New York Federal Court Dismisses FDCPA Class Action, Holds Limitations Period Under Federal Communications Act Did Not Preempt State Limitations Period

The United States District Court for the Eastern District of New York recently dismissed a putative class action brought under the Fair Debt Collection Practices Act (the “FDCPA”) and held that the two-year limitations period under 47 USC § 415 for “all actions at law by carriers for recovery of their lawful charges” did not preempt New York’s statute of limitations for a lawsuit on a debt arising from an unpaid cell phone contract.  See Torres v. Midland Credit Mgmt., Inc., 2018 WL 2304771 (E.D.N.Y. May 21, 2018). 

California Federal Court Holds Alleged Misrepresentation in Loan Modification Agreement Did Not Violate FDCPA

The United States District Court for the Eastern District of California recently held that a borrower’s claim that a lender made a misrepresentation in a loan modification agreement did not violate the Fair Debt Collection Practices Act (“FDCPA”).  See Thomas v. Select Portfolio Servicing, Inc., 2018 WL 2356758 (E.D. Cal. May 24, 2018).  In the case, plaintiff purchased a home in 2001 and obtained a loan to purchase the property. 

Wisconsin Supreme Court Holds Second Foreclosure Action Was Not Barred, Despite First Action Having Been Dismissed with Prejudice

The Wisconsin Supreme Court recently held that a mortgage servicer was not barred from bringing a second foreclosure action after the first action was dismissed with prejudice.  See Federal Nat’l Mortg. Ass’n v. Thompson, 2018 WI 57 (Wis. 2018).  In the case, a mortgage servicer brought a foreclosure action against the defendant borrower in November 2010, alleging that the borrower defaulted on his April 2009 loan payment.  As part of the lawsuit, the servicer accelerated the debt.

New Jersey Appellate Court Holds Landowner Could Not Bring Trespass Claim Because He Lost Title to the Disputed Property When It Became Submerged

New Jersey’s Appellate Division recently affirmed the dismissal of a plaintiff landowner’s trespass claim against his neighbors because the disputed property was below the mean water line, plaintiff had not obtained a grant of riparian rights from the State, and plaintiff therefore did not have the authority to regulate the property.  See Rapisardi v. Estate of Lange, 2018 WL 14739181 (N.J. Super. Ct. App. Div. 2018).  In the case, plaintiff and defendants were neighbors, and their properties bordered a creek.  

California Appellate Court Holds Lender’s Deed of Trust Was an Enforceable First-Priority Lien Despite the Borrower Having Obtained Title Via a “Sham Transaction”

The California Court of Appeals recently held that a deed of trust was a first-priority lien on a property even though the borrower who executed the deed of trust obtained title via a “sham transaction” because the lender was a bona fide encumbrancer for value.  See Bank of New York Mellon v. Nazaryan, 2018 WL 1736622 (Cal. Ct. App. 2018).  There, defendant and her husband purchased the subject property in 1998.  In 2002, defendant transferred her interest in the property to her husband, and her husband executed a deed transferring the property to his sister that same day.

Ninth Circuit Holds Company Collecting Debts for Hospital Did Not Violate FDCPA Because It Was Meaningfully Involved in the Process

The United States Court of Appeals for the Ninth Circuit recently affirmed a district court’s grant of defendants’ motion for summary judgment and held that the defendant debt collection agency was meaningfully involved in the debt collection process and, as such, did not violate the Fair Debt Collection Practices Act (“FDCPA”).  See Echlin v. PeaceHealth, 887 F.3d 967 (9th Cir. 2018). 

Seventh Circuit Holds Debt Collector Violated FDCPA by Reporting Debts to Credit Reporting Agencies Without Informing Agencies That Debts Were Disputed

The United States Court of Appeals for the Seventh Circuit recently affirmed a district court’s grant of plaintiffs’ motions for summary judgment and held that the defendant debt collector violated the Fair Debt Collection Practices Act (“FDCPA”) by communicating plaintiffs’ debts to credit reporting agencies without stating that plaintiffs disputed the debts.  See Evans v. Portfolio Recovery Assocs., LLC, 889 F.3d 337 (7th Cir. 2018).  In the case, defendant attempted to collect debts owed by plaintiffs, and plaintiffs’ counsel sent a letter to defendant in response. 

New York Supreme Court Holds Mortgagee Does Not Need to Send 90-Day Foreclosure Notice if Mortgagee Is Not a “Lender, an Assignee, or a Mortgage Loan Servicer”

The Supreme Court of New York, Suffolk County, recently granted a foreclosing plaintiff summary judgment and held that plaintiff did not need to send a 90-day notice pursuant to RPAPL 1304 because plaintiff was not a lender, assignee, or mortgage loan servicer.  See NIC Holding Corp. v. Eisenegger, 59 Misc. 3d 1221(A) (N.Y. Sup. Ct. 2018). 

Third Circuit Holds One-Year FDCPA Statute of Limitations Begins to Run Upon Violation, Not When Consumer Discovers or Should Have Discovered It

In a decision contrary to the holdings of two other circuit courts, the United States Court of Appeals for the Third Circuit recently affirmed a district court’s decision and held that a plaintiff’s claim under the Fair Debt Collection Practices Act (“FDCPA”) was time barred because he brought his action more than one year after the violation occurred, despite the fact that he brought it within one year of discovering it.  See Rotkiske v. Klemm, 2018 WL 2209120 (3d Cir. May 15, 2018).