The CFPB Takes Aim at Arbitration Clauses in Contracts for Consumer Financial Products

Schnader Alert by Monica Clarke Platt:

The Consumer Financial Protection Bureau (CFPB) last week issued two proposals aimed at weakening and discouraging arbitration clauses in contracts for consumer financial products. First, the CFPB proposes prohibiting the application of arbitration clauses to class actions proceeding in court. Specifically, the Bureau is considering a requirement that arbitration clauses in covered consumer financial contracts provide that the arbitration agreement is inapplicable to putative class actions filed in court unless and until class certification is denied or the class claims are dismissed. This proposal could significantly increase putative class claims in the consumer finance sector (indeed, increasing access to class litigation appears to be the Bureau’s goal). Second, the Bureau seeks to require entities that use arbitration agreements in their contracts to submit to the Bureau notice of claims filed in arbitration proceedings and arbitration awards, potentially for publication.

Please click here to read the full Alert.

The U.S. Supreme Court Unanimously Rules Against the Creditor in Jesinoski

By Stephen A. Fogdall

We predicted here that at least five U.S. Supreme Court Justices would reject the creditor’s argument in Jesinoski v. Countrywide Home Loans, Inc. that a borrower must file a lawsuit within three years of the consummation of the loan in order to preserve the statutory right to rescind under the Truth in Lending Act. As it turned out, the Court rejected that argument unanimously, holding instead that mere written notice to the creditor within the three-year period is sufficient. “[The statute] explains in unequivocal terms how the right to rescind is to be exercised,” the Court stated. “It provides that a borrower ‘shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so’ (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue within three years.”

Pennsylvania Supreme Court Formally Adopts “Gist of the Action” Doctrine

By Stephen J. Shapiro

Pennsylvania’s “gist of the action” doctrine prohibits plaintiffs from pursuing tort claims for what are, in actuality, breach of contract claims.  A variety of defendants, including those in the financial services industry, regularly have invoked the doctrine to seek dismissal of contract-based claims that are “dressed up” as tort claims in an effort to pursue damages – such as consequential and punitive damages – that might not be available under a breach of contract claim.

Although the Pennsylvania Supreme Court had never formally recognized the doctrine, the intermediate appellate courts in Pennsylvania, as well as the Third Circuit, had applied the doctrine for years, predicting that the Supreme Court would adopt the doctrine if given the opportunity.  In the recent case Bruno v. Erie Insurance Company, the Pennsylvania Supreme Court confirmed the accuracy of those predictions.

In Bruno, the plaintiff homeowners purchased an insurance policy from the defendant insurer that, among other things, insured the homeowners against physical loss to the property caused by mold.  While renovating their home, the homeowners discovered mold growing on their basement walls.  Agents of the insurer told the homeowners that the mold was harmless and that they should continue with the renovations, which they did.  When the homeowners began to suffer from severe respiratory ailments, they had the mold tested and learned that it was toxic.  One of the homeowners later developed cancer, which her physician believed was caused by the toxic mold.  Unable to remove the mold, the homeowners eventually were forced to demolish the house.

The homeowners sued the insurance company for, among other causes of action, negligence, alleging that the insurer negligently misled them about the health risks posed by the mold.  The insurer filed preliminary objections to the negligence claim, arguing that it was barred by the gist of the action doctrine.  The trial court sustained the preliminary objections and, on an interlocutory appeal, the Superior Court affirmed the dismissal of the negligence claim, holding that “the gravamen of [the homeowners’] action . . . sounds in contract – not in tort.”

On appeal, the Pennsylvania Supreme Court formally adopted the gist of the action doctrine.  The Court explained that a claim can be categorized as a contract claim or a tort claim as follows:

“If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract – i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract – then the claim is to be viewed as one for breach of contract.  If however, the facts establish that the claim involved the defendants’ violation of a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort.”

The Court went on to specify that:

“[A] negligence claim based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises which comprise the contract.  Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed.”

The Court cautioned that, when applying the gist of the action doctrine, the substance of the plaintiff’s allegations, not the label placed on the claim, governs:  “[T]he substance of the allegations comprising a claim in a plaintiff’s complaint are of paramount importance, and, thus, the mere labeling by the plaintiff of a claim as being in tort, e.g., for negligence, is not controlling.”

Applying the gist of the action doctrine to the facts before it, the Court held that the homeowners’ negligence claim was “not based on [the insurer’s] violation of any . . . contractual commitments.”  Rather, the homeowners alleged that the insurer’s agents acted negligently “while they were performing [the insurer’s] contractual obligation to investigate the claim made by the [homeowners] under their policy.”  Because, the Court explained, “[t]he policy in this instance merely served as the vehicle which established the relationship between the [parties], during the existence of which [the insurer] allegedly committed a tort,” the gist of the action doctrine did not bar the homeowners’ negligence claim.  Therefore, the Court reversed and remanded for further proceedings.

