FYI: 7th Cir Rules Against Defendant in TCPA Action Regarding Re-Assigned Cell Phone Numbers

The U.S. Court of Appeals for the Seventh Circuit recently held that automated calls to a cell phone number that was formerly, but is no longer, subscribed to by the customer violates the federal Telephone Consumer Protection Act, notwithstanding the consumer's prior consent to be called at that number.  A copy of the opinion is attached. 

 

A debt collection company made numerous automated calls to cell phone numbers provided to the creditor by various debtors.  The debtors consented to these calls.  However, at the time the calls were placed, the relevant cell phone numbers had been reassigned to third parties.  Two such third parties initiated a class action against the debt collector, alleging violations of the federal Telephone Consumer Protection Act ("TCPA"). 

 

The lower court certified a class, and held that only the consent of the current subscriber assigned to a given cell phone number justified an automated call.  The debt collector appealed. 

 

As you may recall, the TCPA provides that it is unlawful "to make any call (other than a call...made with the prior express consent of the called party) using any automatic telephone dialing system...to any telephone number assigned to a...cellular telephone service...or any service for which the called party is charged for the call."  See 47 U.S.C. Sec. 227. 

 

The case turned on whether "called party" meant the intended or actual recipient of a call.  The debt collector argued for the former interpretation, noting that consent is typically valid until revoked, and that the lower court's interpretation of the TCPA would drive up the cost of debt collection. 

 

The Seventh Circuit began by noting that "called party" is not defined in the TCPA.  However, the Court observed that the reference to a service "for which the called party is charged" must refer to the current subscriber, "because only the current subscriber pays."  The presumption "that a statute uses a single phrase consistently...implies that the consent must come from the current subscriber." 

 

The Court further scrutinized the statute, finding that "called party" appears seven times in Section 227 of the TCPA: four instances "unmistakably denote the current subscriber," one refers to the individual answering the call, and two are unclear. 

 

The Seventh Circuit found the debt collector's argument to interpret "called party" to mean "intended recipient" unpersuasive, because the latter phrase "does not appear anywhere in Sec. 227."  The Court also cited case law establishing that neither customers nor phone companies own property rights in a given phone number - and accordingly observed that "there can't be any long-term consent to call a given cell number..."

 

The Court did appear sympathetic to the debt collector's arguments regarding the practical difficulties of determining who currently subscribes to a given number; however, it suggested that "if Congress has failed to appreciate changes in the telecommunications business" the debt collector's appropriate remedy was legislative, not judicial. 

 

Based on the reasoning above, the Seventh Circuit held that under the TCPA, "called party" means the person subscribed to the called number at the time the call is made.  Accordingly, it affirmed the decision of the lower court. 

 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
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FYI: 7th Cir Rules in Favor of Debt Collector in FDCPA "Overshadowing" Claim as to Debt Validation/1692g Notice

The U.S. Court of Appeals for the Seventh Circuit recently held that a debt collector's written threats to take legal action against the debtor and instructions for the debtor to call the creditor immediately constituted mere "puffery" that was not confusing and did not contradict the validation/1692g notice on the back of the letter, and therefore did not violate the federal Fair Debt Collection Practices Act.

 

A copy of the opinion is available at: 

http://www.ca7.uscourts.gov/tmp/I40OJ6D7.pdf.

 

A creditor hired defendant debt collection company ("Debt Collector") to collect on plaintiff-debtor's overdue payments.  The Debt Collector sent the debtor a letter that included on the back of the letter a validation/1692g notice informing the debtor that she had 30 days to contest the validity of the debt under the federal Fair Debt Collection Practices Act ("FDCPA").  Using such phrases as " take action now, "call [the creditor's] office today," and "[the creditor] may be forced to take legal action," the letter stressed the importance of the communication and emphasized that the creditor could pursue legal action against the debtor if the debtor failed to pay the debt. 

 

The debtor filed a class-action law suit against the Debt Collector, claiming that the letter violated section 1692g of the FDCPA, because the letter's insistent tone and threats of legal action "overshadowed" the debt validation notice on the back of the letter.  The debtor also requested that the district court allow her to conduct a consumer survey to determine whether the language in the letter was in fact confusing.

 

Ruling on the Debt Collector's motion to dismiss, the district court concluded that the debtor failed to state a claim under the FDCPA because the use of language such as "take action now" was only puffery that did not subvert the debtor's thirty–day validation right and, further, that the placement of the validation notice on the back of the letter was proper under the FDCPA. The district court also rejected the debtor's request to conduct a consumer survey.

 

The Seventh Circuit affirmed.

 

As you may recall, section 1692g of the FDCPA requires a debt collection letter to include, among other things, (1) a "statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt . . . , the debt will be assumed to be valid . . .," and (2) "a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt . . . is disputed, the debt collector will obtain verification of the debt . . . and a copy of such verification . . . will be mailed to the consumer . . ."  15 U.S.C. §1692g(a).

 

In addition, Section 1692g(b) provides in part that "[a]ny collection activities and communication during the 30-day [validation] period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt . .  . ."  15 U.S.C. § 1692g(b).

 

Applying the "unsophisticated consumer" standard to its analysis of the debt collection letter, the Seventh Circuit noted that "'a significant fraction of the population' must find the letter confusing in order to violate Section 1692g(b)'s prohibition of inconsistent or overshadowing language."  See Taylor v. Cavalry Inv., L.L.C., 365 F.3d 572 (7th Cir. 2004).  Accordingly, in considering the Debtor's assertion that the letter was confusing and thus irreparably "overshadowed" the thirty-day validation right, the Court noted the distinction between "language rushing the debtor to take action . . . and provisions that set deadlines contrary to or contradictory to the thirty-day validation period."  
 
