In A Putative Class Action, The Third Circuit Holds That A Plaintiff Must Show Detrimental Reliance On Improper Loan Disclosure Statements To Obtain Actual Damages Under The Truth In Lending Act (TILA)

Posted on February 1, 2010 by Sheppard Mullin
By Shannon Petersen

On December 31, 2009, the Third Circuit held that a borrower must prove detrimental reliance to obtain actual damages for a violation of the federal Truth in Lending Act (“TILA”). See Vallies v. Sky Bank, —F.3d—, 2009 WL 5154473 (3rd Cir. 2009).

Under TILA, the federal government requires that lenders make certain disclosures to borrowers about the terms of their loans before lending them money. TILA claims are at the epicenter of the mortgage litigation crises. Over the past two years, TILA claims, including class action claims, have flooded the state and federal courts. Most of these claims involve allegations that some technical TILA disclosure violation has occurred.

Though not a mortgage case, the allegations of the borrower in Vallies v. Sky Bank are typical. The plaintiff alleged that the finance charge statement made by the bank for an auto loan was misleading in that it did not include $395 representing the amount of the debt cancellation insurance, which the plaintiff alleged should have been included in the finance charge statement under TILA. The district court granted summary judgment in favor of the bank because the borrower had failed to show that (1) he had read the TILA disclosure statement pertaining to finance charges, (2) he had understood the finance charges being disclosed, (3) had the disclosure been accurate by including an additional $395, he would have sought better terms or foregone the loan, and (4) if he had sought better terms, he would have obtained them.

The Third Circuit declined to state the specific facts or circumstances that constitute detrimental reliance under TILA, but affirmed the decision of the district court that detrimental reliance must be shown and had not been shown here. In so holding, the Third Circuit relied on the language of TILA itself, which provides for both actual damages and statutory damages. According to the Third Circuit, to obtain actual damages, a plaintiff must show causation by showing that he or she relied on a misleading or improper loan disclosure statement to his or her detriment. In contrast, to obtain statutory damages, a plaintiff must only show that a violation of TILA has occurred. (For class action suits, statutory damages under TILA are capped at the lesser of $500,000 or 1% of the defendant’s net worth.).

In reaching its decision, the Third Circuit considered but rejected as irrelevant the concerns of some legal commentators, who have noted that under a detrimental reliance standard actual damages for TILA loan disclosure violations may be difficult to prove. The court also disregarded the fact that “detrimental reliance may create obstacles for class certification because of the individualized fact-specific nature of the reliance inquiry.” The court distinguished other case law, holding that detrimental reliance under TILA is not necessary, on the grounds that those cases involved claims for statutory damages, not actual damages, under TILA.

Finally, the Third Circuit noted that it joined the holding of every other circuit court that has addressed the issue, including the First, Fifth, Sixth, Eighth, and Ninth Circuits. Citing United States v. Petroff-5 Kline, 557 F.3d 285, 297 (6th Cir. 2009) (“[A]ctual damages require a showing of detrimental reliance.”); McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1192 (9th Cir. 2008) (finding no valid basis to overturn the rule of In re Smith requiring a showing of detrimental reliance to establish actual damages); Gold Country Lenders v. Smith (In re Smith), 289 F.3d 1155, 1157 (9th Cir. 2002) (“Wejoin with other circuits and hold that in order to receive actual damages for a TILA violation . . . a borrower must establish detrimental reliance.”); Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (en banc) (“We hold that detrimental reliance is an element of a TILA claim for actual damages . . . .”); Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433, 434–40 (5th Cir. 2000) (holding that detrimental reliance is an element of a claim for actual damages); Peters v. Jim Lupient Oldsmobile Co., 220 F.3d 915, 917 (8th Cir. 2000)(requiring a showing of proximate causation and adopting a four-prong reliance test for establishing actual damages); Bizier v. Globe Fin. Servs., Inc., 654 F.2d 1, 4 (1st Cir. 1981) (noting in dicta the need to show causation for an award of actual damages “in addition to a threshold showing of a violation of a TILA requirement”).