NJ Banks May Not Face Common Law Tort Claims for Improper Electronic Funds Transfers

By Edward J. Sholinsky

The New Jersey Supreme Court in a matter of first impression held that a non-customer of a bank cannot bring a common law negligence claim against that bank for an improper money transfer via the Internet.  In ADS Associates Group, Inc. v. Oritani Savings Bank, the court held that the state legislature intended Article 4A of the UCC to create the exclusive remedy for an alleged breach of a duty when a bank makes an electronic funds transfer and preempts any common law remedies.

At issue in ADS was whether New Jersey’s version of the UCC provides the exclusive remedy when a non-customer alleged an unauthorized electronic funds transfer via online banking, or whether the non-customer could bring a common law negligence claim against the bank.  The trial court held that a non-customer could not bring a common law negligence claim; the state’s intermediate appellate court reversed in an unpublished opinion.  The Supreme Court reversed the appellate court and reinstated the judgment of the trial court.

Plaintiff Brendan Allen entered into a business relationship with co-defendant Asnel Diaz Sanchez to bid on a large construction project.  Rather than creating a new entity, Allen and Sanchez used Sanchez’s then-existing business ADS Associates, Inc., to bid because ADS was an established minority-owned business.  The pair went to Oritani Savings Bank and opened an account.  The account agreement required both Allen and Sanchez to sign checks drawn on the account.  The account agreement also allowed both Allen and Sanchez, as authorized signatories, to use online banking to transfer funds.  Sanchez had other ADS accounts at the bank, and eventually began to electronically transfer money from the ADS account he opened with Allen to other ADS accounts without Allen’s permission.

When Allen discovered the allegedly unauthorized transfers, he brought suit, in his own name and in the name of ADS, against both the bank and Sanchez.  The suit stated claims alleging violations of Article 4A of the UCC, as well as common law claims.  It was undisputed that ADS, and not Allen, was the bank’s customer.  At issue in the Supreme Court was “whether Allen may maintain a common law non-customer negligence claim against Oritani.”

Article 4A of the UCC (codified in New Jersey at N.J.S.A. 12A:4A-101, et seq.) controls the electronic transfer of funds.  The statute sets out a detailed regime for properly authorized electronic transfers, including online banking transfers, and allocates the risk of loss between the bank and the customer.  Per the court, “Article 4A thus defines in detail the rights and obligations of banks and their customers in the event that funds are transferred in accordance with a payment order that the customer has not authorized.”  Relying on the commentary to Article 4A, the court determined that only a customer could pursue a remedy under Article 4A.

In reaching its conclusion, the court distinguished City Check Cashing, Inc. v. Manufacturers Hanover Trust Co., which held that, in the limited circumstances where a non-customer could show that he had a special relationship with the bank, the non-customer could assert a common law tort claim against the bank. The ADS court held that, regardless of any alleged special relationship, when a dispute arises out of “a bank’s acceptance of an order transferring funds from one account held by its customer to another of that customer’s accounts” that the “Legislature intended Article 4A to constitute the exclusive means of determining the rights, duties and liabilities of affected parties.”

Permitting a non-customer to bring a common law negligence action would “contravene” the risk allocation and redefine bank’s duties, which the court declared the “essential objective of Article 4A.” Indeed, the court reasoned that permitting non-customers to bring common law claims could give them more rights than bank customers in unauthorized transfer cases.

After ADS, in New Jersey only bank customers may bring claims against banks relating to unauthorized electronic transfers – including those made through online banking – and those claims only may be brought under Article 4A of the UCC.  Non-customers may not bring claims alleging breaches under the common law, because the exclusive remedy for those transfers is set out in Article 4A.

Ninth Circuit holds that, for purposes of diversity jurisdiction, a national bank is not a citizen of the state in which it maintains its principal place of business

By Stephen J. Shapiro

For purposes of determining diversity jurisdiction, national banks are “deemed citizens of the States in which they are . . . located.” 28 U.S.C § 1348.  In the recent case Rouse v. Wachovia Mortgage, FSB, the Ninth Circuit held that a national bank is not “located” in the state of its principal place of business, but rather is located only in the state of its main office.

The plaintiffs in Rouse sued Wells Fargo in California state court for claims relating to their home loan. The bank removed the case to federal court, alleging both federal question and diversity jurisdiction. When the plaintiffs, who are citizens of California, amended their complaint to assert only state law causes of action, the district court concluded that it lacked diversity jurisdiction and remanded the case to state court. The district court reasoned that the parties were not diverse because, in addition to being a citizen of South Dakota, the state in which its main office is located, the bank also is a citizen of California, the state in which its principal place of business is located.

On appeal, the Ninth Circuit reversed. The Court first noted that, although the Supreme Court held in Wachovia Bank, N.A. v. Schmidt that a national bank is not “located” for purposes of section 1348 in each state in which it has a branch, it did not address the instant question – whether a national bank is a citizen of the state in which it maintains its principal place of business. Therefore, the Ninth Circuit set out to determine the Congressional intent behind section 1348.

