Illinois Supreme Court Issues Ruling On What "Aggrieved" Means Under The Biometric Information Privacy Act

The Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation, et al. just held that under the Illinois Biometric Information Privacy Act (BIPA) "an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to qualify as an 'aggrieved' person and be entitled to seek liquidated damages and injunctive relief."

Rosenbach claimed Six Flags violated BIPA when it scanned her son's thumbprint for his season pass without written consent. The Illinois Appellate Court held that a plaintiff must demonstrate more than a technical violation of BIPA in order to state a claim. There have been conflicting decisions about whether actual harm is required since "person aggrieved" is not defined in the statute. More ›

New York Mandates New Consumer Protections for Relatives of Deceased Debtors

Effective March 28, 2019, § 601-a of New York's General Business Law ("GBL 601-a") will provide additional consumer protections to relatives of deceased borrowers. Typically, when a debtor passes away, the obligations on their uncollected debts pass to the debtor's estate. This can result in confusion about whom debt collectors should contact and what they can say regarding the decedent's unpaid debt. GBL 601-a will require, among other things, that no representations are made to relatives of deceased debtors to the effect that they are obligated to pay the decedent's unpaid debt. More ›

Florida Supreme Court Awards Appellate Attorney's Fees to Borrower After Mortgagee Voluntarily Drops Appeal

In a recent 4-3 decision, the Florida Supreme Court concluded that a borrower was entitled to her appellate attorneys' fees because she was the prevailing party in a judicial foreclosure action in which her mortgagee had voluntarily dropped the appeal. Marie Anne Glass' mortgage loan servicer filed a complaint for judicial foreclosure in December 2013. Glass moved to dismiss the case on grounds that did not challenge the default, but instead argued that her mortgagee failed to allege or demonstrate that it was the proper holder of the note. Ultimately, the trial court granted Glass' motion and dismissed the case with prejudice. More ›

SCOTUS to Decide Whether Non-Judicial Mortgage Foreclosures are Subject to the FDCPA

For mortgage servicers and foreclosure firms, yesterday's oral argument before the Supreme Court in Obduskey v. McCarthy & Holthus LLP, U.S. Supreme Court, 17-1307 and the upcoming decision, could be a game changer. At issue: a split in the federal circuits over whether the non-judicial foreclosure of a mortgage constitutes debt collection, as defined by the Fair Debt Collection Practices Act. More ›

New York Court Slams Door on Lender's Revocation of Acceleration of Entire Mortgage Debt by Voluntary Discontinuance—but Leaves Latch Ajar

The State of New York's Appellate Division for the Second Department has now addressed the issue of whether a lender's voluntary discontinuance of a judicial foreclosure action, whether by court order or stipulation of the parties, is sufficient evidence of a lender's intent to revoke the acceleration of the entire mortgage debt. Unfortunately for mortgage lenders, the court determined voluntary discontinuance is not sufficient. More ›

Senate Narrowly Confirms Kathy Kraninger as New CFPB Head

The Senate voted 50-49 along party lines last week to confirm Kathleen "Kathy" Kraninger to a five-year term as the newest director of the Consumer Financial Protection Bureau (CFPB). She will succeed Acting CFPB Director Mick Mulvaney. Prior to her appointment, Kraninger served as an associate director in the Office of Management and Budget. She also previously held posts in the departments of Homeland Security and Transportation. More ›

Illinois Biometric Information Privacy Act Case Has Significant Impact On Consumer Class Actions

On November 20, 2018, the Illinois Supreme Court heard oral arguments regarding the Illinois Biometric Information Privacy Act (BIPA) in Rosenbach v. Six Flags Entertainment Corporation, et al. BIPA governs how entities may collect, use, and retain biometric data, such as fingerprints and retinal scans. Specifically, the Illinois Supreme Court will rule on whether a plaintiff is an "aggrieved party" to state a claim under BIPA without suffering any actual injury. If the Supreme Court rules the way that they indicated at oral argument, then BIPA will become a large consumer issue. More ›

Consumer Plaintiff Avila Sues Using the Safe Harbor Precedent She Established in Avila Decision—and Loses

Following the Second Circuit's 2016 decision in Avila v. Riexinger & Associates (Avila I), consumer plaintiff Annmarie Avila returned to court in Avila v. Reliant (Avila II) to sue for violations of the Fair Debt Collection Practices Act (FDCPA) under the so called "safe-harbor" provision she helped establish in her previous successful appeal. More ›

Another Court Refuses Lost Note Status to a Successor Lender

Last year, we reported on a Massachusetts Land Court decision, which interpreted Uniform Commercial Code section 3-309 to conclude that a mortgagee cannot foreclose in reliance upon a lost note affidavit, because the 1990 version of UCC 3-309 requires the party seeking to enforce the note demonstrate possession prior to its loss. 32 states remain under the 1990 version, and recently the Rhode Island Supreme Court joined decisions that prohibit enforcement of a lost note under this outdated version of the UCC. In SMS Fin. v. Corsetti, SMS Financial sued to enforce default on a note that was lost by a prior transferee. Sovereign Bank had loaned the defendants $1 million in exchange for a promissory note and a mortgage on property located at 385 South Main Street in Providence, Rhode Island. Following default and foreclosure, the defendants issued to Sovereign a new promissory note to repay the $200,000 deficiency on the original loan. Sovereign subsequently assigned its interest in the loan to SMS Financial; but, Sovereign had lost the original note so it delivered to SMS a lost note affidavit and an allonge. SMS filed suit against the defendants to collect on breach of the note, but the Superior Court entered summary judgment in favor of the defendants because SMS could not enforce the lost note. More ›

Debt Collection Industry Achieves Important Federal Court Wins

In a recent client alert, Hinshaw's Consumer Financial Services team recounted a series of notable federal court decisions they secured on behalf of debt collector clients in recent months. These included multiple wins at the Third and Seventh Circuit Court of Appeals, as well federal districts in Florida and Illinois.

The decisions included affirmation of the need to stay within the scope and original intent of the Fair Debt Collection Practices Act (FDCPA), a personal jurisdiction ruling in favor of an officer of a debt collection company, and expiration dates for settlement offers, along with a memorable win via a successful Rule 11 motion that sought attorneys' fees and costs due to bad faith actions by prolific and familiar plaintiff's counsel.

With the kind permission of Hinshaw's clients, the alert describes in detail seven of these decisions, several of which establish important new precedent favorable to the industry.

Read the alert on the Hinshaw website