In so doing, the Seventh Circuit observed that the collection letter in this case contained no terms that imposed a deadline contradicting the debtor's right to the thirty-day validation period or any terms that were "tantamount to a request for payment."  The Court thus ruled that the language urging the debtor to take immediate action and that the creditor could pursue legal action was "at worst" puffery, that is, "rhetoric designed to create a mood rather than to convey concrete information or misinformation."  The Court stated "[e]ven the most unsophisticated debtor would realize that debt collectors wish to expedite payment, and urging [the debtor] to hurry does not confuse or undermine the right to [the] validation period." 

 

The Seventh Circuit also stressed that, even if the collection letter had indicated that the creditor had the right to file suit during the validation period, the letter would not have risen to a violation of Section 1692g.

 

Moreover, reasoning that the warning on the front of the letter in all capital letters and bold typeface to "see [the] reverse for important information" adequately advised the consumer about where to find information about her rights, the Court ruled that the placement on the back did not create "confusion sufficient" to state an FDCPA claim.  See Sims v. GC Services, L.P. 445 F.3d 959, 963-64 (7th Cir. 2006).  The Seventh Circuit accordingly ruled that the collection letter in this case was clear on its face since "neither its structure nor its diction cloud its meaning such that an unsophisticated consumer could not understand it or his rights." 

 

Finally, the Seventh Circuit also agreed with the district court in disallowing the debtor to introduce evidence in the form of a consumer survey to illustrate the confusing nature of the collection letter.  The Court ruled that since "no reasonable person, however unsophisticated, could construe" the letter as a violation of Section 1692g(b), there was no need for a consumer survey.

 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: Ill App Ct Holds Service by Publication Affidavit Inadequate, Voids Foreclosure and Sale

The Illinois Appellate Court, First District, recently held that the trial court lacked jurisdiction in a mortgage foreclosure action, thereby voiding the subsequent sale of the property, where the affidavits filed in support of service of process by publication failed to indicate that the affiants first took the steps required in attempting to personally serve process on the defendant. 

 

A copy of the opinion is available at: 

http://www.state.il.us/court/Opinions/AppellateCourt/2012/1stDistrict/1111213.pdf.

 

Defendant borrower defaulted on a residential mortgage loan on a condominium located in Cook County, Illinois.  In the ensuing foreclosure action against the borrower, plaintiff loan owner ("Loan Owner") sought to serve process on the borrower at her residence, the mortgaged condominium.  After making many repeated and unsuccessful attempts to serve process on the borrower through a special process server, the Loan Owner sought leave from the court to serve process on the borrower by publication. 

 

To support its motion, the Loan Owner submitted affidavits of employees of the special process server, stating among other things that "attempts were made" to serve the borrower at the condominium and that "it was discovered that no contact could be made" with the borrower even after "we attempted to locate the defendant by searching" various public and confidential databases for a current address.   The Loan Owner's attorney also supposedly signed an affidavit swearing that the borrower "on due inquiry cannot be found."

 

Relying on the affidavits, the trial court allowed publication service, and eventually entered a default judgment against the borrower.  Subsequently, the Loan Owner purchased the property at the foreclosure sale.  Following the court's approval of the sale, the borrower moved to quash the service of process by publication and void the judgment and sale of the condominium for lack of jurisdiction.  The trial court denied the motion. 

 

The borrower appealed, and the Appellate Court reversed, ruling in part that publication service was improper in this case, because the Loan Owner failed to show due inquiry in "strict compliance" with the circuit court's rule regarding affidavits in support of publication service in foreclosure cases. 

 

As you may recall, Illinois Code of Civil Procedure Section 2-206 provides in part:  "Whenever, in any action affecting property . . . within the jurisdiction of the court . . . plaintiff . . . shall file . . . an affidavit showing that the defendant . . on due inquiry cannot be found . . .  so that a process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made . . . ."  735 ILCS 5/2-206(a).
  
Expanding on Section 2-206, the Circuit Court of Cook County additionally requires that, in mortgage foreclosure actions, affidavits in support of publication service "must be accompanied by a sworn affidavit by the
individual(s) making such 'due inquiry' setting forth with particularity the action taken to demonstrate an honest and well directed effort to ascertain the whereabouts of the defendant(s) by inquiry . . ."   Cook Co. Cir. Ct. R. 7.3.

 

Moreover, Section 15-1509(c) of the Code of Civil Procedure provides in part that relief from an erroneous foreclosure judgment and sale is limited to a claim for the proceeds from the sale.  735 ILCS 5/15-1509(c).

 

Noting that Section 2-206 requires "strict compliance" with its requirements for publication service, and that the local Cook County Rule 7.3 adds on to those requirements by requiring affiants to set forth "with particularity" the actions they took to find and serve process on the defendant, the Court pointed out that the affidavits in this case failed to identify who attempted to serve process on the borrower or who took steps to locate her at other addresses.  In so doing, the Court remarked that the affidavits used the passive voice (e.g., "attempts were made"; the borrower "could not be served") and thus failed to indicate that the affiants personally undertook the requisite measures to serve process on or to locate the borrower.
 
Ruling that the submitted affidavits did not meet the local Cook County Rule 7.3's requirement that affiants swear that they personally undertook the actions listed in the affidavit, the Appellate Court concluded that the trial lacked jurisdiction to enter a default judgment.  
 
In so ruling, the Court rejected the Loan Owner's assertion that Illinois Civil Code Section 15-1509(c) barred any challenge to a foreclosure and sale, even where the court lacked jurisdiction over the defendant.  The Court explained that judgments entered without jurisdiction over the parties are void and of no legal effect, and ruled that Section 15-1509(c) applies only to valid judgments entered with jurisdiction, not to instances of improper publication service.    In so ruling, the Court stated, "nothing in section 15-1509 indicates that the legislature sought to make foreclosure judgments take effect and deprive owners of their properties when the trial court lacked personal jurisdiction over the owners."

