cmt b.

The Ninth Circuit then rejected the plaintiff's argument that the lenders could be vicariously liable for the promoter's text messages because the promoter had not entered into any contracts with the lenders, had not communicated with the lenders, and did not even know of the lenders involvement prior to the plaintiff's lawsuit.

The Ninth Circuit also affirmed the trial court's rejection of the plaintiff's claims against the lead generating company.  The Ninth Circuit found that the plaintiff had not produced any evidence that the lead generating company had actual knowledge that the promoter had sent text messages in violation of the TCPA.  In addition, the Ninth Circuit determined that the plaintiff had not offered any basis to infer that the promoter had assumed the risk of lack of knowledge, and did not present any evidence that the lead generating company "had knowledge of facts that would have led a reasonable person to investigate further," but ratified the promoter's acts anyway without investigation. Id. § 4.06 cmt. d.

In so ruling, the Ninth Circuit also rejected the plaintiff's contention that a reasonable person would investigate whether an agent was involved in unlawful activities merely because the agent was engaged in text message marketing.


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, January 8, 2018

FYI: Cal App Ct (3rd Dist) Holds Servicer May Owe Borrower Duty of Care as to Loan Mod Efforts

Adding to the growing split of authority among California's various state appellate courts, and among various federal courts in California, the Court of Appeal of the State of California, Third Appellate District, recently held that a loan servicer may owe a duty of care to a borrower through application of the "Biakanja" factors, even though its involvement in the loan does not exceed its conventional role. 

In so ruling, the Third District "assumed without deciding" that California Civil Code § 2923.6(g) offers an affirmative defense to a negligence claim in loan modification cases where the borrower submits multiple loan modification applications.

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

As you may recall, in order to determine whether a general duty of care exists, California courts balance the six factors used by the California Supreme Court in Biakanja v. Irving, 49 Cal.2d 647 (1958):  (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to him, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendants conduct and the injury suffered, (5) the moral blame attached to the defendant s conduct, and (6) the policy of preventing future harm."

In 2001, a borrower (Borrower) obtained a loan secured by a deed of trust to her home (Loan).  The deed of trust was later assigned to the defendant servicer (Servicer).  In 2010, Borrower was laid off from her job and sought a loan modification from Servicer.  In May 2010, Servicer allegedly told Borrower that it "would be unable to assist her unless she was at least three months delinquent in her monthly mortgage payments, and thus in default." 

In June 2010, Borrower defaulted on the Loan.  On August 1, 2010, Servicer allegedly informed Borrower's agent that Borrower might qualify for a HAMP loan modification.

On August 9, 2010, Servicer sent Borrower a letter approving Borrower's request for a repayment plan.  Borrower allegedly believed that she would receive a permanent loan modification upon completion of the repayment plan.  Borrower agreed to the repayment plan's terms.  After making three payments, Borrower contacted Servicer regarding the loan modification.  Servicer told Borrower to continue making payments.

On January 3, 2011, Servicer denied Borrower's application for a HAMP modification for failure to provide necessary documents.  Borrower then supposedly spoke with Servicer's representative who stated that Servicer denied Borrower's application because Borrower had failed to submit a statement from the State of California declaring her permanently disabled.  Allegedly, the State of California does not issue such a document, and Servicer supposedly "requested [this] nonexistent document to further delay the process and frustrate [Borrower]."

In July 2011, Borrower applied for another HAMP modification.  Servicer allegedly requested the same documents over and over again.  In particular, Servicer supposedly requested that Borrower produce her entire loan application on two separate occasions, requesting duplicates of other previously submitted documents by fax.

While her second application was pending, Borrower ceased receiving disability insurance and began receiving unemployment insurance.  Servicer then allegedly demanded that Borrower submit a new application and supporting documents.  In November 2011, Borrower returned to work.  Servicer supposedly again demanded additional documents due to the change in circumstances.  Borrower allegedly complied with Servicer's demands and submitted the requested documents. 

On January 18, 2012, Servicer allegedly denied Borrower's application for a HAMP modification, due to an excessive forbearance amount.  Borrower asserted that the forbearance amount would have been significantly less had she been given a permanent loan modification "over a year earlier as had been represented."

