Monday, September 22, 2014

FYI: Cal App Ct Rejects Borrower's Attempt to Void Foreclosure Sale Based on "Robo-Signing" Securitization Challenge Due to Lack of Resulting Prejudice

The California Court of Appeal, Third District, recently affirmed the dismissal of the borrower’s complaint, holding that a wrongful foreclosure cause of action based on alleged defects in the assignment and securitization of the mortgage loan requires the borrower to demonstrate resulting prejudice.

The Court also held that the Borrower lacked standing to challenge the transfer because she was not party to the assignment, nor was she the intended recipient of the assignment.

A copy of the opinion is available at: http://www.courts.ca.gov/opinions/documents/C071882.PDF

The borrower (“Borrower”) obtained a loan from lender (“Lender”) secured by a deed of trust.  After the Borrower defaulted on her loan, the Lender assigned the deed of trust, and the assignee substituted the trustee under the deed of trust.  Borrower alleged that the assignment was executed by a “robo-signer” without any “legal or corporate authority whatsoever.”  Additionally, Borrower alleged defects in the process by which her loan was securitized, leaving the foreclosing entities without title to the property and without authority to foreclose.

The trial court sustained the defendants’ demurrer without leave to amend, dismissing Borrower’s second amended complaint for wrongful foreclosure, quiet title, and declaratory relief. 

On appeal, the Third District began by analyzing whether the Borrower’s claims were barred by her failure to tender payment of the debt. 

As you may recall, California generally requires a homeowner in default to tender payment of the obligation in full in order to achieve standing to challenge nonjudicial foreclosure proceedings.  See, e.g., Lona v. Citibank, N.A. (2011) Cal.App.4th 89, 112.  However, the “tender rule” does not apply where the sale is void.  Id. at 113-14.  Because the Borrower alleged that the foreclosure sale was void due to defects in the securitization process or on account of the fraudulent substitution of trustee by a robo-signer, the Court held that the issues raised in Borrower’s complaint had to be resolved on the merits.

The Third District then turned to whether the Borrower had standing to challenge the alleged securitization of her loan.  Relying on Ramirez v. Kings Mortgage Services, Inc. (2012 E.D. Cal.), 2012 U.S. Dist. LEXIS 60583 and Sami v. Wells Fargo Bank (2012 N.D. Cal.) 2012 U.S. Dist. LEXIS 38466, the Appellate Court held that the Borrower lacked standing even if her loan and/or deed of trust were transferred to the securitization trust after the specified closing date, and despite the Borrower’s arguments that the assignment was void. 

In addition, California courts have refused to delay the nonjudicial foreclosure process by allowing trustor-debtors to pursue preemptive judicial actions to challenge the authority of the foreclosing beneficiary or its agent to initiate foreclosure.  See, e.g., Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 506.

The Appellate Court reasoned that whether the beneficiaries may or may not have changed, the Borrower remained liable on her debt and she failed to allege any facts to show that the purported defects in the foreclosure process interfered with her ability to repay, or that the original lender would not have foreclosed under the circumstances.  The Third District concluded that the Borrower’s wrongful foreclosure cause of action based on securitization was properly dismissed because of a lack of prejudice.

Next, the Third District examined the Borrower’s allegations that a “robo-signed” assignment is a void assignment, and a void assignment unraveled the entire nonjudicial foreclosure.  Relying on In re MERS Litigation, 2012 U.S. Dist. LEXIS 37134, 2012 WL 932625, at *3 (D. Ariz. 2012), the Appellate Court held that the Borrower lacked standing to challenge the transfer because she was not party to the assignment, nor was she the intended recipient of the assignment.  Thus, the Third District found that the trial court properly sustained the defendants’ demurrer to the wrongful foreclosure cause of action. 

Finally, the Third District held that the Borrowers’ final two causes of action were deficient on their face.  First, the property has been sold and there were no prospective claims appropriate for declaratory relief.  Second, the Borrower cannot quiet title in her favor without demonstrating paramount title and tender of the indebtedness. 

Accordingly, the Third District affirmed the judgment of dismissal.   



Eric Tsai
McGinnis Wutscher Beiramee LLP
 
Emerald Plaza
402 West Broadway, Suite 400
San Diego, CA 92101
Direct: (619) 955-6989
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@mwbllp.com

Admitted to practice law in California, Nevada and Oregon

          McGinnis Wutscher Beiramee LLP
CALIFORNIA   |   FLORIDA   |   ILLINOIS   |   INDIANA   |   WASHINGTON, D. C.

