Eversheds Sutherland 11th Circuit Business Blog
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Lending Agreements’ Out-of-State Forum Selection Clauses and Class Action Waivers Violate Georgia Public Policy

Lenders were barred from enforcing out-of-state forum selection clauses and class action waivers in loan agreements because such provisions violate Georgia’s public policy, the Eleventh Circuit held in Davis v. Oasis Legal Finance Operating Co., 2019 WL 4051592 (11th Cir. Aug. 28, 2019). A class of borrowers who entered into identical loan agreements sued their lenders, alleging that...

Eleventh Circuit Weighs in on Circuit Split as to Whether Guarantors are “Applicants” under the Equal Credit Opportunity Act

The Eleventh Circuit in Regions Bank v. Legal Outsource PA, 2019 WL 4051703 (11th Cir. Aug. 28, 2019), was tasked with answering a question that has divided the circuits: whether a guarantor constitutes an “applicant” under the Equal Credit Opportunity Act. And the question divided the panel as well, with Judges William Pryor and visiting District Court Judge K. Michael Moore in the...

Court Revives Claim Challenging Use of “Available Balance” Rather than “Ledger Balance” to Assess Overdraft Fees, Finding Contracts Ambiguous

Carol Tims filed a putative class action against LGE Community Credit Union, claiming that the bank breached its contract with her, and violated the federal Electronic Fund Transfer Act (“EFTA”), when it charged overdraft fees based on Tims’s “available balance”—which took into account pending debits—rather than her “ledger balance,” which did not.  The district court dismissed Tims’s...

HOTELS CAN’T COMPLAIN ABOUT SOLICITED FAXES, EVEN WHEN THEY DON’T REQUIRE AN OPT-OUT NOTICE

The Eleventh Circuit was asked in Gorss Motels, Inc. v. Safemark Systems, LP, 2019 WL 3384191 (11th Cir. July 26, 2019), to decide whether a fax recipient provided prior express permission to receive faxes from a sender under the TCPA and, if so, whether the faxes needed to contain opt-out notices under an agency regulation.  The plaintiffs were hotel operators who agreed in their...

Moving to Reschedule Foreclosure Sale Does Not Violate RESPA Regulations

Last month, in Landau v. RoundPoint Mortgage Servicing Corp., the Eleventh Circuit held that a mortgage loan servicer may move to reschedule a previously ordered foreclosure sale after a borrower submits a completed loss mitigation application.  925 F.3d 1365 (11th Cir. June 11, 2019).  The court rejected the plaintiff’s argument that moving to reschedule a foreclosure sale violates...

Municipal Fair Housing Act Suit vs. Banks Is Again Green-Lighted

Capping off a busy week, the Eleventh Circuit took a second crack at whether a municipality can bring an action under the Fair Housing Act against banks to recover damages allegedly attributable to racially discriminatory lending practices. In the prior round, the court held that the City of Miami had alleged standing and causation sufficiently to survive a motion to dismiss. But the...

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