 

The Appellate Court thus ruled that the default judgment, and the judgment approving the sale of the condominium, were void.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: 6th Cir Holds Treating Loan as In Default At Time of Acquisition Triggers FDCPA Liability

The U.S. Court of Appeals for the Sixth Circuit recently held that the federal Fair Debt Collection Practices Act's ("FDCPA") definition of "debt collector" includes loan owners and servicers that either acquired a debt in default or treated a debt as if it were in default at the time of the acquisition. 

 

A copy of the opinion is available at:

http://www.ca6.uscourts.gov/opinions.pdf/12a0112p-06.pdf

 

A borrower claimed to have made a double payment on her mortgage loan for a single month, and therefore did not make the following month's payment.  The prior owner of the loan claimed that the borrower's account was delinquent.  Around the same time, the prior owner sold the loan and related servicing rights to the current owner and servicer, which became defendants in this case.

 

The borrower alleged that despite her purported payments, the servicer (1) began dunning the borrower and her husband, the latter of whom purportedly was not a borrower on the loan; (2) made numerous collection calls to both the borrower and her husband, despite "do not call" requests; (3) threatened foreclosure; (4) assessed monthly late fees; and (5) reported derogatory credit information to the credit reporting agencies. 

 

The borrower therefore sued the current loan owner and servicer in federal court, alleging various violations of FDCPA.  The loan owner and servicer both moved for summary judgment, arguing that they were not "debt collectors" under the FDCPA, because of the borrower's allegation that the loan was not actually in default.  The servicer further argued that as a servicer, it did not fall under the definition of debt collector.  The loan owner further argued that as the purchaser of the loan, it was a creditor and not a debt collector. The lower court found that neither the loan owner nor the servicer were debt collectors, and so dismissed the complaint.  The borrower appealed. 

 

As you may recall, the FDCPA defines a "debt collector" as any person who uses any instrumentality of interstate commerce to collect debts owed (or allegedly owed) to another.  15 U.S.C. Sec. 1692a(6).  The definition also includes those who collect their own debts using the name of another, "which would indicate that a third person is collecting or attempting to collect such debts..."  Id.  However, the definition of "debt collector" does not include a debt which was not in default at the time it was obtained by the collecting entity.  Id. 

 

The Sixth Circuit began its analysis by considering whether an entity might acquire and attempt to collect on a debt, without qualifying as either a creditor or debt collector under the FDCPA.  The Court answered in the negative, holding that an entity that did not originate, but acquired and attempted to collect on, a debt "is either a creditor or a debt collector depending on the default status of the debt at the time it was acquired."  Similarly, the Court held that a loan servicer can either "stand in the shoes of a creditor or become a debt collector," again depending on whether the debt was in default when the servicer began servicing the loan. 

 

The Court rejected the argument that neither the loan owner nor the servicer was a debt collector, due to the borrower's allegation that the loan was never in default.  To reach that conclusion, it cited the statutory definition of debt collector, which refers to both actual obligations and "alleged" obligations, as well as to debts that are "asserted" to be owed.  15 U.S.C. Sec. 1692a(5)-(6).  Accordingly, the Sixth Circuit held that "a debt holder or servicer is a debt collector when it engages in collection activities on a debt that is not...actually owed."  

 

Based on the foregoing, the Sixth Circuit held that "the definition of debt collector pursuant to Sec. 1692a(6)(f)(iii) includes any non-originating debt holder that either acquired a debt in default or has treated the debt as if it were in default at the time of acquisition." 

 

Having made that determination, the Sixth Circuit examined the borrower's FDCPA allegations, and found that they were sufficient to state a claim.  Accordingly, the Court reversed the decision of the lower court, and remanded the matter for further proceedings. 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: 11th Cir Holds Borrower Stated FDCPA Claim Against Foreclosure Firm For Identifying Servicer as "Creditor"

The U.S. Court of Appeals for the Eleventh Circuit recently held that a debtor's complaint stated a "false representation" claim under the federal Fair Debt Collection Practices Act, where the debt validation/1692g notice identified the loan servicer who started servicing the loan after it was in default as the "creditor." 

 

A copy of the opinion is available at: 

http://www.ca11.uscourts.gov/opinions/ops/201014618.pdf.

 

Plaintiff-Appellant ("Debtor") obtained a mortgage loan on his property and eventually defaulted on the loan.  Following the default, the original lender transferred the servicing rights for the loan.  The loan servicer in turn hired a foreclosure law firm ("Law Firm") to assist in the collection efforts.  To that end, the Law Firm sent a notice to the Debtor stating that the notice was being sent pursuant to the federal Fair Debt Collection Practices Act ("FDCPA") to collect on the debt.  The notice also identified the loan servicer as the creditor on the loan.

 

The Debtor filed suit against the Law Firm in federal district court, claiming that the notice sent to him by the Law Firm violated Section 1692e of the FDCPA by falsely representing that the loan servicer was the "creditor" on the loan.  The Debtor claimed that the loan servicer, having been assigned a debt already in default solely for purposes of collecting on the debt, was not a "creditor" under the FDCPA.

 

The Law Firm moved to dismiss for failure to state a claim.  The district court granted the motion, ruling that the loan servicer was a "creditor" according to the "ordinary meaning" of the term and, further, that even if the loan servicer were not a "creditor" under the FDCPA, it was harmless error to use the term with respect to the servicer, because the loan servicer had the authority to foreclose and otherwise act as the creditor on the loan.

 

The Debtor appealed.  The Eleventh Circuit vacated and remanded.

 

As you may recall, the FDCPA defines a "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed," but expressly excludes from the definition "any person to the extent that he receives an assignment or transfer of a debt in default solely for purposes of facilitating collection of such debt for another."  15 U.S.C. § §1692a(4). In addition, the FDCPA requires a debt collector to send the debtor a written notice containing "the name of the creditor to whom the debt is owed" and subjects debt collectors to liability for "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. §§ 1692e, 1692g(a)(2), 1692k(a).