On April 6, 2012, one of Servicers representatives allegedly told Borrower that she "was approved for another trial loan modification and that upon completion, [she] would receive a permanent loan modification with a 2% fixed interest rate for five years and a principal reduction."  Borrower again submitted the requested documents but never received either a HAMP trial period plan or a permanent loan modification.

Borrower allegedly continued her effort to obtain a loan modification, without success.  In December 2012, Borrower filed for bankruptcy protection.

Borrower then filed suit against Servicer for intentional misrepresentation, negligent misrepresentation, breach of contract, promissory estoppel, negligence, intentional infliction of emotional distress, conversion, violations of the Unfair Competition Law and conspiracy.  Servicer demurred to – i.e., moved to dismiss -- Borrower's claims.  The trial court sustained each of Servicer's demurrers.

On appeal, the Third District Court of Appeal reversed the trial court's dismissal of Borrower's purported negligence claim.

In addressing Borrower's negligence claim, the Third District first acknowledged the general rule that lenders do not owe borrowers a duty of care unless their involvement in a transaction goes beyond their "conventional role as a mere lender of money."  However, the Court also pointed out that even when the lender is acting as a conventional lender, the no-duty rule is only a general rule.

The Court of Appeal then noted the split in decisions concerning "whether accepting documents for a loan modification is within the scope of a lender's conventional role as a mere lender of money, or whether, and under what circumstances, it can give rise to a duty of care with respect to the processing of the loan modification application."

As you may recall, a majority of federal district courts have found that a loan servicer does not owe a duty of care to a borrower when it reviews a loan modification application.  And, in a recent unpublished opinion, the Ninth Circuit also concluded that a lender does not have a duty to a loan modification applicant when the applicant's "negligence claims are based on allegations of delays in the processing of their loan modifications."  Anderson v. Deutsche Bank Nat'l, 649 Fed. App'x 550, 552 (9th Cir. 2016).

California Courts of Appeal have also reached different results where they addressed a Servicer's duty of care in reviewing loan modification applications.  Compare Lueras v. BAC Home Loans Servicing, LP 221 Cal.App.4th 49 (Cal. App. 4th Dist., 2013) (residential loan modification is a traditional lending activity, which does not give rise to a duty of care) with Alvarez v. BAC Home Loans Servicing, L.P. 228 Cal.App.4th 941 (Cal. App. 1st Dist., 2014) (servicer has no general duty to offer a loan modification, but a duty may arise when the servicer agrees to consider the borrower's loan modification application) and Daniels v. Select Portfolio Servicing, Inc., 246 Cal.App.4th 1150 (Cal. App. 6th Dist., 2016) (following Alvarez and applying Biakanja factors to conclude that lender owed borrowers a duty of care in the loan modification process).

In sustaining Servicer's demurrers to Borrower's negligence claim, the trial court had relied on Lueras in holding that "lenders do not have a common law duty of care to offer, consider, or approve a loan modification, to offer foreclosure alternatives, or to handle loans so as to prevent foreclosure."

In Lueras, the Fourth District Court of Appeal reasoned that "a loan modification is the renegotiation of loan terms, which falls squarely within the scope of a lending institution's conventional role as a lender of money."  The Lueras court then found that the Biakanja factors weighed against finding a duty of care, and it explained:  "If the modification was necessary due to the borrower's inability to repay the Loan, the borrower's harm, suffered from denial of a loan modification, would not be closely connected to the lender's conduct.  If the lender did not place the borrower in a position creating a need for a loan modification, then no moral blame would be attached to the lender's conduct."

The Court of Appeal disagreed with the trial court, and found Alvarez to be the better reasoned ruling. 

The Court of Appeal looked to Meixner v. Wells Fargo Bank, N.A., 101 F.Supp.3d 938 (E.D. Cal. 2015) where the federal district court reasoned:  "Alvarez identified an important distinction not addressed by the Lueras reasoning 'that the relationship differs between the lender and borrower at the time the borrower first obtained a loan versus the time the loan is modified. The parties are no longer in an arm's length transaction and thus should not be treated as such. While a loan modification is traditional lending, the parties are now in an established relationship. This relationship vastly differs from the one which exists when a borrower is seeking a loan from a lender because the borrower may seek a different lender if he does not like the terms of the loan."

