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In re Figard

382 B.R. 695 (Bankr. W.D. Pa. 2008)
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In re Figard

22 Citing cases

  1. Conley v. Central Mortg. Co.

    414 B.R. 157 (E.D. Mich. 2009)   Cited 6 times

    A party may file an objection to a claim under the Federal Rules of Bankruptcy Procedure Rule 3007. However, "there must be some evidence present in order to overcome the prima facie case established by a proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure.Figard v. PHH Mortgage Corp. (In re Figard), 382 B.R. 695, 711 (W.D. Penn. 2008). Moreover, a party who objects to a properly filed proof of claim without any evidence may face sanctions.

  2. In re Dougal

    395 B.R. 880 (Bankr. W.D. Pa. 2008)   Cited 10 times
    Holding that a state court judgment could not be collaterally attacked in federal court with the argument that litigant's attorney entered into judgment without authority

    On May 23, 2008, the Court ultimately allowed the Amended Complaint to be filed, Document No. 35, except that any purported "class action" language was stricken. On February 26, 2008, the Honorable Jeffery A. Deller of this Court decided In re Figard, 382 B.R. 695 (Bankr. W.D. Pa. 2008). The court concluded that when a general claim is made with allegations that a lender violated certain duties in connection with the grant of a loan (as was alleged in Count I of the Original Complaint in this case) such an allegation amounted to a simple negligence claim barred by the "gist of the action" doctrine.

  3. In re Payne

    Case No. 01-23896, Adv. No. 04-06078 (Bankr. D. Kan. May. 8, 2008)

    In re Rawlings, 64 F. Supp. 2d 1156, 1165 (M.D. Ala. 1999). 12 U.S.C. § 2601(a); In re Figard, 382 B.R. 695, 712 (Bankr. W.D. Pa. 2008).Id.

  4. In re Payne

    387 B.R. 614 (Bankr. D. Kan. 2008)   Cited 49 times
    Concluding that the servicer's failure to properly account for a Chapter 13 repayment plan kept the "Debtors' principal balance artificially high and accruing more interest than it should," and that the servicer wrongfully rejected payments because it erroneously considered the debtors to be in default

    Rawlings v. Dovenmuehle Mortgage, Inc., 64 F.Supp.2d 1156, 1165 (M.D.Ala. 1999). 12 U.S.C. § 2601(a); In re Figard, 382 B.R. 695, 712 (Bankr.W.D.Pa.2008). Id.

  5. In re Adams

    CASE NO. 1-06-bk-02006MDF, ADV. NO. 1-07-ap-00122MDF (Bankr. M.D. Pa. Apr. 24, 2008)

    In re Morristown Erie R. Co., 885 F.2d 98, 100 (3d Cir. 1989).In re Figard, 382 B.R. 695, 713 (Bankr. W.D. Pa. 2008). In Figard, debtors filed an adversary complaint against the mortgagee alleging "violations" of § 506(b) in the filing of a proof of claim.

  6. Simon v. FIA Card Services, N.A.

    732 F.3d 259 (3d Cir. 2013)   Cited 160 times   6 Legal Analyses
    Holding that letters proposing foreclosure alternatives were actionable because there is no requirement that one demand payment but only that the communication convey information about a debt

    Similar issues have arisen in cases involving bankruptcy debtors asserting violations of the Real Estate Settlement Practices Act (RESPA), 12 U.S.C. §§ 2605 et seq., and Regulation X, 24 C.F.R. § 3500. See, e.g., Conley v. Cent. Mortg. Co., 414 B.R. 157, 159–61 (E.D.Mich.2009) (RESPA applies in bankruptcy); Laskowski v. Ameriquest Mortg. Co. (In re Laskowski), 384 B.R. 518, 528 (Bankr.N.D.Ind.2008) (RESPA applies in bankruptcy); Figard v. PHH Mortg. Corp. (In re Figard), 382 B.R. 695, 710–12 (Bankr.W.D.Pa.2008) (RESPA applies in bankruptcy); Payne v. Mortg. Elec. Registration Sys., Inc. (In re Payne), 387 B.R. 614, 634 (Bankr.D.Kan.2008) (RESPA applies in bankruptcy); Holland v. EMC Mortg. Corp. (In re Holland), 374 B.R. 409, 440–43 (Bankr.D.Mass.2007) (RESPA applies in bankruptcy); Rodriguez v. R & G Mortg. Corp. (In re Rodriguez), 377 B.R. 1, 7–8 (Bankr.D.P.R.2007) (RESPA applies in bankruptcy); Ameriquest Mortg. Co. v. Nosek (In re Nosek), 354 B.R. 331, 338–39 (D.Mass.2006) (RESPA does not apply in bankruptcy); see also Jacques, 416 B.R. at 70–74 (declining to decide the issue). The Ninth Circuit has taken a broad approach, holding that a debt collector's communications to a consumer debtor in the context of a bankruptcy proceeding cannot be the basis for an FDCPA claim.

  7. Payne v. Seterus Inc.

    CIVIL ACTION NO. 16-0203 (W.D. La. Aug. 26, 2016)   Cited 4 times
    Dismissing a RESPA claim where Plaintiff failed to indicate how a servicer's inadequate response "caused the reduction in his credit rating, and fail[ed] to allege damage caused by the alleged reduction in his credit rating"

    Courts are divided as to whether RESPA is preempted by the Bankruptcy Code. See, e.g., In re Figard, 382 B.R. 695, 2008 WL 501356 (Bankr. W.D. Pa. 2008) (court finds that Bankruptcy Code does not preempt provisions of RESPA, 12 U.S.C. § 2605(e)(2)); In reHolland, 374 B.R. 409 (Bankr. D. Mass. 2007) (Bankruptcy Code does not preempt RESPA); In re Nosek, 354 B.R. 331 (D. Mass. 2006) (court finds Bankruptcy Code preempts RESPA and state statutory and common law).

  8. Moore v. Caliber Home Loans, Inc.

    Case No. 1:14-cv-852 (S.D. Ohio Sep. 3, 2015)   Cited 5 times

    Nothing in these statutory provisions excuses a loan servicer from fulfilling its obligations thereunder, including the availability of discovery in litigation or a prior response to a CFPB complaint. See Figard v. PHH Mortg. Corp., 382 B.R. 695, 712 (Bankr. W.D. Pa. 2008); see also 12 C.F.R. § 1024, Supplement I, ¶ 35(e)(3)(i)(B) (indicating servicer compliance with section 1024.35(e) required even when foreclosure sale pending). Plaintiffs also have pled actual damages relating to the misapplication of payments to their account, the dismissal of a foreclosure action "without prejudice," and out-of-pocket costs of representation to try to resolve the issue.

  9. Lewis v. Ford Motor Co.

    263 F.R.D. 252 (W.D. Pa. 2009)   Cited 13 times
    Denying class certification in a UTPCPL action because "each class member would have to show not only justifiable reliance but also loss as a result of that reliance, aspects subject to individual, rather than common questions of law or fact," and concluding "that such lack of commonality renders this case unsuitable for class treatment"

    (Complaint, ¶ 34.A.ii.) Cases handed down before Hunt include Grimm v. Wash. Mut. Bank, CA No. 08-828, 2008 WL 2858377 at *5-6, 2008 U.S. Dist. LEXIS 55628 at *15-18 (W.D.Pa. July 22, 2008); Mertz, 2007 U.S. Dist. LEXIS 15708, *25-31, 2007 WL 710263, *9-12 (Mar. 6, 2007); Balko v. Carnegie Fin. Group., Inc., 382 B.R. 717, 723-724 (Bankr.W.D.Pa.2008); Figard v. PHH Mortg. Corp., 382 B.R. 695, 715-716 (Bankr.W.D.Pa.2008); Flores, 246 F.Supp.2d at 431-432 (Oct. 29, 2002); and Patterson v. Chrysler Fin. Co., 263 B.R. 82, 91-93 (Bankr.E.D.Pa.2001). Opinions entered shortly after Hunt was handed down include Davis v. Mony Life. Ins. Co., CA No. 08-938, 2008 WL 4170250, *5-6, 2008 U.S. Dist. LEXIS 69736, *15-16 (W.D.Pa. Sept. 2, 2008) (relying solely on cases decided before Hunt ); and Hansford, 2008 WL 4078460 at *13-14, 2008 U.S. Dist. LEXIS 65502 at *37-39 (Aug. 26, 2008).

  10. Seldon v. Home Loan Services, Inc.

    647 F. Supp. 2d 451 (E.D. Pa. 2009)   Cited 136 times
    Holding plaintiff failed to allege justifiable reliance when he did not allege how his knowledge of mortgage loan's actual terms would have changed his conduct in signing the mortgage

    Fourth, in many cases in this circuit, courts have determined that a plaintiff's claim for deceptive conduct under the catchall provision does not require alleging the elements of common law fraud. See Chiles, 551 F. Supp. 2d at 399; Flores v. Shapiro Kreisman, 246 F. Supp. 2d 427, 432 (E.D. Pa. 2002); In re Figard, 382 B.R. 695, 716 (Bankr. W.D. Pa. 2008). Consequently, this court concludes that for a claim under the catchall provision of the UTPCPL, if a plaintiff alleges deceptive conduct, a plaintiff need not allege the elements of common law fraud, but, conversely, must do so if a plaintiff alleges fraudulent conduct.