Plaintiff filed suit against Lincoln, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Second Circuit affirmed the district court's grant of summary judgment for Lincoln, holding that plaintiff did introduce sufficient evidence from which a jury could conclude that he revoked his consent, but that the TCPA does not permit a consumer to revoke its consent to be called when that consent forms part of a bargained‐for exchange. In this case, plaintiff's consent was not provided gratuitously, it was included as an express provision of a contract to lease an automobile from Lincoln. View "Reyes v. Lincoln Automotive Financial Services" on Justia Law

Plaintiffs filed suit against several financial entities for foreclosing on a mortgage loan. The district court granted summary judgment for defendants. At issue were plaintiffs' claims under the Missouri Merchandising Practices Act (MMPA), Mo. Rev. Stat. 407.020. The court affirmed and held that the foreclosure was justified because defendants had a right to foreclose on the house and thus the MMPA claim failed as a matter of law because the loss was not caused by any misconduct on behalf of defendants. Likewise, plaintiffs' tortious interference claim failed because the foreclosure was legal. View "Wheatley v. JP Morgan Chase Bank" on Justia Law

No fiduciary duty arises in a consumer transaction for the purchase of a whole life insurance policy based upon the advice of a financial advisor where the consumer purchasing the policy does not cede decision -making control over the purchase to the financial advisor. In 1995, Bryan Holland, a financial advisor for IDS Life Insurance Corporation, made an unsolicited telephone contact, a "cold call," to Eugene and Ruth Yenchi. At a subsequent meeting and for a fee of $350, Holland presented the Yenchis with a financial management proposal containing a notice that it had been prepared by "your American Express financial advisor" (Holland) and that "[alt your request, your American Express financial advisor can recommend products distributed by American Express Financial Advisors and its affiliates as investment alternatives for existing securities." The Proposal offered the Yenchis a number of general recommendations, including that they monitor monthly expenses, consolidate their debt, consider various savings plans, consolidate current life insurance policies into one policy, review long-term care coverage, keep accurate records for tax purposes (medical expenses and charitable contributions), transfer 401(k) funds into mutual funds, and continue estate planning with an attorney and their financial advisor. The Yenchis implemented some of these recommendations. In 2000, the Yenchis had their portfolio independently reviewed. Through this process, they were advised that Holland’s recommendations would be financially devastating to the Yenchis. In April 2001, the Yenchis sued Holland and his company, American Express Financial Services Corporation, American Express Financial Advisors Corporation, and IDS Life Insurance Company. The Yenchis' asserted claims of negligence/willful disregard, fraudulent misrepresentation, violation of the Uniform Trade Practices and Consumer Protection Law ("UTPCPL"), bad faith, negligent supervision, and breach of fiduciary duty. Of relevance here, with respect to the breach of fiduciary duty claim, the trial court held that no fiduciary relationship was established between the Yenchis and Holland because the Yenchis continued to make their own investment decisions. The Pennsylvania Supreme Court concluded that, consistent with its jurisprudence, no fiduciary duty arose in such a situation. Consequently, the Court reversed the Superior Court's decision to the contrary. View "Yenchi v. Ameriprise Financial" on Justia Law

Hilliard owned a controlling interest in companies that owned radio stations. In 2003, the companies entered into a loan agreement with Wells Fargo, borrowing $18.9 million, secured by assets that exceeded $50 million. The loan was continuously in default after March 31, 2004. Although the agreement was amended several times, Wells Fargo never foreclosed. Hilliard sold his ranch and was attempting to sell radio stations when, without notice to Hilliard, Wells Fargo sold the loan to Atalaya. Atalay filed suit and was awarded judgments that resulted in Atalaya’s purchase of Hilliard’s companies in bankruptcies. Hilliard, now 78 years old, alleged that Wells Fargo took or assisted in taking his property for wrongful use, with intent to defraud, or by undue influence, violating Welfare and Institutions Code section 15610.30(a)(1)(2), a provision of the Elder Abuse and Dependent Adult Civil Protection Act. The court dismissed, finding that Hilliard lacked standing. The court of appeals affirmed. Hilliard’s circular argument—that the duty breached by Wells Fargo was owed to him personally, and not just as a shareholder, because he is an elder and elder abuse is by definition a personal claim—ignores the fact that his claim does not originate in circumstances independent of his status as a shareholder in the companies. View "Hilliard v. Harbour" on Justia Law

This case arose from an allegedly forged home-equity loan. Plaintiff sued the lenders, bringing several claims, including statutory fraud and violations of the Texas Finance Code and Texas Deceptive Trade Practices Act. The trial court granted summary judgment for the lenders without stating its reasons. The court of appeals affirmed. The Supreme Court affirmed in part and reversed and remanded in part, holding that the court of appeals (1) properly affirmed summary judgment on Plaintiff’s constitutional forfeiture claim; and (2) erred in holding that Plaintiff’s remaining claims were barred on statute of limitations and waiver grounds. View "Kyle v. Strasburger" on Justia Law