                                 www.mwbllp.com

Wednesday, September 17, 2014

FYI: 9th Cir Rules Bank Did Not Violate Automatic Stay by Placing Temporary Administrative Pledge on Debtors' Deposit Accounts

The U.S. Court of Appeals for the Ninth Circuit recently held that a bank did not willfully violate the automatic stay by placing a temporary administrative pledge on the debtors’ accounts in favor of the bankruptcy trustee.


The debtors filed a voluntary Chapter 7 bankruptcy in August 2009. The debtors were deposit account holders at a bank (Bank). They held four accounts with an aggregate balance of $17,075.06. They did not list two accounts in their original schedule of assets, and did not claim any exemption for account funds. The debtors listed Bank as an unsecured creditor for two debts totaling $52,000.00.

When Bank discovered that the debtors filed for Chapter 7 bankruptcy, it placed a temporary administrative pledge on their account.  Bank  then sought instruction from the Chapter 7 trustee regarding the distribution of funds.  Bank sent a letter to the trustee stating that upon the filing of a bankruptcy petition, the account funds became the property of the bankruptcy estate, payable only to the trustee or upon the trustee’s order.

The debtors claimed a portion of the funds were exempt under Nevada law. They filed an adversary class action against Bank alleging violations of 11 U.S.C. § 362(a)(3)’s automatic stay provision.  Bank filed a motion to dismiss for failure to state a claim.

The Bankruptcy Court granted Bank’s motion to dismiss with prejudice finding (1) that the debtors lacked standing to pursue any violation of the automatic stay because the trustee alone has standing to protect estate property; and (2) that debtors could not allege any injury to their interest because they had no right to possess estate property.

On appeal, the District Court held that if there is no objection to a debtor’s claimed exemption, the property is exempt upon the expiration of the thirty-day objection period. The District Court noted there is an exception to this rule where the particular exemption statute does not allow the debtor to exempt the entire property interest. The District Court found that the statute here, § 362(a)(3) permits a debtor to exempt an entire property interest.

According to the District Court, before the objections period ran, the property remained with the estate and Bank did not violate § 362(a)(3) during this period. After this period, the District Court held, the property passed out of the bankruptcy estate and Bank could not violate § 362(a)(3) because that section only applied to estate property. Accordingly, the District Court affirmed the Bankruptcy Court’s ruling dismissing the account holders’ allegations.

The account holders then appealed to the Ninth Circuit.  The Appellate Court first determined when the account funds revested in the debtors. In reaching its decision, the Ninth Circuit examined United States Supreme Court’s ruling in Schwab v. Reilly, 560 U.S. 770 (2010). In Schwab v. Reilly, the U.S. Supreme Court held that where a debtor claims an exemption in an amount equal to the entire amount of the property, the asset remains in the estate, and only an “interest” in the property is removed from the estate.

The Ninth Circuit relied on the general rule that exempt property immediately revests in the debtor. The Ninth Circuit read Schwab v. Reilly as an exception to the general rule and found that the debtors in question did not fall within the Schwab exception.

The Nevada Statute in question exempted only seventy-five percent of the disposable earnings of a debtor.  Thus, the Ninth Circuit found that the general rule, and not Schwab v. Reilly, applied.

Finding that the general rule applied, the Ninth Circuit ruled that the account funds automatically became part of the bankruptcy estate when the debtors filed the petition. When the debtors filed the account exemption, the funds did not become exempt because of Section 341(a)’s 30-day objection period. The funds revested in the debtors after the expiration of this period, when no objections were made.

The Ninth Circuit rejected the debtors’ argument that they were injured during the thirty day period when the Bank placed the hold on the funds. The Ninth Circuit held that there was no injury because during this time, the funds remained estate property. After the funds revested, Bank could not violate the automatic stay provision because it applied only to estate property, and because the property revested, it was no longer estate property. 

Accordingly, the Ninth Circuit affirmed the District Court’s ruling in favor of the Bank.



Eric Tsai
McGinnis Wutscher Beiramee LLP
 
Emerald Plaza
402 West Broadway, Suite 400
San Diego, CA 92101
Direct: (619) 955-6989
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@mwbllp.com

Admitted to practice law in California, Nevada and Oregon

          McGinnis Wutscher Beiramee LLP
CALIFORNIA   |   FLORIDA   |   ILLINOIS   |   INDIANA   |   WASHINGTON, D. C.

