This week, we have another Fair Debt Collection Practice Act (FDCPA) claim in which the Eleventh Circuit Court of Appeals ruled that homeowners could sue attorneys acting as debt collectors.
Yes, attorneys are being sued, and you don't want to be one of them, so you need to heed the court’s warnings.
It’s okay for a borrower to whine and complain if a bank denies his request for a mortgage loan modification, but doesn't mean that he has a claim that can withstand a 12(b)(6) motion.
This week, the Eleventh Circuit Court of Appeals ruled that the federal Home Affordable Modification Program (HAMP) does not give a homeowner a private cause of action against a bank.
We suspect that banks deduct multiple transactions from a customer’s checking account in the order of greatest amount to least amount. If the customer overdrafts, that would maximize the bank’s profits.
In college, we occasionally overdrafted because we were too absent-minded busy to keep a check register; Dad was not pleased. Whenever we received a bank statement, it was obvious that our bank had manipulated same-day withdrawals in the way that would yield the most fees.
Maxine Given sued her bank, M&T Bank Corporation, for similar behavior. Last week, the Eleventh Circuit Court of Appeals kicked Given's claim out of court and into arbitration under the terms of the M&T banking agreement delegation provision.
Cautionary tale: If your client files a copyright lawsuit against a major corporation and loses, he could be stuck paying a small fortune in attorney’s fees.
Rafael Vergara Hermosilla sued Coca-Cola Company for copyright infringement, claiming that Coca-Cola used his Spanish adaptation of a song in its advertising without his permission. The district court ruled that Vergara had assigned his copyright interest in the adaptation to Universal Music Latin America, which in turn had assigned its rights to the adaptation to Coca-Cola.
The Eleventh Circuit Court of Appeals recently affirmed the decision.
The Eleventh Circuit Court of Appeals recently ruled that a district court abused its discretion in issuing a permanent injunction barring litigation in a matter resolved through a class action settlement agreement.
Karon and Chip Edleson, on behalf of themselves and a national class, filed a complaint against American Home Shield, an insurance company, in a California court, alleging that American Home Shield had wrongfully denied claims, and had failed to supervise its third-party contractors. The parties entered a settlement agreement, but the California court rejected it.
FDCPA Action Concerning Debt Collection Calls
In Oppenheim v. I.C. Sys., Inc., No. 10-12461, a Federal Debt Collection Practices Act (FDCPA) action concerning a series of telephone calls defendant made to plaintiff in an attempt to collect funds, the court affirmed the denial of summary judgment to defendant where 1) the mere fact that plaintiff consumed PayPal's services in order to facilitate a separate sale did not thereby negate his consumer status with respect to PayPal; 2) the district court correctly distinguished Arnold because plaintiff's payment obligation did arise from a transaction; and 3) since the district court did not err in denying defendant summary judgment on plaintiff's FDCPA claim, the court also correctly denied defendant summary judgment on plaintiff's Florida Consumer Collection Practices Act claim.
Denial of Motion to Compel Arbitration Reversed
In Board of Trustees v. Citigroup Global Markets Inc., No. 09-13451, an appeal from the district court's denial of defendant's motion to compel arbitration, the court reversed where plaintiff's officer had implied actual authority to bind plaintiff to arbitrate disputes arising under the consulting contract at issue.
Advanced Body Care Solutions, LLC v. Thione Int'l., Inc., No. 09-13151, involved an action arising out of a contract that required a company to make minimum purchases of products in exchange for an exclusive license to market and distribute them. The court affirmed judgment for defendant on the grounds that 1) the district court properly rejected plaintiff's argument that defendant's shipment of the defective ampoules breached the entire Licensing Agreement; 2) because the Licensing Agreement did not clearly express that the listed remedies were the exclusive remedies available to defendant, regardless of what the parties' intentions may have been, the Agreement did not effectively limit defendant's remedies; and 3) the jury's verdict, which did not exceed the amount of defendant's expert's calculations, was neither against the great weight of the evidence nor excessive.
Thomas v. Bryant, No. 09-11658, involved an action by ten inmates incarcerated at Florida State Prison against various officers and employees of the Florida Department of Corrections, alleging that the use of chemical agents on inmates with mental illness and other vulnerabilities violates the Eighth Amendment's prohibition on cruel and unusual punishment. The court affirmed judgment for plaintiffs, holding that 1) a deceased plaintiff may still be a "prevailing party" entitled to attorneys' fees for the costs of the district court litigation notwithstanding his untimely death and the subsequent mootness of his lawsuit pending appeal; 2) defendants waived any challenge to the district court's use of the deliberate-indifference standard; and 3) the district court did not clearly err in finding that defendant had decompensated at times that he was sprayed with chemical agents and that he suffered psychological injury from these sprayings.
First Vagabonds Church of God v. City of Orlando, No. 08-16788, involved an action claiming that the City of Orlando's Large Group Feeding Ordinance, as applied to First Vagabonds Church of God and Orlando Food Not Bombs, violated the First and Fourteenth Amendments, and the Florida Religious Freedom Restoration Act. The court of appeals partially affirmed partial judgment for defendants, on the grounds that the City could rationally conclude that it could more effectively regulate vendors' conduct in parks directly through the contracts or licenses. However, the court reversed in part, on the grounds that 1) the feedings presented at most an ambiguous situation to an objective reasonable observer; the expressive nature of the conduct was not "overwhelmingly apparent"; and 2) the Ordinance was a neutral law of general applicability that serves a rational basis.
MD Edgar Borrero v. United Healthcare of N.Y., Inc., No. 08-15264, concerned an action alleging that defendant health insurer breached its contracts with plaintiff physicians by not paying them the full contracted rate for services rendered to insureds, in violation of common and statutory law. The court of appeals reversed the dismissal of the action, on the ground that plaintiffs' claims were not subject to claim preclusion because they arose from a nucleus of operative fact distinct from those resolved in a prior litigation.
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