Looking to the history of the diversity statutes, the Court observed that, at the time the current version of section 1348 was enacted (in 1948), state-chartered corporations were deemed citizens only of the states in which they were incorporated. In 1958, though, Congress revised 28 U.S.C. § 1332(c)(1) to provide that state-chartered corporations also would be considered citizens of the states in which they maintain their principal places of business. When it made this change, however, Congress did not amend section 1348 to make a similar change for national banks. Given that history, the Court concluded that: (1) at the time it enacted section 1348, Congress did not intend that a national bank’s principal place of business would determine its citizenship; and (2) Congress purposefully passed on the opportunity to provide otherwise by refraining from amending section 1348 as it had amended section 1332(c)(1). Therefore, the Ninth Circuit (like the Eighth Circuit) held that “under § 1348, a national banking association is a citizen only of the state in which its main office is located.”

Fifth Circuit says prevailing lender in a wrongful foreclosure action may seek attorney’s fees under Rule 54(d)(2)

By Stephen J. Shapiro

Under Federal Rule of Civil Procedure 54(d)(2), a prevailing party that has a contractual or statutory right to recover attorney’s fees may request those fees by filing a motion within 14 days of entry of the judgment, “unless the substantive law requires those fees to be proved at trial as an element of damages.” In Richardson v. Wells Fargo Bank, N.A., the Fifth Circuit held that attorney’s fees recoverable under the standard Fannie Mae/Freddie Mac deed of trust are not an “element of damages,” and lenders therefore can seek them by way of a Rule 54(d)(2) post-judgment motion.

In Richardson, after the plaintiff defaulted on her mortgage, her lender sold the property securing the mortgage at a foreclosure sale. The plaintiff then brought claims against the lender relating to the foreclosure. The district court entered judgment in favor of the lender on its motion for summary judgment.

The deed of trust that the plaintiff signed in connection with her mortgage contained an attorney’s fee clause identical to the fee provision in the standard Fannie Mae/Freddie Mac deed of trust for single-family, residential mortgages. Relying on that clause, the lender moved for attorney’s fees under Rule 54(d)(2). The district court denied the lender’s motion, holding that the attorney’s fees were an element of damages that the lender could have sought to recover by pursing a counterclaim, but could not recover under Rule 54(d)(2).

The Fifth Circuit reversed. The Court first noted that, under the controlling Texas law, “collateral” legal costs, such as attorney’s fees incurred in the defense of a claim, are not considered damages. Rather, only attorney’s fees that constitute an independent ground for recovery – such as unpaid legal fees in a suit brought by a lawyer against a client – are considered an element of damages. Because the attorney’s fee clause in the deed of trust permitted the lender to recover fees incurred in defending against the plaintiff’s suit, the fees did not qualify as damages and the lender was entitled to pursue them on a motion under Rule 54(d)(2). Therefore, the Court remanded the case to the district court for further proceedings on the merits of the lender’s motion to recover its legal fees.

National banks should be unhappy with the Supreme Court’s new removal decision

By Stephen A. Fogdall

At one time, regulations issued by the Office of the Comptroller of the Currency prohibited state officials from bringing enforcement actions against national banks under state law. The OCC perceived such actions as an exercise of “visitorial powers,” which state officials might assert over their own state-charted banks, but which they could not assert over national banks. Then, in 2009, the U.S. Supreme Court decided Cuomo v. Clearing House Association, L.L.C. That decision rejected the OCC’s position and held that a national bank can be sued by a state attorney general acting to enforce a state law against the bank (at least if the state law is not itself substantively preempted by federal law).

While Clearing House left national banks exposed to state enforcement actions, it said nothing about where these actions could be litigated. Some federal courts interpreted a provision of the Class Action Fairness Act in a way that would permit a national bank to remove such actions from state court to federal court. This provision states that a so-called “mass action” — meaning an action “in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact” — is removable to federal court so long as it meets the removal requirements otherwise applicable to class actions. Some courts, including the U.S. Court of Appeals for the Fifth Circuit, interpreted the language “100 or more persons” to include not only cases involving 100 or more named plaintiffs, but also cases seeking monetary relief on behalf of 100 or more real parties in interest. On this interpretation, an enforcement action filed by a state attorney general seeking monetary relief on behalf of residents of a state would be removable under CAFA, provided at least 100 residents were putatively entitled to relief.

Last week, the U.S. Supreme Court unanimously rejected this interpretation in Mississippi ex rel. Hood v. AU Optronics Corp. The Court held that “100 or more persons” in CAFA means 100 or more named plaintiffs. In a typical enforcement action brought by a state attorney general, there is only one named plaintiff (the attorney general). Thus, the Court concluded, such an action is not removable as a “mass action” under CAFA.

The combined effect of Clearing House and AU Optronics is that national banks now not only are subject to enforcement actions brought by state attorneys general under state law, but they will generally be stuck litigating such actions in state court.

%d bloggers like this: