On November 17, 2021, on its review en banc of its prior decision, the United States Court of Appeals for the Second Circuit changed its course in Maddox v. The Bank Of New York Trust Company, N.A., docket number 19-1774, and held that the plaintiffs’ allegations “fail to support their Article III standing, and
Diane Bettino
Supreme Court Declares CDC Eviction Moratorium Unconstitutional
Late Thursday evening, the Supreme Court of the United States issued an opinion to reinstate a court order blocking the Centers for Disease Control and Prevention’s (“CDC”) nationwide moratorium on residential evictions.
In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act, which, in part, imposed a 120-day eviction moratorium on properties…
SCOTUS Issues Anticipated Decision in Facebook, Inc. v. Duguid And Unanimously Reverses Ninth Circuit, Holding Facebook’s Text Notification System Did Not Meet the TCPA’s Definition of An Autodialer Because It Did Not Use A Random Or Sequential Number Generator
On April 1, 2021, the Supreme Court of the United States issued its highly anticipated decision in the Facebook Inc. v. Duguid matter. In a unanimous decision delivered by Justice Sonia Sotomayor, the Supreme Court addressed a hotly debated issue of statutory construction regarding the Telephone Consumer Protection Act (“TCPA”), and reversed the Court of Appeals for the Ninth Circuit’s decision holding that Facebook, Inc. (“Facebook”) used a text-message notification system that met the TCPA’s definition of an “autodialer.” In short, the Court held that Facebook’s notification equipment did not meet the definition of an autodialer because it does not use a random or sequential number generator. The Court rejected Plaintiff Noah Duguid’s more broad interpretation of the statute, noting that if an autodialer were any device that had the capacity to dial random numbers, the TCPA would encompass any equipment that stores and dials telephone numbers, such as a modern smartphone.
Continue Reading SCOTUS Issues Anticipated Decision in Facebook, Inc. v. Duguid And Unanimously Reverses Ninth Circuit, Holding Facebook’s Text Notification System Did Not Meet the TCPA’s Definition of An Autodialer Because It Did Not Use A Random Or Sequential Number Generator
RPAPL Arguments May be Waived: Case of Appellate First Impression
In a case of appellate first impression in New York, the Appellate Division, Second Department, held that a mortgagor cannot make a Real Property Actions and Proceedings Law (“RPAPL”) 1304 argument in opposition to a motion for Judgment of Foreclosure and Sale – even if that was pled as a defense in the mortgagor’s Answer – where the prior summary judgment motion was unopposed.
In Wells Fargo Bank, N.A. v. Harrigan,[1] after the lender commenced a foreclosure action in Suffolk County against the mortgagor, the mortgagor filed an Answer, containing an RPAPL 1304 compliance defense, specifically that a 90-day notice was not properly mailed. The lender moved for summary judgment and the mortgagor failed to oppose that motion, apparently because of some unspecified law office failure. Thereafter, the lender moved for Judgment of Foreclosure and Sale and the mortgagor cross-moved for vacatur of the summary judgment order and dismissal of the action based on the lender’s purported failure to demonstrate RPAPL 1304 compliance.Continue Reading RPAPL Arguments May be Waived: Case of Appellate First Impression
How COVID-19 is Impacting Mortgage Lenders
As the sheer impact of COVID-19 continues to unfold, federal agencies are implementing policies across the country in an effort to lessen the financial burden on Americans. On March 18, 2020, the U.S. Department of Housing and Urban Development (“HUD”) authorized the Federal Housing Administration to place an immediate 60-day suspension on all evictions and foreclosures. HUD Secretary, Ben Carson, is hopeful this moratorium “will provide homeowners with some peace of mind during these trying times[.]”
Continue Reading How COVID-19 is Impacting Mortgage Lenders
The Often Overlooked Federal Protections to Tenants in Foreclosure Actions
For institutional lenders, the filing of any foreclosure action requires careful navigation and compliance with various state and federal laws. Notice to the mortgagor, for instance, is a prerequisite to any foreclosure; however, what if the property is subject to a residential lease? What obligation does a mortgagee then have to a third-party tenant? For issues like these, states generally have their own specific tenant foreclosure notice requirements. In many states, notice laws are drafted to mirror the federal provisions provided under the Protecting Tenants at Foreclosure Act (“PTFA”).
Introduced in 2009, the PTFA was originally enacted under Title VII of the Helping Families Save Their Homes Act. The PTFA included a sunset clause, but on May 24 2018, the Trump Administration signed its permanent extension into law. In addition to serving a notice on the mortgagor, the PTFA mandates that notices to foreclose must also be served on all tenants. Generally, once the mortgagee issues a notice to foreclose, the PTFA permits tenants to stay in the foreclosed property for either: (1) 90-days from the date of the notice or (2) the remainder of their lease term, whichever is greater. Significantly, however, the PTFA’s protections only apply to tenants with bona fide tenancies.Continue Reading The Often Overlooked Federal Protections to Tenants in Foreclosure Actions
Supreme Court Justices say no to applying the “discovery” rule on FDCPA claims
On December 10, 2019, the Supreme Court of the United States resolved a split among the Circuit Courts of Appeals over whether the one-year statute of limitations of the Fair Debt Collection Practices Act (“FDCPA”) begins to accrue from the time the alleged violation occurs, as opposed to when it is discovered. The Supreme Court’s decision, delivered by Justice Thomas, in Rotkiske v. Klemm, et al., No. 18-328, held that claims brought under the FDCPA are strictly subject to the statutory language of the FDCPA and must be filed “within one year from the date on which the violation occurs.”
Continue Reading Supreme Court Justices say no to applying the “discovery” rule on FDCPA claims
Appellate Division Rejects MacPherson Mortgage Acceleration Argument in Case of First Impression
In a case of appellate first impression in New York, the Appellate Division, Second Department held that a mortgage is accelerated upon a lender’s election to do so, notwithstanding an optional reinstatement clause in a mortgage. In the Dieudonne matter,[1] the Second Department rejected the “MacPherson Argument,” first pronounced by the Supreme Court, Suffolk County[2] and affirmed the dismissal of the lender’s foreclosure complaint as time-barred. The MacPherson Argument reasons that a mortgage with an optional reinstatement clause is not accelerated until judgment enters, as the borrower has an continuous right to reinstate until that point.
Continue Reading Appellate Division Rejects MacPherson Mortgage Acceleration Argument in Case of First Impression