The Third District then applied the Biakanja factors to Borrower's negligence claim. 

As to the first factor -- "the extent to which the transaction was intended to affect the plaintiff" -- the Court of Appeal found that the loan modification was intended to affect Borrower because the Servicer's decision on Borrower's application for a modification plan would likely determine whether or not Borrower could keep her house.  The Court concluded the first factor weighed in favor of finding a duty of care.

As to the second factor – "the foreseeability of harm to the plaintiff" -- the Third District held that the potential harm to borrower was readily foreseeable because the alleged mishandling of the documents deprived Plaintiff of the possibility of obtaining the requested relief, even though there was no guarantee that the modification would be granted had the application been properly processed.  The Court of Appeal also pointed out that Servicer increased the likelihood that Borrower would incur additional expenses of default during the lengthy loan modification process, thereby increasing the foreseeable potential harm. The Court concluded the second factor weighed in favor of finding a duty of care.

As to the third factor – "the degree of certainty that the plaintiff suffered injury" -- the Court of Appeal found that Borrower's alleged damage to credit, increased interest and arrears, and foregone opportunities to pursue unspecified other remedies constituted a sufficient injury and weighed in favor of finding a duty of care.

As to the fourth factor – "the closeness of the connection between the defendant's conduct and the injury suffered" -- the Third District noted that Borrower's default was imminent which could indicate that Borrower would have suffered damage to her credit and increased interest and arrears regardless of Servicer's conduct.  However, the Court of Appeal also recognized that Borrower was current on the Loan until she learned that she could not be considered for a loan modification unless she defaulted.  The Court of Appeal then concluded that the fourth Biakanja factor weighed in favor of finding a duty of care at the pleading stage.

As to the fifth factor – "the moral blame attached to the defendant's conduct" -- the Third District reasoned that a borrower's lack of bargaining power, coupled with the servicer's alleged incentive to unnecessarily prolong the loan modification process, "provide a moral imperative that those with the controlling hand be required to exercise reasonable care in their dealings with borrowers seeking a loan modification."  The Court of Appeal also noted that the "the moral blame attached to the defendant's conduct" is heightened when the defendant first induces a borrower to take a vulnerable position by defaulting and then subjects the borrower's loan application to a review process that does not meet the standard of ordinary care."  The Court of Appeal found that the fifth Biakanja factor weighed in favor of a finding that Servicer owed a duty of care to Borrower

As to the sixth and last factor – "the policy of preventing future harm" -- the Court of Appeal found imposing a duty of care on Servicer would advance the policy of preventing future harm.  The Third District noted that California's Homeowner's Bill of Rights demonstrates a rising trend to require lenders to deal reasonably with borrowers in default to try to effectuate a workable loan modification.

Notably, the Court of Appeal's application of the Biakanja factors signifies a reversal from its recent decision in Conroy v. Wells Fargo Bank, N.A., 13 Cal.App.5th 1012.  There, the Third District had held that where there is privity of contract, a duty of care does not lie in the mortgage loan context.  The Third District later vacated and de-published Conroy.

Notwithstanding its finding that Servicer owed Borrower a duty of care, the Court of Appeal did suggest that Servicer might have an affirmative defense to Borrower's negligence claim.  In particular, the Third District "assumed without deciding" that California Civil Code § 2923.6(g) offers an affirmative defense to a negligence claim in loan modification cases where the borrower submits multiple loan modification applications.

As you may recall, section 2923.6(g) provides:  "[T]he mortgage servicer shall not be obligated to evaluate applications from borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification", unless there has been a material change in the borrower s financial circumstances since the date of the borrower's previous application and that change is documented by the borrower and submitted to the mortgage servicer."

Nevertheless, the Court of Appeal found that Servicer's potential defense based upon Borrower's multiple loan modification applications was not appropriate on demurrer as it required an analysis of facts outside of Borrower's Complaint.

The Third District did affirm the trial court's dismissal of Borrower's purported conversion claim.  There, Borrower alleged that a 2006 assignment of the Deed of Trust was invalid due to defects in the securitization process.  As a result, Borrower alleged that the later assignment of the Deed of Trust to Servicer was invalid.

