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Category Archives: Circuit Split

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Still Not Valid When Made

Posted in Circuit Split, Interest Rates, SCOTUS
made-in-usaLast year, we posted about Madden v. Midland Funding, LLC, 786 F.3d 246 (2d Cir. 2015), where the Second Circuit Court of Appeals decided to ignore the “Valid When Made” doctrine.  This is the established common law doctrine that if a loan is non-usurious when made, it remains non-usurious when assigned to another creditor, even… Continue Reading

We Said It Once and We’ll Say It Again – Debt Collectors Face FDCPA Liability for Filing Time-Barred Proofs of Claim

Posted in Circuit Split, FDCPA, Proof of Claim
Thousand TimesIn 2014, the Eleventh Circuit Court of Appeals released its highly-controversial opinion in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), becoming the first circuit to rule that a debt collector violates the FDCPA when it files a proof of claim in a bankruptcy case on a time-barred debt. The collection industry… Continue Reading

Debt Collectors: Remember Opposing Counsel is Not Competent

Posted in Circuit Split, FDCPA, Shameless Promotion, Stites & Harbison PLLC
NoTalkingWell, at least that is the case as the Eleventh Circuit rules on communications between attorneys.  Recently, I read a warning from a colleague about the expansion of liability for creditor’s lawyers under the FDCPA.  In Bishop v. Ross, Early & Bonan, P.A., the Eleventh Circuit reversed the dismissal of an FDCPA complaint brought by a homeowner… Continue Reading

Bankruptcy Rules Rule the Day in the Eleventh Circuit

Posted in Bankruptcy Trends, Circuit Split
28daysSometimes we forget that the Federal Rules of Bankruptcy Procedure differ from the Federal Rules of Civil Procedure by more than just the numbering scheme that adds two digits to the front of the bankruptcy rules.  The defendants in Rosenberg v. DVI Receivables XIV, LLC, et al., failed to appreciate that there are also different… Continue Reading

Judicial Estoppel Not a Slam Dunk

Posted in Bankruptcy Trends, Circuit Split
Syracuse's Tyler Roberson (21) dunks during the first half of a college basketball game against Virginia in the regional finals of the NCAA Tournament, Sunday, March 27, 2016, in Chicago. (AP Photo/Nam Y. Huh)Seeing my Virginia Cavaliers lose to the Syracuse Orange and reading Mefford v. Norton Hospitals, reminds me that any discussion of judicial estoppel needs to be tempered by the doctrine’s exceptions and that the game is not over after the first half.  In Mefford, the Kentucky Court of Appeals reversed the trial court’s summary judgment based on… Continue Reading

Artificial Impairment, Artificial Confirmation

Posted in Bankruptcy Trends, Chapter 11, Circuit Split
PizzaSimilar to pizza ingredients, artificial impairment of creditors results in artificial confirmation of the Chapter 11 plan.  In Village Green I, GP v. Fannie Mae (In re Village Green I, GP), the Sixth Circuit affirmed the decision to vacate the confirmation order a second time.  The debtor had three creditors: its lender, its former lawyer,… Continue Reading

U.S. Supreme Court to Consider “Valid When Made” Doctrine

Posted in Circuit Split, SCOTUS
Last year, the influential Second Circuit Court of Appeals handed down a troubling, and to many banking lawyers, plainly-wrong decision in Madden v. Midland Funding LLC.[i]  In that case, Midland had bought a credit card debt originated by a Delaware national bank, attempted to enforce the debt against the borrower, and apply the 27% interest… Continue Reading

Until Debt Do Us Part Redux

Posted in Circuit Split, Guaranty, SCOTUS
supremecourt_0The U.S. Supreme Court recently heard oral arguments in Hawkins v. Community Bank of Raymore.  The Court is considering a circuit split to determine if a spousal guarantor is an “applicant” protected by the Equal Credit Opportunity Act (ECOA).  At issue is Regulation B which interpreted the ECOA’s definition of “applicant” to include a spouse-guarantor. … Continue Reading

Sixth Circuit Interprets Consumer Protection Statute to Protect Non-Consumers

Posted in Circuit Split, FDCPA
PeopleIn 2010, the United States Supreme Court expanded the concept of “corporate personhood” when it held in Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), that corporations can engage in political speech protected by the First Amendment. The same rationale carried over to the religious context… Continue Reading

SCOTUS to Settle Chapter 7 Lien-Stripping Circuit Split

Posted in Circuit Split, mortgage, SCOTUS, Uncategorized
lien strippingOn November 17, the Supreme Court granted certiorari in the consolidated cases of Bank of America v. Caulkett (Dkt. 13-1421) and Bank of America v. Toledo-Cardona (Dkt. 14-163).  At issue in these appeals is whether the Bankruptcy Code permits Chapter 7 debtors to “strip-off” wholly out-of-the-money junior mortgages using Section 506(d).  This appeal sets out to… Continue Reading

SCOTUS Closes Statutory Gap in Bellingham

Posted in Circuit Split, SCOTUS, Stern v. Marshall
Yesterday, the Supreme Court issued a long-awaited ruling in Executive Benefits Ins. Agency v. Arkison, 573 U.S. __ (2014) (sometimes called “Bellingham” for the name of the debtor in the main bankruptcy case).  A .pdf of the slip opinion can be found here. Bellingham is a follow-up to its decision in Stern v. Marshall, 546 U.S __ (2011), in which… Continue Reading