Under this law, it is not enough, as plaintiffs in TILA cases often do, to allege that a TILA loan disclosure violation has occurred. Instead, a plaintiff must also allege and prove that he or she relied on the misleading or improper statement and as a result of this reliance suffered actual damage. This recent decision of the Third Circuit also emphasizes the difficulty of certifying a class action for actual damages under TILA. Even where the named plaintiff has detrimentally relied on an improper loan disclosure statement, such reliance can rarely be universally inferred for other, unnamed class members. Instead, to determining detrimental reliance usually requires an individual inquiry about whether the class member read the disclosure statement, understood it, and relied on it to his or her detriment. For this reason, such cases are very difficult to certify for class treatment. See, e.g., Stout v. J.D. Byrider, 228 F.3d 709, 718 (6th Cir. 2000) (affirming the denial of class certification based on the need for individualized assessment of whether “each putative class member relied upon false representations or failures to disclose” under TILA).

Davies v. Ndex- Palintiff’s Supplemental Reply to Defendants Objection for an Evidence Hearing 4-26-2010

From: b.daviesmd6605



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MERS submitted the following to Salt Lake Tribune Letter to the Editor. We have not yet learned whether they will publish it.


“The Tribune’s April 24 article on MERS was filled with errors and missing facts—facts that we had provided to the writer before the article was published.
Contrary to the article’s assertion, MERS does not remove land ownership information from public records because that information was never there to begin with. MERS fills an information void that the county records have never provided. We track the changes in servicing rights and note ownership, and we have helped numerous homeowners find their note owner. In fact, homeowners can contact their mortgage company through MERS and MERS can connect them with the note owner of their mortgage loan when the owner has agreed to be disclosed.
The borrower makes MERS the mortgagee with 100% transparency because they sign a document at closing acknowledging that MERS is the mortgagee. MERS also has a rule requiring that the note be presented at foreclosure.
Finally, the author failed to disclose that the article’s chief MERS critic, Christopher Peterson, is currently employed as a witness against MERS in a pending legal matter. This article provided a disservice to Tribune readers and they deserve better.”
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!BAM! Foreclosure Lawyers Face New Heat In Florida: Wall Street Journal AMIR EFRATI


April 29, 2010, 12:46 PM ET

By Amir Efrati The Wall Street Journal

Foreclosure DrThese are precarious times for lawyers in the business of filing foreclosure cases for banks. This is particularly true in one of the epicenters of the foreclosure crisis, Florida.

As we’ve noted before, the feds in Jacksonville recently started a criminal investigation of a company that is a top provider of the documentation used by banks in the foreclosure process. And a state-court judge ruled that a bank submitted a “fraudulent” document in support of its foreclosure case. That document was prepared by a local law firm.

For more Law Blog background on the foreclosure mess in our nation’s courts, this post will help.

The news today: the Florida Attorney General’s office said it has launched a civil investigation of Florida Default Law Group, based in Tampa, which is one of the largest so-called foreclosure-mill law firms in the state.

According to the AG’s website, it’s looking at whether the firm is “fabricating and/or presenting false and misleading documents in foreclosure cases.” It added: “These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient.”

The issue: judges are increasingly running into situations in which banks are claiming ownership of properties they actually don’t own. Some of them end up chewing out the lawyers representing the banks.

The AG’s office said Florida Default Law Group appears to work closely with Lender Processing Services — the company we referenced earlier that is being investigated by the Justice Department.

LPS processes and sometimes produces documents needed by banks to prove they own the mortgages. LPS often works with local lawyers who litigate the foreclosure cases in court. Sometimes those same law firms produce documents that are required to prove ownership.

We’ve reached out to Florida Default Law Group and LPS and will let you know if we hear back.


UPDATE: Cannot confirm YET but others might be as well! Stay Tuned!

FDLG, LPS’ DocX is being investigated…lets see who’s next!

If you have evidence of Fraud make sure you contact them.