The Court of Appeal found that Borrower had not alleged that the Deed of Trust was securitized or assigned to a Trust in 2006.  As a result, the Court of Appeal affirmed the trial court's dismissal of Borrower's purported claim for conversion.

In an unpublished portion of its opinion, the Third District:  1) reversed the trial court's dismissal of Borrower s unfair competition claim; 2) affirmed the trial court's dismissal of Borrower's purported claims for intentional misrepresentation and promissory estoppel, but concluded that Borrower should have been given leave to amend; and, 3) affirmed the trial court's dismissal, without leave to amend, of Borrower's purported claims for negligent misrepresentation, breach of contract, and intentional infliction of emotional distress.

As you may recall, California's Unfair Competition Law (UCL) prohibits, and provides civil remedies for, unfair competition, which it defines as any unlawful, unfair, or fraudulent business act or practice.  To plead standing, a UCL plaintiff must (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact (i.e., economic injury) and (2) show that that economic injury was the result of the unfair business practice.

With respect to Borrower's purported claim for violation of the UCL, the Court of Appeal found that Borrower had standing based upon the postage fees which Borrower allegedly spent repeatedly re-submitting documents to Servicer.  The Court of Appeal held that these fees constituted "sufficient economic harm as a result of the alleged mishandling of her loan modification application materials."

The Third District also found that Borrower adequately alleged both unfair and fraudulent practices by alleging that Servicer "intentionally delayed the application process by demanding that [Borrower] submit the same documents over and over again, all in an attempt to increase arrears, penalties, and fees, resulting in an incurable default."

The Court of Appeal also reversed the trial court's refusal to grant Borrower leave to amend her purported promissory estoppel claim based upon Servicer's alleged 2012 oral promise to grant a trial plan and permanent modification.

In California, promissory estoppel requires: (1) a promise that is clear and unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) the reliance must be reasonable and foreseeable, and (4) the party asserting the estoppel must be injured by his or her reliance.

The Third District acknowledge that Borrower failed to allege either an unambiguous promise or reasonable reliance because a general promise to send some sort of trial loan modification agreement does not constitute a clear and unambiguous promise to provide any kind of mortgage relief.  And, the Court reasoned that no borrower could reasonably rely on an alleged promise to offer a loan modification on any terms, as the offered modification might not lower their monthly payments sufficiently to allow her to avoid default.

Nevertheless, the Third District held that Borrower should have been given leave to amend to state a viable cause of action, if she is able to do so.

Likewise, the Court of Appeal also reversed the trial court's dismissal of Borrower's intentional misrepresentation claim, based upon an alleged 2012 oral representation that Servicer would send Borrower a HAMP TPP.  The Court held that the trial court should have given Borrower leave to amend.

In particular, the Third District found that Borrower had adequately alleged that Servicer's representative made this promise without any intention of performing it, with the intent to induce Borrower to submit another application, thereby prolonging the loan modification process and allowing Servicer to charge additional interest, fees, and penalties.

However, the Court of Appeal acknowledged that Borrower had failed to adequately allege damages based upon her reliance on the supposed misrepresentation.  Instead, Borrower opaquely alleged that she might have pursued unspecified "alternate remedies" had she not relied on the false promise that she would receive a HAMP TPP.  Borrower also alleged that she suffered damage to her credit and increased arrears, fees, and penalties, while awaiting a loan modification.

The Third District observed that Borrower's Complaint suggested that Borrower had no alternative remedies, due to her poor finances.  And, the Court of Appeal noted that Borrower had not alleged how Servicer's representations could have caused her damages, as opposed to her default on the Loan.  Nevertheless, the Court of Appeal determined that Borrower should have been given leave to explain her damages and overcome her pleadings deficiencies.

The Court of Appeal did affirm the trial court's dismissal of Borrower's purported negligent misrepresentation claim.  The Court found that Borrower had merely alleged that Servicer negligently promised to modify her Loan.  And, California does not recognize a cause of action for negligent false promise.

The Third District also found that Borrower failed to allege that Servicer agreed to modify her Loan.  The Court noted that Borrowers alleged agreement to provide a TPP on terms to be specified in the future amounts to an unenforceable "agreement to agree."

Finally, the Court of Appeal affirmed the trial court's dismissal of Borrower 's purported claim for intentional infliction of emotional distress ("IIED").