 

After ruling that a false representation in connection with the collection of a debt need not be misleading or deceptive to constitute a violation under the FDCPA, the Eleventh Circuit noted that the Debtor's complaint contained allegations as to the date of default, that the debt was assigned to the loan servicer after the default, and that the Law Firm violated the FDCPA by falsely identifying the loan servicer as the "creditor" in its debt collection notice.   Construing the allegations in the Debtor's favor, the Court concluded that the Law Firm's statement in the collection notice falsely identified the loan servicer as the "creditor" and that the Law Firm could be liable to the Debtor for potential damages and attorneys fees.

 

Accordingly, the Eleventh Circuit held that the Debtor's complaint stated a claim under the FDCPA.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: 4th Cir Holds 3-Year TILA Rescission Period Does Not Require Filing Suit Within 3 Years

The U.S. Court of Appeals for the Fourth Circuit recently held that, where borrowers had sent written notice of rescission to a loan servicer within the three-year time limit under TILA, the borrowers had exercised their right to rescind and there was thus no need for them to file a lawsuit within that time period in order to further invoke the rescission right. 

 

A copy of the opinion is available at:

http://pacer.ca4.uscourts.gov/opinion.pdf/102295.P.pdf.

 

Plaintiffs-Appellants (Borrowers) refinanced their home mortgage loan and executed a deed of trust to secure the loan.  The loan ultimately became part of an asset securitization trust with defendant bank acting as trustee ("Loan Owner").  The Borrowers later defaulted on the loan.  The substitute trustee then initiated a foreclosure action against the Borrowers, and, within three years of the loan transaction, the Borrowers notified the loan servicer in writing that they were exercising their right to rescind under the federal Truth in Lending Act ("TILA").
 
About five months after the loan servicer rejected the Borrowers' demand for rescission -- and over three years after the loan transaction -- the Borrowers filed suit against the Loan Owner, the substitute trustee, and the servicer (collectively, "Defendants"), seeking, among other things, to enjoin the mortgage foreclosure sale and to rescind the loan.  The original lender was not a party to the lawsuit.

 

In their complaint, the Borrowers alleged in part that the Defendants:  (1) failed to provide them certain disclosures required under TILA and Regulation Z;  (2) engaged in unfair trade practices in violation of the North Carolina Unfair and Deceptive Trade Practices Act ("NCUDTPA"); and  (3) violated state usury law. 

 

The Defendants removed the case to federal district court and filed a motion to dismiss, which the district court granted.  The Borrowers appealed, challenging among other things the district court's dismissal of their TILA, usury, and NCUDTPA claims. 

 

The Fourth Circuit affirmed in part, reversed in part, and remanded, ruling that in order to exercise the right to rescind,  a borrower need only send written notification of rescission within TILA's three-year period.

 

As you may recall, the Truth in Lending Act provides in relevant part that "[a]n obligor's right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact that the information and forms required under this section or any other disclosures required under this part have not been delivered to the obligor." 15 U.S.C. § 1635(f).
  
In addition, TILA's implementing Regulation Z provides in part that "[t]o exercise the right to rescind, the consumer shall notify the creditor of the rescission by mail, telegram or other means of written communication.  Notice is considered given when mailed, when filed for telegraphic transmission or, if sent by other means, when delivered to the creditor's designated place of business." 12 C.F.R. § 1026.23(a)(2).

 

Noting a split of authority as to whether a borrower must file a lawsuit within three years after entering into a loan agreement to exercise the right to rescind, or whether a borrower need simply send  written notice within the three-year period, the Fourth Circuit ruled that the district court improperly dismissed the Borrowers' rescission claims as untimely. 

 

In so doing, the Court of Appeals, referring to the statutory and regulatory language, stated:   "[t]aking the plain meaning of these texts, and assuming that the words say what they mean and mean what they say, we come to the conclusion that the [Borrowers] exercised their right to rescind with the [rescission] letter. Simply stated, neither 15 U.S.C. § 1635(f) nor Regulation Z says anything about the filing of a lawsuit, and we refuse to graft such a requirement upon them."

 

Distinguishing between "the issue of whether a borrower has exercised [the] right to rescind [and] the issue of whether the rescission has . . . been completed and the contract voided[,]" the Court ruled that a borrower exercises the right of rescission merely by providing written notice to the creditor of his intent to rescind.   The Court observed, however, that to complete the rescission and void the contract "[e]ither the creditor must 'acknowledge[] that the right of rescission is available' and the parties must unwind the transaction amongst themselves, or the borrower must file a lawsuit so that a court may enforce the right to rescind."    See American Mortgage Network, Inc. v. Shelton, 486 F.3d 815, 821 (4th Cir. 2007) ("unilateral notification of cancellation does not automatically void the loan contract.")

 

In so ruling, the Fourth Circuit noted that Beach v. Ocwen Fed. Bank, 523 U.S. 410, 417 (1998), neither addressed the proper method of exercising a right to rescind nor the timing of that right.  Instead, the Fourth Circuit ruled that the three-year limitation in Section 1635(f) "concerns the extinguishment of the right of rescission and does not require borrowers to file a claim for the invocation of that right."
 
Turning to the other issues before it, the Court concluded that under TILA's Section 1641(c), a consumer having the right to rescind may rescind as against an assignee of the original creditor, such as the Loan Owner and other defendants in this case. 

 

In addition, the Fourth Circuit ruled in part that:   (1) the Borrowers' claim for damages was not barred by  TILA's one-year statute of limitations, as the alleged TILA violation occurred when the servicer refused to rescind the loan transaction;  (2) the Borrowers had adequately pled the four elements of a state usury claim; and  (3) the Borrowers' NCUDTPA claims could proceed, because there was a sufficient factual basis for the TILA and usury claims, which claims may constitute a per se violation of the NCUDTPA. 

 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: 7th Circuit Rules in Favor of Defendant in FACTA Truncation Case

The U.S. Court of Appeals for the Seventh Circuit recently held that printing the last four digits of a customer's credit card account number, rather than the last four digits of the customer's credit card number, which was different under the facts of the case, did not constitute a willful violation of the Fair and Accurate Credit Transactions Act.  A copy of the opinion is attached.  
  
The defendant's ("Defendant") private label credit cards listed both a nine-digit "account number" and a five-digit "card number."  Defendant printed the last four digits of the former number on customer receipts.  A credit card holder ("consumer") initiated a class action lawsuit, alleging that this practice violates the Fair and Accurate Credit Transactions Act, 15 U.S.C. 1681c(g) ("FACTA").  The lower court found in favor of the plaintiff, and Defendant appealed. 

 

As you may recall, FACTA provides that credit card receipts may not display more than the last five digits of a credit card number.  15 U.S.C. 1681c(g).  "Card number" is not defined in the statute. Those who "willfully fail[ ] to comply" with the statute are liable for both actual and punitive damages of not less than $100.  15 U.S.C. 1681n(a)(1)(A). 

 

The consumer argued that by printing a portion of the "account number" rather than a portion of the "card number," the defendant violated FACTA. 

 

The Seventh Circuit began by noting that the neither FACTA nor its legislative history define "card number."  However, it went on to observe that "we can't see why anyone should care how the term is defined.  A precise definition does not matter as long as the receipt contains too few digits to allow identify theft." 

 

The Court further observed that neither the consumer nor the class she purported to represent had alleged any damages as a result of identity theft, nor had they alleged that the defendant's actions had subjected them to the risk of identity theft. 

 

Calculating the potential award on a classwide basis, the Seventh Circuit noted "[a]n award of $100 to everyone who has used a [Defendant] Card at a [Defendant] station would exceed $1 billion, despite the absence of a penny's worth of injury."

 

The Seventh Circuit examined whether the defendant's actions might constitute a "willful" violation of FACTA.  It cited binding precedent indicating that only an "objectively unreasonable" reading of FACTA constitutes a "willful" violation.  Safeco Insurance Co. v Burr, 551 U.S. 47, 69 (2007). 

 

To determine whether the defendant's interpretation of FACTA might be objectively unreasonable, the Court scrutinized the language of the statute.  It noted that FACTA refers to both "card number" and "account number" in the section concerning the truncation of credit card numbers, and therefore concluded that "card number" as used in FACTA does not necessarily refer to the primary credit card account number.  Indeed, the Court noted that "card number" might plausibly be read to refer to any numbers appearing on a credit card. 

 

In light of the ambiguity in the statute, and the absence of any determinative regulatory or legislative history, the Court did not find persuasive the plaintiff's expert testimony regarding industry standards for printing credit card receipts.

 

Accordingly, the Seventh Circuit held that the defendant did not willfully violate FACTA, and reversed the decision of the lower court. 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: Cal App Confirms No Requirement to Record Assignment to Note Holder in Foreclosure of Deed of Trust

The California Court of Appeal, First District, recently held that California's statutory requirement to record an assignment to the note holder prior to foreclosure applied only to mortgages and not to deeds of trust, and that a non-judicial foreclosure sale on a deed of trust was valid without a pre-sale recording reflecting the assignment to the note holder.  

 

A copy of the opinion is available at: 

http://www.courtinfo.ca.gov/opinions/documents/A131023.PDF.

 

As you may recall, Cal. Civ. Code § 2932.5 provides as follows: "Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded."

 

Plaintiff Borrower defaulted on a residential mortgage loan secured by a deed of trust.  After the borrower's default, a substitute trustee ("Trustee") sold the property at public auction to the servicer ("Purchaser").  Shortly after the sale, a Trustee's Deed Upon Sale was recorded in favor of the Purchaser. 

 

The Borrower later filed a complaint against the Trustee and the Purchaser, attempting to assert numerous causes of action, including unfair competition and unlawful business practices under California's Business and Professional Code.   The complaint alleged that the foreclosure was unlawful because there was no recorded assignment to the note holder prior to the foreclosure sale.  The Purchaser demurred, asserting that the Borrower had failed to state a claim because California's Civil Code Section 2932.5 did not require the recording of an assignment to the note holder when the note is secured by a deed of trust prior to foreclosure sale. 

 

After sustaining the demurrer and denying the Borrower's motion for reconsideration, the trial court entered judgment in favor of the Trustee and Purchaser. 

 

The Borrower appealed.  The Court of Appeal affirmed. 

 

Relying on "well settled" federal and California case law, the Court of Appeal ruled that Section 2932.5 applied only to mortgages and not to deeds of trust.  See Stockwell v. Barnum, 7 Cal. App. 413 (1908).  In so doing, the Court observed that Stockwell distinguished between a mortgage, which creates only a lender's lien on the real property owned by the mortgagor, and a deed of trust, which passes legal title to a trustee possessing the power of sale, regardless of the holder of the underlying note.
 
Based on various federal and state court opinions that blurred the distinction between mortgages and deeds of trust, the borrower unsuccessfully argued that the purpose of Section 2932.5 is to allow borrowers to identify the holder of their loans.  The Court of Appeal noted that, contrary to the Borrower's assertion, "Section 2932.5 requires the recorded assignment of a mortgage so that a prospective purchaser knows that the mortgagee has the authority to exercise the power of sale," and that "[t]his is not necessary when a deed of trust is involved, as the trustee conducts the sale and transfers title."

The Court further observed that applying Section 2932.5 to deeds of trust would effectively transfer the power of sale to the lender, contrary to the terms of the trust deed and the state statutory requirements for transferring the power of sale to a different trustee.
  
In confirming that Section 2932.5 applied only to mortgages, the Court concluded that because title transfers to the trustee under a deed of trust, and thus enables the trustee to transfer marketable record title to a purchaser, there was no requirement to record an assignment to the note holder prior to the initiation of the non-judicial foreclosure of the deed of trust.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: CFPB Requests Information on Consumer Lending Arbitrations and Arbitration Agreements

The federal Consumer Financial Protection Bureau (CFPB) announced a Request for Information Regarding Scope, Methods, and Data Sources for Conducting Study of Pre-Dispute Arbitration Agreements.

 

A copy of the Request is available at:

http://files.consumerfinance.gov/f/201204_cfpb_rfi_predispute-arbitration-agreements.pdf

As you may recall, the Dodd-Frank Act requires the CFPB to study the use of pre-dispute arbitration clauses in consumer financial markets, and allows the CFPB to issue related regulations for the protection of consumers.

For example, the CFPB requests information regarding:

• The prevalence of use of arbitration clauses in consumer financial products and services;
• The use and impact of arbitration proceedings, including what claims consumers and companies bring in arbitration;
• The use and impact of arbitration agreements outside of arbitrations, such as on the price and availability of financial services products to consumers.

The CFPB expressly states that it is not seeking comment on either: (a) whether it should, by regulation, prohibit or impose conditions or limitations on the use of pre-dispute arbitration agreements with respect to consumer financial products or services; or (b) whether any such regulation would serve to protect consumers or otherwise be in the public interest.

Responses to the Request for Information are due by June 23, 2012.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: Ill App Ct Holds Penalties for TCPA Violations Not Insurable

The Appellate Court of Illinois, Fourth District, recently held that the damages provided for by the Telephone Consumer Protection Act ("TCPA") were punitive, and therefore not insurable under Illinois law. 

 

A copy of the opinion is available at:

http://www.state.il.us/court/Opinions/AppellateCourt/2012/4thDistrict/4110527.pdf.
 
Theodor W. Lay ("Lay") operated a real estate agency.  He faxed an advertisement regarding a real estate property to numerous recipients who had not previously consented to the receipt of such a communication, including Locklear Electric, Inc. ("Locklear").  Locklear initiated a class action against Lay, on the grounds that the latter's faxed advertisements violated the TCPA. 

 

Although Lay was insured by Standard Mutual Insurance Company ("standard"), he opted to engage independent counsel, and settled with Locklear.  Per the terms of the settlement, Lay assigned his rights against Standard to Locklear, and Locklear agreed not to otherwise pursue Lay's assets.

 

The federal district court approved the settlement.  Separately, Standard filed a declaratory action to determine its responsibility for coverage.  In that action, both Standard and Locklear filed cross motions for summary judgment, and the trial court granted Standard's motion, finding that Standard had no duty to defend, and no duty to indemnify.  Locklear appealed. 

 

As you may recall, the TCPA makes it unlawful to send unsolicited advertisements via fax machines, and creates a private right of action for recipients of such communications.  Plaintiffs may sue for actual damages, or $500 per violation, whichever is greater.  47 U.S.C. s. 227(b).  In Illinois, punitive damages are not insurable. 

 

On appeal, the case turned on whether the TCPA's damages provision constituted punitive damages. 

 

The Court observed that a statutory penalty must "(1) impose automatic liability for a violation of its terms;" (2) set forth a predetermined amount of damages; and (3) impose damages without regard to the actual damages suffered by the plaintiff."  McDonald's Corp. v. Levine, 108 Ill. App. 3d 732, 738, 439 N.E. 2d 475, 480 (1982). 

 

With that standard in place, the Court held that "the $500 in...damages provided in the TCPA is a penalty and is in the nature of punitive damages."  It reached that conclusion predominantly on the basis that the actual damages suffered by a plaintiff upon receipt of a single unwanted fax were likely to be quite small, and bore little relationship to the $500 in punitive damages provided for by statute.    

 

Therefore, the Court determined that TCPA damages are "not insurable as a matter of Illinois law and are not recoverable from Standard."  Accordingly, the Court affirmed the judgment of the lower court.

 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: 11th Cir Rules No Private Right of Action Under HAMP

The U.S. Court of Appeals for the Eleventh Circuit recently held that the Home Affordable Modification Program ("HAMP") does not create a private cause of action.  Our prior update regarding a similar Seventh Circuit opinion is below.

 

A copy of the Eleventh Circuit's opinion is available at:

http://www.ca11.uscourts.gov/opinions/ops/201115166.pdf.
 
Plaintiff-appellant borrower (the "borrower") defaulted on his mortgage loan, and attempted to arrange a loan modification with defendant-appellee lender ("lender").  Although the two parties agreed to a temporary modification, the lender then indicated that it would not extend a permanent loan modification to the borrower.     

 

The borrower sued, alleging that the lender had not complied with its obligations under HAMP. The borrower alleged breach of contract and promissory estoppel, among other claims, in connection with his HAMP allegations. 

 

The lower court found in favor of the lender, on the grounds that HAMP does not provide a private cause of action.  In addition, the lower court found that the borrower's claims failed as a matter of law if considered independently of HAMP.  The borrower appealed. 

 

Because HAMP does not expressly create a private right of action for borrowers, the Eleventh Circuit began its analysis by reviewing the relevant factors to determine whether HAMP might create an implied right of action: (1) whether the plaintiff is one of the class for whose "especial benefit" the statute was enacted; (2) whether there is any indication of legislative intent for or against the creation of a private right of action; (3) whether an implied remedy for the plaintiff is consistent with the purposes of the statute; and (4) whether the cause of action is one traditionally relegated to state law. 

 

After consideration of those factors, the Eleventh Circuit held that "it is clear that no private right of action exists" under HAMP. 

 

To reach that conclusion, the Court first examined the purpose of the Emergency Economic Stabilization Act of 2008 and HAMP, which it noted was to "restore liquidity and stability to the financial system of the United States."  12 U.S.C. Sec. 5201(1).  Further, the Court found no evidence of legislative intent to create a private right of action. 

 

Next, the Court found that "providing a private right of action against mortgage servicers contravenes the purposes of HAMP...because it would likely chill servicer participation based on fear of exposure to litigation." 

 

Finally, the Eleventh Circuit observed that contract and real property law are traditionally "the domain of state law." 

 

Accordingly, and "because none of the relevant factors favor an implied right of action, we conclude that no such right exists." 

 

The Court also considered whether the borrower might have valid claims under state law.  It concluded that he did not.  The borrower did not argue that his breach of contract claim was independent from the lender's obligations under HAMP, and abandoned any argument along those lines.  Moreover, the relevant state law provided that recovery on a theory of promissory estoppel is possible only where the defendant made a promise upon which the plaintiff reasonably relied.  Because the borrower did not make any factual allegations to indicate that the lender promised to modify his loan, the Court found that the promissory estoppel claim failed. 

 

Therefore, the Eleventh Circuit affirmed the lower court's dismissal of the borrower's complaint. 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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---

On 3/14/2012 11:26 PM, Ralph Wutscher wrote:

The U.S. Court of Appeals for the Seventh Circuit recently held that a borrower stated valid state law claims in connection with a mortgage servicer's alleged refusal to make a HAMP loan modification permanent after the borrower complied with a "trial" modification.  A copy of the opinion is attached. 

 

The borrower allegedly entered into a four month "trial" loan modification pursuant to a Trial Period Plan ("TPP") with the mortgage loan servicer ("Servicer"), wherein Servicer agreed to permanently modify the loan if she qualified under the HAMP guidelines.  The borrower alleged that she timely made all four payments under the TPP, and that she otherwise qualified for a permanent modification, but that Servicer nevertheless refused to grant her a permanent modification. 

 

The borrower then brought a putative class action asserting seven counts: (1) breach of contract; (2) promissory estoppel; (3) breach of the Servicer Participation Agreement; (4) negligent hiring; (5) fraudulent misrepresentation or concealment; (6) negligent misrepresentation or concealment; and (7) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"). 

 

The district court dismissed the lawsuit in its entirety pursuant to Rule 12(b)(6).  The district court reasoned that the borrower's claims were premised on Servicer's obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements.  The borrower then appealed with respect to all claims except the alleged breach of the Service Participation Agreement. 

 

On appeal, the Seventh Circuit noted there were "two sets of issues."  The first issue concerned "whether [the borrower] stated viable claims under Illinois common law and ICFA."  The second issue concerned whether the state-law claims were "preempted or otherwise barred by federal law."  The Seventh Circuit concluded that the borrower stated viable causes of action with respect to her breach of contract, promissory estoppel, fraudulent misrepresentation and ICFA claims, and that HAMP does not preempt otherwise viable state-law claims. 

 

The Seventh Circuit held that the borrower asserted a valid common law claim for breach of contract, by properly pleading the six elements: (1) offer and acceptance, (2) consideration, (3) definite and certain terms, (4) performance by the plaintiff of all required conditions, (5) breach, and (6) damages. 

 

Servicer argued that there was no "offer" because the TPP was not an enforceable offer to permanently modify the mortgage, as it was conditioned on further review of financial information following its completion to make sure the borrower qualified under HAMP.  The Court disagreed, and noted that the promise was conditioned on acts by the borrower to comply with the requirements of the TPP and on her financial information remaining true and accurate.  The Court held that "[o]nce [Servicer] signed the TPP Agreement and returned it to [the borrower], an objectively reasonable person would construe it as an offer to provide a permanent modification agreement if she fulfilled its conditions."   

 

The Seventh Circuit further held that the TPP contained sufficient consideration because the borrower "incurred cognizable legal detriments," and "agreed to open new escrow accounts, to undergo credit counseling (if asked), and to provide and vouch for the truth of her financial information." 

 

Moreover, the requirement "definite and certain terms" was met because although "the trial terms were just an 'estimate' of the permanent modification terms, the TPP fairly implied that any deviation from them in the permanent offer would also be based on [Servicer's] application of the established HAMP criteria and formulas."  Thus, "[t]he terms of the TPP [were] clear and definite enough to support [the borrower's] breach of contract theory." 

 

The Seventh Circuit further also that the borrower asserted a valid promissory estoppel claim, by pleading the elements that (1) defendant made an unambiguous promise to plaintiff; (2) plaintiff relied on such promise; (3) plaintiff's reliance was expected and foreseeable; and (4) plaintiff relied on the promise to her detriment.  The Court held that the borrower properly alleged that Servicer made an unambiguous offer to give her a permanent loan modification if she complied with the terms of the TPP, that the borrower reasonably relied on that promise, and that the reliance led to her detriment because she lost the opportunity to use other remedies to save her home, or simply default. 

 

The Seventh Circuit held that the borrower's claims based on negligence were barred by the economic loss doctrine, which "bars recovery in tort for purely economic losses arising out of a failure to perform contractual obligations."  While there are a number of exceptions to the economic loss doctrine, each are rooted in the general rule that "[w]here a duty arises outside of the contract, the economic loss doctrine does not prohibit recovery in trot for the negligent breach of that duty."  The Court held that "[t]o the extent [Servicer] had a duty to service [the borrower's] home loan responsibly and with competent personnel, that duty emerged solely out of its contractual obligations."  Therefore, the Seventh Circuit ruled the claims based on negligence were properly dismissed. 