Active Public Consumer-Related Investigation

The case file cited below relates to a civil — not a criminal — investigation. The existence of an investigation does not constitute proof of any violation of law.
Case Number: L10-3-1095
Subject of investigation: Florida Default Law Group, PL
Subject’s address: 9119 Corporate Lake Drive, Suite 300, Tampa, Florida 33634
Subject’s business: Law Firm, Foreclosures
Allegation or issue being investigated:
Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases. These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the mortgage crisis and thousands of foreclosures per month. This firm is one of the largest foreclosure firms in the State. This firm appears to be one of Docx, LLC a/k/a Lender Processing Services’ clients, who this office is also investigating.
AG unit handling case: Economic Crimes Division in Ft. Lauderdale, Florida
View contact information for Ft. Lauderdale.
Related Stories:

MISSION: VOID Lender Processing Services “Assignments” (LPS)

She’s 100 years old and facing foreclosure: CHICAGO TRIBUNE


An army of volunteers seeks to help “Aunt Aggie,” a 100-year-old Monee woman who raised 40 foster kids on her farm

April 27, 2010|By Colleen Mastony, Chicago Tribune reporter

Let the bankers come with their foreclosure notices. Invite the building inspectors, too. At 100 years old, Agnes Albinger has lived on her 70-acre patch of farmland longer than most of those people have been alive.

She has seen two world wars come and go, survived the Depression — in part by subsisting on minnow stew — and raised 40 foster children. Now, she has become a rallying point in this rural community as she fights to keep her Monee farm.

“I’ll never leave,” she said one recent morning, as she stood with a walker on her sagging front porch, looking out over the fields she tended for most of her life. “I’d like to stay here until I die. This is my home. This was my land. I owned everything once. I worked awful hard on this place to make it what it was.”

As Albinger faces foreclosure on the property where she has lived since 1949, a coalition of friends and strangers has mobilized to help the woman everyone calls “Aunt Aggie.” They have set up a , Web site,, and volunteered to help with cleaning and repairs. On a recent Saturday, nearly 100 people showed up to clear brush and haul away rusting farm equipment.

For many in Will County, helping Albinger seems to be one of the few ways they can push back against the waves of foreclosures and layoffs that have swept the nation.

“It goes further than what’s happening to Agnes. This same thing is happening all over. The value of American land is going down, homes are foreclosing. All these bankers think about is how much money they can make,” said Jim Armstrong, 59, a friend who helped organize volunteers. “They don’t care that there’s people who live on this land, people who love this land.”

As for Albinger, she says she’d rather die than leave. Her body is stooped with age and her hands are gnarled from decades of labor. But her mind seems sharp, and she fiercely defends her right to live independently. ” Nursing homes are made for people who cannot help themselves,” said Albinger, who uses a walker and who has a live-in caretaker to help with the heavier chores. “I can cook my own meals. I can do my own dishes. I can do everything myself.”

But the question of her best interests remains complicated. The farm has fallen into disrepair. The yard is strewn with cast-off furniture, stacks of old tractor tires, two abandoned cars. The porch is piled with junk. The roof leaks and, until recently, Albinger kept her last chicken inside the house, to protect it from raccoons.

And yet, when asked what the place means to her, Albinger replied simply: “Home. Don’t you have a home? Then you know what it means. It’s security. Love. Peacefulness.”

From 1 big family to another

The fifth of 11 children, Albinger was born in 1909 to Lithuanian immigrant farmers who cultivated land they rented near Kankakee. As a child, she attended class in a one-room school house, herded cows on the open prairie and helped plow fields with a team of horses. After a failed harvest, the family moved to Chicago, where in 1940 Albinger married her husband, Matthew. “A wonderful husband,” she said.

The couple couldn’t have children of their own, so they became foster parents, taking in the orphaned and abandoned. They bought the farm in Monee in 1949. Back then, Albinger said the land was still “all prairies, all over. Wild animals, everywhere you could see.” But, a few years after they purchased the property, Matthew died of a heart ailment, she and family members said.

“When my husband died, I had the four (foster) kids,” Albinger recalled. “And the welfare let me keep them. They said they’ll be company for me. As they grew up, I got more.”

Over the years, she raised 35 boys and five girls. In 1969, she was nominated for Cook County Foster Mother of the Year, according to news clippings.

“She taught me everything — how to live and survive,” said Michael Follmann, 54, who had bounced between more than a dozen “pretty brutal” foster homes by the time he came to Albinger’s farm. “I was a hot-headed young boy at the age of 9 after all the stuff that happened to me. I didn’t trust or believe in anybody. Then Agnes stepped into my life and taught me what it was like to trust people again, to have faith in people.”