As you may recall, in order to state a claim for IIED, a plaintiff must allege:  (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.

The Court of Appeal found that the alleged mishandling of Borrower's loan modification applications did not constitute conduct so extreme, outrageous, or outside the bounds of civilized society as to support a cause of action for intentional infliction of emotional distress.


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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Wednesday, January 3, 2018

FYI: 9th Cir Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity "Amount in Controversy"

The U.S. Court of Appeals for the Ninth Circuit recently held that the trial court did not have subject matter jurisdiction based upon diversity over claims which sought a temporary stay of a foreclosure sale pending the review of a loan modification application because the amount of controversy did not exceed $75,000. 

In so ruling, the Court held that, for claims which merely seek a temporary stay of a foreclosure sale, the amount in controversy is not the value of the underlying loan. 

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

Following a borrower's default on her mortgage loan, the mortgage loan servicer provided a notice of default and scheduled the property for non-judicial foreclosure sale.   Prior to the sale, the borrower filed a complaint in state court asserting alleged violations of the California Homeowners Bill of Rights (HBOR) and of California's unfair competition law, Cal. Bus. & Prof. Code § 17200, et seq. 

The borrower's complaint did not seek a specific dollar amount in damages, and instead, it prayed for an "order enjoining the sale of the Subject property while Plaintiff's loan modification application is under review" plus compensatory damages and costs, and the potential award of punitive damages for an intentional, reckless or willful violation. 

The servicer filed a notice of removal to the United States District Court based upon diversity jurisdiction.  In the notice of removal, the servicer alleged that complete diversity of citizenship existed and the amount in controversy exceeded $75,000 based upon the value of the unpaid principal balance for the mortgage loan.

The trial court denied the borrower's motion to remand concluding that the borrower's gains from the temporary injunction would surely exceed $75,000 in light of the value of the property and the amount of the indebtedness.

Subsequently, the trial court granted the servicer's motion to dismiss for failure to state a claim, and the borrower filed her appeal.

Although the borrower did not directly appeal the lower court's denial of her motion to remand, as noted by the Ninth Circuit, federal courts have an "independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbgaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

As you may recall, federal courts are courts of limited jurisdiction and the burden of establishing its jurisdiction lies with the party asserting its existence.   As noted by the Ninth Circuit, "this burden is particularly stringent for removing defendants because 'the removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand,'" quoting Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009).

28 U.S.C. § 1332 provides federal courts with subject matter jurisdiction over diversity claims where the amount in controversy exceeds $75,000 and the parties are citizens of different states.

The Ninth Circuit determined there was no issue or dispute over the complete diversity of citizenship between the parties, and narrowly framed the issue on appeal solely as whether value of the indebtedness was a proper measure of the amount in controversy in a complaint seeking only a temporary injunction against foreclosure while a loan modification application is pending.

In answering this question, the Court begins it analysis with the general rule that in actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation.  Further explaining that the "either viewpoint" rule provides that the test for determining the amount in controversy is whether the pecuniary result to either party "i.e. the benefit to the plaintiff or the cost to the defendant" is sufficient to cross the jurisdictional bar.

In the case at hand, the Ninth Circuit explained that neither the benefit to the borrower or the cost to the servicer equaled the amount of indebtedness.  The Court reasoned that the "length of the temporary injunction would almost certainly be minimal", and almost fully in the servicer's control as it is based upon the time required to evaluate the borrower's loan modification application in support of its determination of a minimal cost to the servicer. 

Specifically, the Court determined that the only pecuniary harm that would be suffered by the servicer was the cost of having to review the borrower's loan modification application and of having to delay foreclosure for the length of that review.  Similarly, the Court reasoned that the only pecuniary benefit to the borrower would be derived from temporarily retaining possession of the property while the servicer reviews the application. 

Thus, the Court concluded that the amounts in controversy under the "either viewpoint" test did not equal the amount of the indebtedness because neither outcome resulted in the borrower being relieved of the obligation to repay to the debt to the servicer.

