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…
Category: Consumer Protection
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…
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…
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. …
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…
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…
Offer to “Resolve” Time-Barred Debt States Fair Debt Collection Claim
The Eleventh Circuit took on a circuit-splitting issue under the Fair Debt Collection Practices Act in Holzman v. Malcolm S. Gerald & Associates, 2019 WL 1495642 (11th Cir. Apr. 5, 2019). The case arose from the defendants’ efforts to collect a time-barred debt. The plaintiff alleged that the collection letter he received was “false, deceptive,…
Loan Servicer’s “Obvious” Willful Violation of the Fair Credit Reporting Act Warrants Revival of Plaintiffs’ Claims for Emotional-Distress and Punitive Damages
Last week, in Marchisio v. Carrington Mortgage Services, LLC, 2019 WL 1320522 (11th Cir. Mar. 25, 2019), the Eleventh Circuit, taking a somewhat exasperated tone, addressed claims against a mortgage servicer whose repeated misreporting of a consumer account—even after a history of litigation and two settlement agreements—was an “obvious” violation of the Fair Credit Reporting…
Some Claims are Stronger than Others—Eleventh Circuit Revives Protein Supplement Maker’s Lanham Act Claim But Holds that Georgia Uniform Deceptive Trade Practices Act Claim is Preempted by Federal Law
The Eleventh Circuit recently reversed in part and affirmed in part the dismissal of a complaint alleging violations of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372, and the federal Lanham Act, 15 U.S.C. § 1125(a). Hi-Tech Pharm., Inc. v. HBS Int’l, 2018 WL 6314282 (11th Cir. Dec. 4, 2018). The case presented…
Eleventh Circuit Restores $20m Punitive-Damages Verdict Against Philip Morris
The Eleventh Circuit last week reinstated a $20.76m punitive-damages verdict against tobacco giant Philip Morris, ruling that the district court had abused its discretion in ordering a new trial on the plaintiff’s intentional tort claims. Cote v. R.J. Reynolds Tobacco Co., 2018 WL 6167395 (11th Cir. Nov. 26, 2018). The court also affirmed the denial…