Sue Walters filed a lawsuit against Quicken Loans, Inc., alleging that Quicken Loans violated the “illegal loan” provision of the West Virginia Residential Mortgage Lender, Broker and Servicer Act, W. Va. Code 31-17-8(m)(8), in originating a primary mortgage loan for her. A jury found in favor of Walters and awarded her damages in the amount of $27,000. Walters sued additional defendants - an appraiser and the entity that serviced the loan - with whom she settled. In total, the court offset $59,500 of the $98,000 paid by the settling defendants against the total damages, costs and fees awarded against Quicken Loans. The Supreme Court affirmed in part, reversed in part and remanded, holding that the circuit court (1) did not err in allowing the illegal loan claim to go to the jury, as section 31-17-8(m)(8) applies to a single primary mortgage loan; (2) did not err in ruling that Walters was a prevailing party and thus entitled to an award of fees and costs; (3) erred in offsetting only a portion of the settlement monies received from the settling defendants against the total compensatory damages received by Walters. View "Quicken Loans, Inc. v. Walters" on Justia Law

The volume of telephone calls made by a debt collector to a consumer, absent any other evidence of intent to annoy, abuse, oppress or threaten, is not sufficient to establish a violation of W. Va. Code 46A-2-125(d). Plaintiff-consumer filed suit against Defendant-debt collector. The circuit court ruled that 230 unanswered collection calls Defendant placed with Plaintiff violated section 46A-2-125(d) and awarded Plaintiff damages. The Supreme Court reversed after noting that the telephone calls continued because Plaintiff never answered the calls and never informed Defendant that he contested the debt, holding (1) the volume of unanswered calls in this case did not establish intent in violation of section 46A-2-125(d); and (2) therefore, the circuit court’s ruling is deficient as a matter of law. View "Valentine & Kebartas, Inc. v. Lenahan" on Justia Law

The Fair Debt Collection Practices Act authorizes private lawsuits and fines against “debt collector[s],” defined as anyone who “regularly collects or attempts to collect . . . debts owed or due . . . another,” 15 U.S.C. 1692a(6). CitiFinancial loaned money to petitioners, who defaulted. Santander purchased the defaulted loans from CitiFinancial and sought to collect in ways petitioners believe violated the Act. The district court and Fourth Circuit held that Santander was not a debt collector because it did not regularly seek to collect debts “owed . . . another” but sought instead only to collect debts that it purchased and owned. A unanimous Supreme Court affirmed. A company may collect debts that it purchased for its own account, without triggering the statutory definition. The statute’s plain language focuses on third party collection agents regularly collecting for a debt owner—not on a debt owner seeking to collect debts for itself. The Court rejected an argument that the word “owed” is the past participle of the verb “to owe,” and indicates that the debt collector definition must exclude loan originators but embrace debt purchasers. The Court stated that it would not “rewrite a constitutionally valid text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” View "Henson v. Santander Consumer USA Inc." on Justia Law

Plaintiff filed suit alleging that GCF violated the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., by failing to clearly and conspicuously disclose the annual percentage rate (APR) and finance charge in his Retail Installment and Security Contract. The Eighth Circuit affirmed the district court's denial of plaintiff's motion for judgment as a matter of law where the Summary of Understanding was not completely integrated; the district court thus did not err in admitting parol evidence; and there was sufficient evidence to support GCF's affirmative defense of waiver. The court also affirmed the district court's denial of plaintiff's motion for a new trial where there was no record of what objections plaintiff would have raised had the district court turned on "white noise" during the initial portion of the trial, nor was he prejudiced; even if the district court erred by not sustaining plaintiff's objection to GCF's counsel's statement during closing argument, the statement was not such a magnitude that a new trial was warranted; the court rejected plaintiff's claims of error as to the discretionary evidentiary rulings; and there was no error in the district court's response to a jury question. View "Smiley v. Gary Crossley Ford, Inc." on Justia Law

In consolidated class actions, plaintiffs claimed the brokers who represented them in the sale of their homes and a group of companies that provided services in connection with those sales violated their fiduciary duties by failing to disclose alleged kickbacks paid by the service providers to the brokers in connection with the sales. Defendants filed motions to compel arbitration on the basis of three separate agreements, at least one of which was executed by each plaintiff. The trial court found the arbitration clauses in two of the agreements inapplicable, but compelled the signatories of the third agreement to arbitrate with their brokers. Invoking the doctrine of equitable estoppel, the court also required the signatories of the third agreement to arbitrate their claims against the service providers, who were not parties to the arbitration agreements. The court of appeals reversed with respect to the two arbitration clauses the lower court found inapplicable. Each of the plaintiffs executed one or the other of these two agreements. The court dismissed the cross-appeal of the plaintiffs who were required to arbitrate because an order compelling arbitration is not appealable. View "Laymon v. J. Rockcliff, Inc." on Justia Law