N.J. Federal Court Denies Motion for Preliminary Injunction Seeking to Enforce Restrictive Covenant Prohibiting Sports Wagering, But Still Finds Covenant Likely Is Enforceable

The United States District Court for the District of New Jersey recently found that the defendant could not obtain a preliminary injunction prohibiting the plaintiff from operating a sports wagering business on the plaintiff’s property due to a restrictive covenant, but that the defendant still showed a likelihood of success on the merits.  See Cherry Hill Towne Ctr. Partners, LLC v. GS Park Racing, L.P., 2019 WL 4187836 (D.N.J. Sept. 4, 2019). 

New York Amends Confession of Judgment Statute to Prohibit Confessions Filed Against Out-of-State Debtors

On August 30, 2019, Governor Cuomo signed legislation that amended CPLR § 3218 to prevent creditors from filing confessions of judgment in New York against out-of-state debtors.  Under the prior version of the statute, a creditor could enter a confession of judgment against a debtor based upon an affidavit signed by the debtor “stating the sum for which judgment may be entered, authorizing the entry of judgment, and stating the county where the defendant resides or if he is a non-resident, the county in which entry is authorized.” 

New Jersey Appellate Court Holds Certification of Amount Due and Certification of Diligent Inquiry Sufficient to Foreclose

The New Jersey Appellate Division recently denied a homeowner’s argument that a lender’s final judgment of foreclosure submission was improper because the lender submitted certifications of amount due and of diligent inquiry, rather than affidavits.  See Wells Fargo Bank, NA, v. Owens, 2019 WL 4184096 (N.J. Super. Ct. App. Div. Sept. 4, 2019).  In the case, the lender obtained a final judgment of foreclosure and went to sale. 

Delaware Court Dismisses Bad Faith Claim Against Title Insurer and Claims Against Title Insurer’s Parent Company

A Delaware court recently dismissed a bad faith claim against a title insurance company after holding that Michigan law applied to the dispute over a property in Michigan, and that Michigan does not recognize a claim for bad faith breach of an insurance contract.  The Court further dismissed the action as against the insurer’s parent company, who was not a party to the policy. 

New York Federal Court Denies Motion to Dismiss Claims Alleging that Credit Union Improperly Charged Customers “Overdraft Fees” When Sufficient Funds Existed in Customer’s Account to Cover the Transaction

The United States District Court for the Northern District of New York recently denied a federal credit union’s motion to dismiss a class action complaint alleging that the credit union violated contract law, Regulation E of the Electronic Fund Transfer Act (15 U.S.C.A. §§ 1693 et seq.) (“Regulation E”), and Section 349 of New York General Business Law (“N.Y.G.B.L. § 349”) by charging its customers overdraft fees even when their accounts contained enough funds to cover the transactions.

New York Federal Court Denies Debt Collector’s Motion to Dismiss FDCPA Action, Holds Debt Collection Letters Did Not Comply with Safe Harbor Rule

The United States District Court for the Eastern District of New York recently denied a debt collector’s motion to dismiss an action under the Fair Debt Collection Practices Act (“FDCPA”) alleging that collection letters sent—with no mention of interest accrual or late payment fees—violates the Act.  See Watson v. Midland Credit Mgmt., Inc., 2019 WL 2527295 (E.D.N.Y. June 19, 2019). 

Third Circuit Affirms Decision Holding That Title Insurance Company Did Not Have Duty to Defend Encroachment Claim

The United States Court of Appeals for the Third Circuit recently affirmed a lower court and held that an insured was not entitled to coverage for a litigation involving a portion of the insured’s property that encroached onto a neighbor’s property.  See 631 N. Broad St., LP v. Commonwealth Land Title Ins. Co., 2019 WL 3383878 (3rd Cir. July 26, 2019). 

Seventh Circuit Holds Secure Email Did Not Constitute a Communication Under the FDCPA, and Link to Validation Notice Was Improper

The United States Court of Appeals for the Seventh Circuit recently held that a debt collector’s secure emails did not constitute an initial communication under the Fair Debt Collection Practices Act (“FDCPA”) and, even if they did, that the validation notices linked from the emails were not effectively given to the debtor.  See Lavallee v. Med-1 Sols., LLC, 2019 WL 3720875 (7th Cir. Aug. 8, 2019).

Sixth Circuit Affirms Dismissal of RESPA Claim, Holds Plaintiff Homeowner Had No Standing Because She Was Not Obligated Under the Loan

The United States Court of Appeals for the Sixth Circuit recently affirmed the dismissal of a homeowner’s claims under the Real Estate Settlement Procedures Act (“RESPA”), finding that the plaintiff-mortgagor was not obligated under the loan and therefore had no standing to bring the claim.  See Keen v. Helson, 930 F.3d 799 (6th Cir. 2019).  In the case, a husband and wife received a loan to purchase a home.