 

However, the Court held that the borrower stated a claim for fraudulent misrepresentation, noting that there is an exception to the economic loss doctrine "where the plaintiff's damages are proximately caused by a defendant's intentional, false representation, i.e., fraud."  The Seventh Circuit further held that the borrower adequately pled the elements of a fraudulent misrepresentation claim, which are (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from that reliance.

 

The Seventh Circuit noted that "the only element seriously at issue on the pleadings is reasonable reliance."  The Court held that "the TPP as a whole supports [the borrower's] reading of it to require [Servicer] to offer her a permanent loan modification once it determined she was qualified and sent her an executed copy, and she satisfied the conditions precedent." 

 

The Court further held that though the claim represented promissory fraud (i.e. a false statement of intent regarding future conduct), it was nevertheless actionable because the plaintiff alleged it was part of a scheme to defraud, where she accused [Servicer] of a deliberately implementing a "system designed to wrongfully deprive its eligible HAMP borrowers of an opportunity to modify their mortgages." 

 

However, the Seventh Circuit held that the borrower failed to state a claim for fraudulent concealment, which requires a plaintiff to plead all the elements of fraudulent misrepresentation, as well as alleging "the defendant intentionally omitted or concealed a material fact that it was under a duty too disclose to the plaintiff."  The Court held that Servicer did not have a "fiduciary or confidential relationship" with the borrower, nor did it involve a "situation where plaintiff places trust and confidence in defendant, thereby placing defendant in a position of influence and superiority over plaintiff." 

 

The Seventh Circuit held the borrower adequately pled a ICFA claim, which requires pleading (1) a deceptive or unfair act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during the course of conduct involving trade or commerce.  Moreover, "a plaintiff must demonstrate that the defendant's conduct is the proximate cause of her injury."  In asserting her claim, the borrower incorporated her common law fraud claims.  Additionally, she alleged that Servicer "dishonestly and ineffectually implemented HAMP." 

 

In holding that all the elements for ICFA were met, the Seventh Circuit disagreed with the district court, which dismissed the claim on the grounds that the borrower did not alleged Servicer acted with intent to deceive and because she did not allege pecuniary damages.  The Seventh Circuit stated that "'intent to deceive' is not a required element of a claim under the ICFA, which provides redress 'not only for deceptive business practices, but also for business practices that, while not deceptive, are unfair.'"  The Court also held that the borrower alleged actual pecuniary loss because, among other things, she "incurred costs and fees" and "lost other opportunities to save her home." 

 

After ruling that the borrower asserted several valid state law causes of action, the Seventh Circuit further held that federal law did not preempt or displace the borrower's claims arising out of state law.  In so holding, the court noted that "[p]reemption can take on three different forms: express preemption, field preemption, and conflict preemption."  Servicer conceded that express preemption did not apply, but argued for both field and conflict preemption.  Servicer further argued what the Court called a "novel theory" that the borrower's claims were displaced because they attempt an "end-run" on the lack of a private right of action under HAMP.  The Seventh Circuit held that none of the theories applied.

 

A state law is preempted under field preemption "if federal law so thoroughly occupies the legislative field 'as to make reasonable the inference that Congress left no room for the States to supplement it.'"  Servicer argued that the Home Owners Loan Act ("HOLA") occupies the relevant field, and that HOLA and the corresponding Office of Thrift Supervision ("OTS") regulations displace state common-law suits that effectively impose any standards for the processing and servicing of mortgage loans, whether the conflict with federal policy or not. 

 

The Seventh Circuit held that such a reading was "directly at odds with the saving clause of 12 C.F.R. § 560.2(c), and inconsistent with [its] decision in [In re Ocwen Loan Servicing, LLC Mortg. Servicing Litigation, 491 F.3d 638 (7th Cir. 2007]."  In Ocwen, the court held that "HOLA and the OTS regulations did not preempt suits by 'persons harmed by the wrongful acts of savings and loan associations' seeking 'basic state common-law-type remedies.'"  The court further noted that Ocwen "stands for the principle that HOLA preempts generally applicable state laws only when they 'could interfere with federal regulation' – that is, those that actually conflict with the regulatory program."  Thus, the Court held that field preemption did not apply.

 

Implied conflict preemption may apply where either (1) it is impossible for a private party to comply with both state and federal requirements, or (2) where sate law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.  Servicer did not contend it would be impossible to comply with state-law duties without violating federal law.  Instead, it argued the second version of conflict preemption, known as "obstacle" preemption. 

 

Servicer argued that allowing the borrower's state-law claims would undermine the purposes of Congress by substantially interfering with Servicer's ability to service residential mortgage loans," and "frustrate Congressional objectives in enacting [the 2008 Act] . . . to stabilize the economy and provide a program to mitigate 'avoidable' foreclosures." 

 

The Seventh Circuit held that the first argument was inconsistent with Ocwen, because there the court held that "conventional" state law claims for breach of contract, fraud, and deceptive business practices complemented rather than conflicted with HOLA.  The Court also found that the second argument lacked merit, holding "[t]here is no indication that Congress meant to foreclose suits against servicers for violating state laws that impose obligations parallel to those established in a federal program." 

 

Finally, the Seventh Circuit held that the "end-run" theory to preemption did not apply.  "The end-run theory is built on the novel assumption that where Congress does not create a private right of action for violation of a federal law, no right of action may exist under state law, either."  However, the Seventh Circuit noted that the issue was not "whether federal law itself provides private remedies, but whether it displaces remedies otherwise available under state law."  The Court held that "[t]he absence of a private right of action from a federal statute provides no reason to dismiss a claim under a state law just because it refers to or incorporates some element of the federal law." 

 

"To find otherwise would required adopting the novel presumption that where Congress provides no remedy under federal law, state law may not afford one in its stead." 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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