The Court specifically noted that its determination was not inconsistent with and did not overrule prior Ninth Circuit case law which established that in cases seeking a permanent injunction or declaration of quiet title that the amount in controversy was properly established by the value of the property or amount of indebtedness. See Chapman v. Deutsche Bank Nat l Trust Co., 651 F.3d 1039 (9th Cir. 2011); Garfinkle v. Wells Fargo Bank, 483 F.2d 1074 (9th Cir. 1973).  In so noting, the Court distinguished the present case and restricted its holding to cases where the "object of the litigation is only a temporary injunction while [the servicer] considers [the borrower's] loan modification application."

The Ninth Circuit further clarified that it's holding should not be construed such that every case seeking a temporary injunction of a foreclosure sale could not meet the amount in controversy requirement, only that the proper valuation of the amount in controversy was not the value of the property or the amount of the indebtedness.  

As an example, the Court stated that the jurisdictional limit could be established by other measures such as "the transactional costs to the lender of delaying foreclosure or a fair rental value of the property during the pendency of the injunction."  In the case at hand, the servicer failed to assert these claims in support of removal.  

The Court found that the servicer had failed to establish the amounts in controversy exceeded $75,000 as required, and consequently, the trial court lacked subject matter jurisdiction and its denial of the motion to remand was in error.

Having determined that the lower court lacked subject matter jurisdiction the Ninth Circuit did not address the merits of the motion to dismiss, and the trial court's decision was vacated and remanded with direction to return the matter to the state court.



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, December 8, 2017

FYI: 9th Cir Holds FDCPA Preempts State Judgment Execution Laws

The U.S. Court of Appeals for the Ninth Circuit recently held that the federal Fair Debt Collection Practices Act (FDCPA) preempted state judgment execution law insofar as it permitted debt collectors to execute on FDCPA claims.

In so ruling, the Court held that debt collectors cannot evade the restrictions of the by obtaining a collection judgment against the debtor, and then forcing the debtor's FDCPA claims to be auctioned, acquiring the claims, and dismissing them. 

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

The debtor incurred a medical debt, and then failed to pay it as agreed.  A debt collector sought to collect on that debt.  The debt collector sent the debtor a letter, along with a summons and state court complaint.  The complaint stated that the debtor could "[d]ispute the validity of this debt" within 30 days, but that failing to do so would result in a presumption of validity.  However, separately, in small print, the summons indicated that in order to defend the lawsuit, the debtor must file a formal written response with the court within 20 days.

The debtor filed suit and alleged that the debt collector had violated the FDCPA by stating that the debtor could dispute the debt within 30 days of receipt, when the actual summons required the filing of an answer within 20 days.

The debt collector obtained a state court judgment against the debtor for the outstanding medical debt, plus costs, prejudgment interest, and attorneys' fees.  The debt collector then requested that the state court issue a writ of execution and direct the sheriff to collect all "claims for relief, causes of action, things in action, and choses in action in any lawsuit pending," including the debtor's rights in the FDCPA lawsuit. 

The state court issued the writ.  The sheriff sold the debtor's interests in the FDCPA lawsuit.  And, the debt collector acquired the debtor's interests in the FDCPA lawsuit as the successful bidder.

The debt collector then moved to dismiss the FDCPA lawsuit for lack of standing.  The trial court granted the debt collector's motion and dismissed the FDCPA lawsuit.  This appeal followed.

On appeal, the debt collector argued that because the FDCPA does not speak directly to the execution of claims, there can be no federal preemption. 

As you may recall, federal law pre-empts state law where it directly conflicts with the state law.  Such conflict occurs when the operation of state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," or when it" interferes with the methods by which the federal statute was designed to reach [its] goal."

The Ninth Circuit rejected the debt collector's argument and explained that conflict preemption exists where there is an actual conflict, even when Congress has not made an express statement of pre-emptive intent. 

The Ninth Circuit then noted that the FDCPA's purpose is "to protect vulnerable and unsophisticated debtors from abuse, harassment, and deceptive debt collection practices" and that section 1692n of the FDCPA does expressly preempt state laws "to the extent that those laws are inconsistent" with the FDCPA.

The Ninth Circuit found that the FDCPA preempted the state's claim execution law insofar as it permitted debt collectors to execute on FDCPA claims.  The Ninth Circuit reasoned that to allow otherwise would thwart enforcement of the FDCPA and undermine its purpose.


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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