Court Upholds Class Action Waivers in Arbitration Clauses

Many contracts contain arbitration clauses. These clauses require the parties to submit to binding arbitration, rather than having their day in court. Typically, larger companies push for arbitration clauses. Part of the reason for a larger company to prefer an agreement to arbitrate is that such a clause may effectively waive an adverse party’s right to form a class and prosecute a class action.

In McKenzie Check Advance of Florida, LLC d/b/a National Cash Advance v. Betts, ____ So. 3d ____; 4D15-1893 (Fla. 4th DCA May 18, 2016) the court issued an opinion upholding such a provision. Reviewing a class action waiver in an arbitration clause, the court held that “the arbitration provision’s class action waiver is enforceable, and, therefore,” plaintiff would only be permitted to pursue an individual claim in arbitration.

The outcome of this case stems from a United States Supreme Court case, AT&T Mobility, LLC v. Concepion, 563 U.S. 333 (2011), in which the Supreme Court reasoned that “Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”

It appears that a class action waiver contained within an arbitration clause may be enforceable, depending upon other issues concerning the particular contract or agreement. Please contact Van Ness Law Firm, PLC, if you would like to discuss such a provision.

Van Ness prevails in due process appeal

On May 18, 2016, the Fourth District Court of Appeal agreed with Van Ness Law Firm, PLC and its client and reversed a final judgment entered in favor of a borrower. In Bank of Am., N.A. v. Fogel, ____ So. 3d ____; 2016 Fla. App. LEXIS 7648 (Fla. 4th DCA May 8, 2016), plaintiff had prevailed, initially, at the trial court level and received a judgment in its favor. Defendant filed a motion for rehearing, raising various issues with the judgment and plaintiff’s case. The trial court entered an order on October 15, setting an evidentiary hearing for October 20 and requiring plaintiff to complete various tasks within five days of the hearing. The order was mailed, not emailed, and was not mailed to an attorney at plaintiff’s law firm.

Van Ness argued that plaintiff had been denied procedural due process, because it was only provided with one business day’s notice of an evidentiary hearing. Van Ness further argued that the additional irregularities, in terms of not mailing the order to an attorney and requiring certain acts to be accomplished in an impossible timeframe, required reversal. The Court agreed, reversed the amended final judgment, and remanded the case to the trial court. A link to the opinion is below:

http://www.4dca.org/opinions/May%202016/05-18-16/4D14-4518.op.pdf

Florida Court Clarifies the Law Regarding E-Notes

In Rivera v. Wells Fargo Bank, N.A., ____ So. 3d ____ (Fla. 4th DCA Apr. 20, 2016), the court clarified Florida law regarding electronic notes. Plaintiff had sued borrowers who had taken out such a note for foreclosure and was successful at the trial court level. The borrowers appealed, which caused the court to clarify the law with regard to the enforcement and transfer of e-notes, as discussed, herein.

 

At trial, the borrowers objected to the introduction of a paper copy of the e-note, a certificate of authenticity, and the certificate’s attachments, into evidence. Plaintiff’s witness testified that the certificate of authentication illustrates the recordkeeping of the entity’s e-notes and attests to the e-note in question being in electronic form. The e-note and a document showing electronic possession were attached to the certificate. The borrower’s hearsay objection to this exhibit was overruled and, on cross examination, the witness agreed that there was no hard copy of the original note and there were no endorsements attached to it. On redirect, the witness testified that the payment history contains an acquisition screen which indicates when plaintiff became the servicer of the loan with the right to enforce the note.

 

The borrowers appealed, alleging, inter alia, that plaintiff failed to establish standing at the inception of the case, because it did not prove the following: (1) that the e-note contained the borrower’s signatures; or (2) that the purported owner of the e-note owned the e-note and authorized plaintiff to pursue the foreclosure. With regard to the borrowers’ first argument, the court reasoned that it was the borrower’s burden to come forward with “some evidence… which would support a finding that the signature is forged or unauthorized,” pursuant to section 673.3081(1), Florida Statutes.

 

The borrowers’ second argument required further scrutiny. Florida’s Uniform Electronic Transactions Act (hereinafter referred to as the “FUETA”), codified at section 668.50, Florida Statutes, provides in pertinent part that an e-note may be a “transferable record,” because it would be a note under Florida’s adaptation of Article 3 of the Uniform Commercial Code, were it to have been in writing. FUETA also provides that a person has control of such a transferable record if “a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.” Due to the fact that the testimony established that a single authoritative copy of the e-note exists and due to the fact that the subject copy is “unique, identifiable, and unalterable,” the court found that the requirement of reliable establishment relating to the transfer had been met. The court also found the testimony regarding the acquisition screen noteworthy.

 

FUETA applies to the enforcement and transfer of e-notes, provided that the e-note meets certain, statutorily defined criteria, one of which being that the e-note would be a typical mortgage promissory note, if the e-note were in writing. Transfer of the e-note is governed by a different set of rules than those governing the process of placing endorsements on or attaching allonges to a note. However, that does not mean that FUETA abrogates the State of Florida’s statutory implementation of the Uniform Commercial Code, with respect to e-notes.

 

Morgan L. Weinstein, Esq.
Van Ness Law Firm, PLC

Van Ness Law Firm Opens New Miami Location

bulidingVan Ness Law Firm has opened a second office in downtown Miami, Florida. The new location provides a strategic location directly across from the Miami-Dade County Courthouse and is located only a few blocks from the U.S. Bankruptcy Court.

The two Van Ness South Florida locations are located within 43 miles of three major courthouses in Palm Beach, Broward, and Miami-Dade, which account for almost 30 percent of all foreclosures filed in the state. Van Ness also has associate attorneys located physically in the Gulf Coast and Panhandle areas in order to make sure that only law firm staff handles crucial litigation hearings, trials, and mediations.

Van Ness, which opened in 2004, has always represented the mortgage servicing industry to include foreclosure litigation, creditor-side representation in bankruptcy, evictions, title, appeals and REOs. Prior to entering private practices, the firm’s founder, Tony Van Ness, worked at both Ocwen Federal Bank FSB (now Ocwen Loan Servicing) and Bayview Loan Servicing.

“I feel my servicing roots provide a unique perspective into building a firm that servicing clients would want to facilitate,” Van Ness said. “Being one of the older foreclosure firms in Florida completing our 12th year, we have seen the complete cycle of the industry. Continually reinvesting in the firm, having no debt and keeping relatively small allows us to be versatile in this ever changing industry. Our Scorecards speak for themselves.”

 

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