“In my opinion, she saved my life,” said Greg Crosby, 54, who was 5 years old when his father abandoned him and five other siblings. The children had been malnourished and close to starvation, Crosby said, when Albinger took them in — all six kids — and made sure that the state didn’t split them up. “She taught us how to garden and things like that. She taught us to take care of animals. It meant everything.”

“I got my work ethic and, I think, my integrity through her,” said Greg’s brother, Ray Crosby, 57.

“I still call her ‘Mom,’ ” said Richard Rose, 49, who was 6 when he came to the farm. “Who knows where I would be if it wasn’t for her.”

Albinger introduced her foster children to the wonders of farm life. She showed them how to feed baby chicks by dripping water off a fingertip, and how to use a hand crank to separate the milk from the cream. She kept all sorts of animals including, at times, two peacocks, a pony and a monkey.

Life followed the rhythms of the seasons. They planted corn in the spring, cut hay in the summer and brought turnips into the cellar in the fall.

As years passed, the children grew up and moved away. But Albinger kept the farm going and, even well into her 80s, still milked the cows by hand and kept a few head of beef cattle. “I used to overhaul my own tractors. I did all my own field work,” she said. “I wasn’t afraid of work.”

The farm had been free of debt, family members said, until 2000, when court and land records show that Albinger took out a $100,000 mortgage on the property. Albinger then began to sign over parcels of land to a trust and also to a company called Phoenix Horizon LLC, which according to state records was formed by Albinger’s niece, Bridget Gruzdis, 47.

In an e-mailed response to questions from the Tribune, Gruzdis said Phoenix Horizon was created “for the sole purpose of land development and sale.”

Over six years, Albinger and Gruzdis took out a series of mortgages on the farm, eventually borrowing $700,000, according to court and land records.

Albinger says she might have signed some papers but never knew about the mortgage debt. In September, the bank initiated foreclosure proceedings. As recently as last week, a prospective buyer walked the property, which was put on the market a few years ago by Phoenix Horizon and is listed for $4.6 million, according to Ron Sales, a real estate agent in the area. But Albinger and other family members said they didn’t even know the farm was for sale.

Monee Deputy Police Chief John Cipkar said that the department is investigating and detectives are trying to determine if “Agnes was in full knowledge of what she was doing” when she signed. DinSFLA- Course she didn’t! They knew what they were doing was pulling a scam!

Gruzdis said in her e-mail that Albinger is suffering from dementia — an assertion that other family members dispute. She said that Albinger was involved in the formation of Phoenix Horizon and that the mortgages were taken to cover Albinger’s expenses and to “provide funds for Phoenix Horizon’s business objectives.”

“Agnes absolutely did know,” Gruzdis wrote. “Agnes was personally involved and signed all documents with her own hand.” DinSFLA- Not so fast “STAR”…your part of the investigation!

‘If I get to live here…’

In Will County, many hope that Albinger will somehow be able to stay on her land. In preparation for a May 1 deadline set by the Monee code enforcement department, volunteers have cleaned out Albinger’s basement, removed a crumbling shed from the yard and towed away the old tractors. Next, they hope to fix up the interior of the house.

“You’d have to be coldhearted not to have some compassion for her,” said Jim Frazier, 57, a volunteer. “I feel that she should be able to stay there at least to live out the days she has left.”

Meanwhile, Albinger’s extended family is struggling to decide if they should move her to a nursing home, a place where they believe she would be well-cared for, but where they fear she would be unhappy. “Myself, I would like to see her stay,” said Bob Szorc, 68, a nephew. “I would like to see her retain her independence. And once she goes to a nursing home, that’s not going to happen.”

“If she goes to a nursing home, her life will be cut short. I don’t think she’ll care to live anymore,” said Patricia Ritacco, 72, a niece. “You know, sometimes when you take away what’s important to people, they can’t exist any longer.”

As for Albinger, she is enjoying spring on the farm. The daffodils are blooming in her garden and the lilac bushes have begun to flower along the northern fence line.

Even at 100 years old, Albinger is thinking about farming and making plans for the future. On a recent morning, she stood on her porch and eyed her last chicken, clucking in a cage. “She’s a nice little girl,” Albinger said. “If I get to live here, I’m going to buy a rooster and see if I can raise a couple of chicks.”

Where is OPRAH??? Chicago hello???