                                 www.mwbllp.com

Monday, September 8, 2014

FYI: 9th Cir Holds CAFA's "Local Controversy" Exception to Be Determined as of Date Action Became Removable

The U.S. Court of Appeals for the Ninth Circuit recently held that, for purpose of considering the “local controversy” exception to federal court jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”), the citizenship of a proposed plaintiff class is based on the operative complaint as of the date the case became removable.

A copy of the opinion is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/22/14-56075.pdf                                                                                                                                                                        

Two plaintiffs filed a class action complaint in the Superior Court of California asserting claims against bank (“Bank”) and several defendants.  One of the defendants removed the action to the United States District Court for the Central District of California, invoking federal jurisdiction under 28 U.S.C. § 1332(d)(2). 

The parties stipulated to sever one of the plaintiff’s claims and transferred them to the District of Arizona.  The District Court ordered the remaining plaintiff to amend her complaint to reflect the severance.  After filing her Second Amended Complaint, the plaintiff moved to remand the action to California state court under one of the exceptions to CAFA jurisdiction, 28 U.S.C. § 1332(d)(4).  The District Court granted the motion to remand under 28 U.S.C. § 1332(d)(3). 

As you may recall, the CAFA expanded federal jurisdiction over interstate class action lawsuits by, among other things, replacing the typical requirement of complete diversity with one of only minimal diversity.  Section 1332(d)(2) provides:


(2) The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which—

(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;

(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or

(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.


See 28 U.S.C. § 1332(d)(2).  However, Congress provided exceptions allowing certain class actions that would otherwise satisfy CAFA’s jurisdictional requirements to be remanded to state court.

Specifically for purposes here, pursuant to Section 1332(d)(4), the District Court shall decline to exercise jurisdiction under paragraph (2):
  
(A)

(i) over a class action in which—

(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;

(II) at least 1 defendant is a defendant—

(aa) from whom significant relief is sought by members of the plaintiff class;

(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and

(cc) who is a citizen of the State in which the action was originally filed; and

(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and

(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; or

(B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.


See 28 U.S.C. § 1332(d)(4).

In reversing the order for remand, the Ninth Circuit held that the District Court erred by determining citizenship of the plaintiff class as pled in plaintiff’s Second Amended Complaint filed in the District Court, after the action had been removed from state court and after the severance of the Arizona plaintiff’s claims.

Under the CAFA, “[c]itizenship of the members of the proposed plaintiff class shall be determined for purposes of paragraphs (2) through (6) as of the date of filing of the complaint or amended complaint … indicating the existence of Federal Jurisdiction.”  28 U.S.C. § 1332(d)(7). 

Relying on Mondragon v. Capital One Auto Fin., 736 F.3d 880 (9th Cir. 2013), the Ninth Circuit explained that the District Court should have determined the proposed plaintiff class based on plaintiff’s complaint “as of the date of the case became removable” for the purpose of considering the applicability of the exceptions to CAFA jurisdiction.  See Mondragon, 736 F.3d at 883.

Accordingly, the Ninth Circuit vacated the order remanding the action to state court, and sent the action back to District Court for further proceedings. 



Eric Tsai
McGinnis Wutscher Beiramee LLP
 
Emerald Plaza
402 West Broadway, Suite 400
San Diego, CA 92101
Direct: (619) 955-6989
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@mwbllp.com

Admitted to practice law in California, Nevada and Oregon

          McGinnis Wutscher Beiramee LLP
CALIFORNIA   |   FLORIDA   |   ILLINOIS   |   INDIANA   |   WASHINGTON, D. C.
                                 www.mwbllp.com

Friday, September 5, 2014

FYI: 9th Cir Rules Debt Collector May Violate FDCPA Even If Collection Letter Was Sent to Wrong Address and Was Never Received by Consumer

The U.S. Court of Appeals for the Ninth Circuit recently held that a plaintiff had Article III standing to assert claims for violation of the federal Fair Debt Collection Practices Act (“FDCPA”) based on communications he did not receive, because the alleged violation of his statutory right not to be the target of misleading debt collection communications constituted a cognizable injury. 

The Court also held the plaintiff had statutory standing under the FDCPA despite not having received the alleged communications.  The Court further held that the misidentification of a debt’s original creditor in a dunning letter and a subsequently filed court complaint constitutes a material misrepresentation in violation of the FDCPA. 


Plaintiff consumer (“Debtor”) purchased a computer from the Manufacturer.  At the time of the purchase, Debtor resided in New Mexico, but had the computer shipped to his parents’ home in California.  Debtor financed the computer’s purchase through the Manufacturer’s financial services plan and Manufacturer then sold and assigned the finance agreement (the “Debt”).  Debtor claims he paid the Loan in full within 2 years of purchasing the computer, but Manufacturer’s records indicated otherwise. 

The Debt was charged off and sold to defendant Creditor (“Creditor”).  Creditor transferred the Loan to its affiliated collection agency (“Collection Agency”), which mailed three dunning letters to Debtor.  Collection Agency then referred Debtor’s file to Defendant law firm (“Law Firm”), which also sent a dunning letter to Debtor.  Every dunning letter was mailed to Debtor’s parents’ California residence rather than Debtor’s New Mexico residence. 

After receiving no response to the letters, Law Firm initiated an action in state court (the “state complaint”).  It was during this litigation that Debtor first learned the dunning letters had been mailed to his parents’ California residence.  Law Firm subsequently dismissed the state complaint.

Debtor filed the instant action against Creditor, Law Firm, and Collection Agency alleging FDCPA violations as well as several state law violations.  Specifically, Debtor asserted the following FDCPA claims: (1) the letters at issue misidentified the Loan’s original creditor in violation of 15 U.S.C. § 1692e; and (2) the attorney who signed Law Firm’s dunning letter was not “meaningfully involved” in evaluating Debtor’s case in violation of 15 U.S.C. § 1692e(3).  Debtor sought statutory damages only, and conceded he suffered no pecuniary loss.

After surviving a motion to dismiss, the court certified a class of consumer plaintiffs.  Law Firm, Creditor, and Collection Agency then filed a motion for summary judgment, which was granted.  Debtor’s appeal followed.  It should be noted that Collection Agency and Creditor did not appear for the purposes of Debtor’s appeal.

As you may recall, 15 U.S.C. § 1692k provides that “any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person.”

Additionally, 15 U.S.C. § 1692e states that “a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”      

On appeal, Law Firm argued that Debtor lacked statutory and Article III standing because Debtor never actually received any of the dunning letters. 

As to statutory standing, Law Firm argued the FDCPA does not provide a cause of action for a consumer in Debtor’s position, despite the broad language of 15 U.S.C. § 1692k(a).  As to Article III standing, Law Firm argued that even if Debtor has standing under the FDCPA, Article III forbids it as consumers who never receive the offending collection communications have not suffered an “injury in fact.” 

As you may recall, in order for a plaintiff to have standing he or she must have suffered an “injury in fact,” meaning “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.  Lujan v. Defenders of Wildlife, 504 U.S. 560 (1975). 

An Article III injury in fact “may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”  Id. at 578 quoting Warth v. Seldin, 422 U.S. 490, 500 (1975).  However, there are two constitutional limitations on Congress’s ability to confer Article III standing.  “First, a plaintiff ‘must be among the injured, in the sense that she alleges the defendants violated her statutory rights.’”  Robins v. Spokeo, Inc., 742 F.3d 409, 413 (9th Cir. 2014) quoting Beaudry v. TeleCheck Servs., Inc., 579 F.3d 702, 707 (6th Cir. 2009).  “Second, the statutory right at issue must protect against ‘individual, rather than collective, harm.’”  Id. (quoting Beaudry, 579 F.3d at 707).

The gravamen of Law Firm’s Article III standing argument was that Debtor was not truly “among the injured.”  Specifically, Law Firm contended that Debtor did not suffer an “actual injury” because he never received the dunning letters that contained the alleged misleading representations.  Law Firm further argued that a consumer who does not receive a dunning letter cannot suffer pecuniary or emotional harm, “nor can such a consumer be hindered in deciding how to respond to the effort to collect the debt.”

The Ninth Circuit disagreed.  Relying on Havens Realty Corp. v. Coleman, 455 U.S. 363, (1982) (“Havens”), the Court explained it is not necessary to suffer pecuniary or emotional harms in finding “injury in fact.”  In Havens, the Court held that an African-American, who posed as an apartment hunter, possessed standing to bring suit for violations of the Fair Housing Act (“FHA”) based on the defendants’ false representations that no apartments in a particular housing complex were available, even though the plaintiff had no intention of actually renting an apartment from the defendants.  Id. at 374.  The Havens Court concluded that the plaintiff had Article III standing because the alleged injury to his statutorily created right to truthful housing information was a cognizable injury regardless of whether the plaintiff had any intention to reside in the defendants’ housing complex.  Id.  The Havens’ plaintiff possessed standing not because she had been “deprived . . . of the benefits that result from living in an integrated community,” but because her “statutorily created right to truthful housing information” had been infringed.  Id. at 374-75.

Applying the Havens’ holding to Debtor’s appeal, the Court explained the injury Debtor suffered “was a violation of his right not to be the target of misleading debt collection communications.”  This supposed violation of an alleged statutory right constituted a cognizable injury under Article III.  According  to the Ninth Circuit, when the injury in fact is a violation of a statutory right inferred from the existence of a private cause of action, the remaining elements of standing are usually met, and thus the Court held that Debtor had constitutional standing.  See Robins v. Spokeo, Inc., 742 F.3d 409, 414 (9th Cir. 2014).

The Court next addressed whether Debtor had statutory standing under the FDCPA.  The issue the Court examined was whether 15 U.S.C. § 1692e’s “use of any false, deceptive, or misleading representation. . . with respect to any person” language created a requirement that the person to whom the representation was addressed to actually had to receive it.

Law Firm contended that the term “representation” required the presence of two parties, the party making the representation and the party to whom the representation is made. 

In response, the Court stated the FDCPA’s text is aimed at a debt collector’s conduct, rather than its effect on the consumer.  Specifically, the Court stated that a debt collector violates the FDCPA just by sending a consumer a misleading letter and it is irrelevant whether some interceding condition -- including non-receipt of the letter, the consumer’s failure to read it, or the fact that the consumer is savvy enough not to be misled by it -- renders the misleading letter ineffective.

The Ninth Circuit next examined the FDCPA’s statutory construction to determine whether a debt collector’s conduct must have some effect on a consumer before a consumer has standing to bring an FDCPA action. 

The Court began by explaining a consumer possesses a cause of action under the FDCPA even when a defendant’s conduct does not cause a consumer to suffer any pecuniary or emotional harm.  Further, the Court stated the FDCPA does not even require that a plaintiff actually be misled or deceived by the debt collector’s representations, but rather “liability depends on whether the hypothetical ‘least sophisticated debtor’ likely would be misled.”  See Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 & n.2 (9th Cir. 2011).  The Court also noted the FDCPA awards successful consumers with both statutory damages and attorney fees meaning Congress “clearly intended that private enforcement actions would be the primacy enforcement tool of the Act.”  Baker v. G.C. Servs. Corp., 677 F.2d 775, 780–81 (9th Cir. 1982).

The Court thus held the FDCPA’s broad regulatory purpose is “effectuated by measuring the lawfulness of a debt collector’s conduct not by its impact on the particular consumer who happens to bring a lawsuit, but rather on its likely effect on the most vulnerable consumers -- the hypothetical ‘least sophisticated debtor’ -- in the marketplace.”  Therefore, Debtor had statutory standing under the FDCPA despite never receiving any of the dunning letters at the time they were sent. 

After determining Debtor had standing under Article III and the FDCPA, the Court turned its attention to Debtor’s actual FDCPA claims.

When assessing FDCPA liability the court is not “concerned with mere technical falsehoods that mislead no one, but instead with genuinely misleading statements that may frustrate a consumer’s ability to intelligently choose his or her response.”  Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010).

As to the three dunning letters sent by Collection Agency, Debtor alleged that they falsely identified the Loan’s original creditor and listed the incorrect account number.  Thus, the issue for the Court was whether the misidentification of the original creditor, and to a lesser extent, listing the incorrect account number, constituted a violation of 15 U.S.C. § 1692e.

Law Firm argued that the erroneous identification of Debtor’s original creditor did not violate the FDCPA because it was not material.  In support of its argument, Law Firm argued that the first two dunning letters referenced the computer Debtor bought and this was sufficient to inform even the least sophisticated debtor about the subject matter of the collection effort.  Law Firm further argued that if a consumer is genuinely puzzled by the mention of the incorrect original creditor, he or she could place a call to acquire additional information or to dispute the debt. 

The Ninth Circuit again disagreed, holding that, in the context of debt collection, the identity of a consumer’s original creditor “is a critical piece of information, and therefore its false identification in a dunning letter would be likely to mislead some consumers in a material way.”  According to the Ninth Circuit, the factual errors contained in a Creditor’s dunning letter could easily cause the least sophisticated debtor to suffer a disadvantage in determining how to respond to a debt collector’s collection effort. 

The Court provided an example whereby a consumer reasonably contacted the misidentified original creditor listed in the letter to attempt to obtain any records pertaining to the consumer’s debt.  However, the incorrectly listed original creditor would not have any responsive records or information and could not aid in identifying the correct original creditor.  According to the Ninth Circuit, even if the consumer eventually determined who the correct creditor was, the delay would have “cost him some portion of the thirty days that the FDCPA grants to consumers before having to respond to a collection notice, lest the debt collector be entitled to assume the validity of the debt.”

Thus, the Ninth Circuit held that the misidentification of Debtor’s original creditor would likely mislead consumers in a way that deprives them of their right to “understand, make informal decisions about, and participate fully and meaningfully in the debt collection process.”  Clark v. Capital Credit & Collection Servs. Inc., 460 F.3d 1162, 1171 (9th Cir. 2006).  As a result, the Court held that Collection Agency’s dunning letters contained misleading material statements that triggered liability under the FDCPA.

Law Firm attempted to argue that a confused consumer could place a phone call to the debt collector to clear up any confusion.  The Court disregarded this argument stating “consumers are under no obligation to seek explanation of confusing or misleading language in debt collection letters.”  Gonzales, 660 F.3d at 1062.  Moreover, allowing such an interpretation would eliminate the FDCPA’s prohibition of misleading representations, and a court “must avoid a construction which renders any language of the enactment superfluous.” Security Pac. Nat’l Bank v. Resolution Trust Corp., 63 F.3d 900, 904 (9th Cir. 1995).

The Court then turned its attention to the state court complaint filed by Law Firm.  The state court complaint contained the same misrepresentations as Collection Agency’s dunning letters in that it referenced the incorrect original creditor.  Based upon its determination that the Collection Agency’s dunning letters violated the FDCPA, the Court held the state court complaint constituted an FDCPA violation as well.  This was despite the fact the state court complaint twice referenced the correct original creditor.

The Court next examined whether Law Firm’s dunning letter violated the FDCPA.  This letter did reference the incorrect original creditor, but did not label it as the original creditor.  Instead, the letter listed the incorrect account number and original creditor in the “Re:” line item atop the body of the letter. 

Law Firm argued its dunning letter was less misleading than the dunning letters sent by Collection Agency due to the absence of a label providing the original creditor’s information and the fact it identified Creditor.  The Ninth Circuit disagreed with the Law Firm’s argument stating its letter was even more misleading than Collection Agency’s dunning letters because it lists Creditor as a “client” as opposed to the owner of the debt and again referenced the incorrect original creditor in the “Re:” subject line.  The Court explained that these mistakes give “the least sophisticated debtor even less of a clue as to how to investigate the claim being made against him, making it more likely that the consumer will waste valuable time and suffer confusion in his efforts to formulate a response.”  Therefore, according to the Ninth Circuit, Law Firm’s letter violated the FDCPA.

Debtor independently argued that Law Firm’s dunning letter violated the FDCPA because the lawyer who signed it was not “meaningfully involved,” and thus violated 15 U.S.C. § 1692e(3).  The Court declined to address this argument as it had already determined that Law Firm’s dunning letter contained material misrepresentations in violation of the FDCPA.  Thus, the Court determined there was no need to address Debtor’s “meaningful involvement” claim as a “violation of a single FDCPA provision is sufficient to establish liability,” Gonzales, 660 F.3d at 1064 n.6. 

Accordingly, the Court reversed the district court’s granting of summary judgment and instructed that judgment be entered in favor of Debtor. 



Eric Tsai
McGinnis Wutscher Beiramee LLP
 
Emerald Plaza
402 West Broadway, Suite 400
San Diego, CA 92101
Direct: (619) 955-6989
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@mwbllp.com

Admitted to practice law in California, Nevada and Oregon

          McGinnis Wutscher Beiramee LLP
CALIFORNIA   |   FLORIDA   |   ILLINOIS   |   INDIANA   |   WASHINGTON, D. C.
                                 www.mwbllp.com

Monday, September 1, 2014

FYI: 9th Cir Allows Borrower's Allegations of "Deceptive Loan Mod Efforts" Under Hawaii UDAP Statute to Proceed

The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a borrower’s claim of deceptive loan modification efforts under Hawaii’s UDAP statute that was premised only on the grounds that the servicer exceed its role as a mere lender/servicer and owed an independent duty of care to the borrower.


In August 2008, while still making timely payments, the borrower contacted the lender to inquire about loan modification, and was supposedly told that she would not qualify unless she was at least thirty (30) days behind on payments.  The borrower stopped making loan payments on her mortgage in May 2009, and subsequently applied for a loan modification. 

The borrower’s first two modification applications were eventually rejected after the servicer allegedly demanded further documentation, yet failed to respond to the borrower’s requests for updates.  After her third loan modification application was approved in August 2009, the servicer allegedly informed her that the agreement was incomplete due to a problem with the notary’s signature block. The borrower allegedly submitted re-notarized documents, but the servicer supposedly again rejected the documents and supposedly required the borrower to submit a fourth modification application.

After the borrower submitted her fourth application, the servicer allegedly assured her that they would not commence foreclosure proceedings while the modification process was underway.  Nonetheless, in August 2010, the servicer supposedly initiated foreclosure proceedings, thus rendering the borrower ineligible to apply for modification.

Hawaii’s unfair competition and practices statute (“Hawaii UDAP Statute”), Rev. Stat.  Section 480-2(a) provides, in full, that: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.”  For a consumer to obtain relief under for injury by unfair or deceptive act or practice under section 480-13(b)(1), a consumer must establish three elements: “(1) a violation of [section] 480-2; (2) injury to the consumer caused by such a violation; and (3) proof of the amount of damages.” Davis v. Wholesale Motors, Inc.,86 Haw. 405, 417 (Ct. App. 1997) (citing Ai, 61 Haw. at 617, and Cieri v. Leticia Query Realty, Inc., 80 Haw. 54, 61–62(1995)).

The borrower alleged that that the servicer supposedly violated the Hawaii UDAP Statute by: 1.) misinforming her that only borrowers at least 30 days behind on payment were eligible for modification; 2.) purposefully delaying efforts to negotiate modification and terminated her requests; 3.) misrepresenting the length of time to process the modification so that the borrower would end up in foreclosure, and;  4.) misrepresenting that foreclosure proceedings would not be brought while her modification remained pending, and backdating paperwork so it would falsely appear that foreclosure was commenced after denying the modification application.

The district court dismissed the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), concluding that : 1.) “lenders generally owe no duty ‘not to place borrowers in a loan even where there was a foreseeable risk borrowers would be unable to repay,’” or determine whether a borrower is qualified for a loan, and; 2.) financial institutions owe no duty of care to a borrower when their involvement in the loan does not exceed the scope of its role as a lender.  The borrower subsequently appealed the district court’s dismissal of her claim.

The Ninth Circuit found the district court’s rationale in dismissing the borrower's claim to be based solely upon on the ground that the borrower failed to allege that defendant-bank exceeded its role as a lender and owed an independent duty of care to plaintiff-borrower.  

However, the Appellate Court held that a district court’s evaluation of a borrower’s claim under Haw. Rev. Stat. 480-2 and 480-13 need only address whether the complaint adequately alleged that the lender used unfair or deceptive acts in its relationship with the borrower, without looking to negligence law to determine whether the lender breached a common law duty of care. 

Here, the Ninth Circuit held that the borrower’s complaint adequately alleged unfair and that unfair and deceptive acts by the servicer that resulted in damage to the borrower, and was sufficient to withstand a motion to dismiss.  

Moreover, according to the Ninth Circuit, the district court’s conclusion that the lender owes no duty to determine whether a borrower is qualified for a loan was not applicable to the borrower’s claim.  The Appellate Court reasoned that the claim was based upon allegations that the lender made material misrepresentations and purposefully delayed modification efforts, not on the theory that the lender placed her in a loan for which she was not qualified.

Thus, the Ninth Circuit reversed the district court’s dismissal of the borrower’s claim under the Hawaii UDAP Statute, and remanded to the lower court.



Eric Tsai
McGinnis Wutscher Beiramee LLP
 
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