Prior to the enactment of Real Property Actions and Proceeding Law (“RPAPL”) § 1302-a, defendants waived their affirmative defense of standing in a residential foreclosure action by failing to raise that defense in an answer or a pre-answer motion to dismiss.  See, e.g., JP Morgan Chase Bank, Nat’l Ass’n v. Butler, 129 A.D.3d 777, 780 (2d Dep’t 2015).  However, since the enactment of RPAPL § 1302-a, which became effective on December 23, 2019, defendants can raise a standing defense at any time in a residential foreclosure action.  This issue arises both where the borrower defaulted in the foreclosure action and seeks to vacate that default to assert a standing defense and where an answer was filed but no standing defense was initially asserted. The Second Department has recently issued decisions addressing both the interplay between the new statute and a borrower’s default in answering and an answering defendant’s ability to amend to assert a standing defense after summary judgment was granted. In addition, the Court of Appeals has recently clarified application of the statute in the context of an appeal of an order entered prior to the enactment of RPAPL § 1302-a.
Continue Reading The Appellate Courts Look at the Waiver of Standing Defenses post-RPAPL § 1302-a

In a case of appellate first impression in New York, the Appellate Division, Second Department, held that a mortgagor cannot make a Real Property Actions and Proceedings Law (“RPAPL”) 1304 argument in opposition to a motion for Judgment of Foreclosure and Sale – even if that was pled as a defense in the mortgagor’s Answer – where the prior summary judgment motion was unopposed.

In Wells Fargo Bank, N.A. v. Harrigan,[1] after the lender commenced a foreclosure action in Suffolk County against the mortgagor, the mortgagor filed an Answer, containing an RPAPL 1304 compliance defense, specifically that a 90-day notice was not properly mailed.  The lender moved for summary judgment and the mortgagor failed to oppose that motion, apparently because of some unspecified law office failure.  Thereafter, the lender moved for Judgment of Foreclosure and Sale and the mortgagor cross-moved for vacatur of the summary judgment order and dismissal of the action based on the lender’s purported failure to demonstrate RPAPL 1304 compliance.Continue Reading RPAPL Arguments May be Waived: Case of Appellate First Impression

Yesterday the New Jersey Bureau of Securities (“NJBOS”) issued its Rule Proposal titled “Fiduciary Duty of Broker-Dealers, Agents, Investment Advisers, and Investment Adviser Representatives”.  Below is a link to the Press Release, which in turn includes a link to the Rule Proposal itself.  The Rule Proposal would amend existing section N.J.A.C. 13:47A-6.3 and then add new section N.J.A.C. 13:47A-6.4.

https://www.njconsumeraffairs.gov/News/Pages/04152019.aspx

We have reviewed the Rule Proposal and identify the below highlights.  The public comment period on the Rule Proposal ends June 14, 2019.  The Rule would take effect 90 days after a Notice of Adoption is published.  Let us know if we can be of any help, even if it is just to talk through the new proposed requirements.Continue Reading New Jersey Issues Rule Proposal on Uniform Fiduciary standard

As noted in our prior update, we continue to cover the NJBOS’ rulemaking activity relating to a uniform fiduciary standard applicable to all investment professionals.  On Monday, November 19, 2018 we attended the second public hearing held by the NJBOS.  There were approximately 40 attendees at the second hearing, with 16 speakers, representing diverse interests, putting formal comments on the record (there were seven speakers at the first hearing).

Three takeaways from the second hearing:
Continue Reading New Jersey Bureau of Securities (“NJBOS”) holds second public hearing on its Pre-Proposal for a Rule implementing a uniform fiduciary standard

This morning we attended the first public hearing held by the NJBOS concerning its pre-proposal to adopt a rule implementing a uniform fiduciary standard for investment professionals, including broker-dealers and investment advisers.  The hearing was administered by New Jersey officials, including Christopher Gerold, Chief of the NJBOS.  There were approximately 40 attendees from diverse backgrounds – investment firms, industry groups, in-house and outside counsel, and consultants.  Here are three takeaways from the hearing:
Continue Reading Today the New Jersey Bureau of Securities (“NJBOS”) began public hearings on its Pre-Proposal for a Rule implementing a Uniform Fiduciary Standard for Investment Professionals

Today the New Jersey Bureau of Securities began rulemaking on a proposed uniform fiduciary standard for investment professionals.  Attached below is the Bureau’s Notice of Pre-Proposal.  Comments on the Pre-Proposal are due to the Bureau by December 14, 2018, and the Bureau will hold two (2) informal conferences (on November 2 and November 19, 2018)

Earlier this week, New Jersey Governor Phil Murphy announced that the New Jersey Bureau of Securities would start rulemaking to “impose a fiduciary duty on all New Jersey investment professionals, requiring them to place their clients’ interests above their own when recommending investments.”  The rule is aimed at reconciling the different standards of care that

In an important decision for the collection industry, the court in Michel v. Credit Protection Ass’n L.P., No. 14-cv-8452, 2017 WL 3620809 (N.D. Ill. Aug. 23, 2017), refused to find a debt collection company liable under the TCPA for cell phone calls made on behalf of one creditor (ComEd) when the plaintiff’s oral revocation of consent related to a different creditor (Comcast).  The Michel court reasoned that obtaining consent under the TCPA is creditor-specific and so revocation should be creditor-specific as well.
Continue Reading Debt Collector Not Liable Under the TCPA for Post-Revocation Calls Made On Behalf of a Different Creditor

On Friday, in a decision certain to please the business community as well as the Chair and new majority of the Federal Communications Committee, the D.C. Circuit struck down parts of the FCC’s October 30, 2014 Order, 29 F.C.C. Rcd. 13998 (FCC 14-164), requiring that solicited faxes (those sent with consent of the recipient) must

In a January 10, 2017 decision, United States District Judge Thomas M. Rose in the Southern District of Ohio ruled that plaintiffs, who claimed to be investors in a Ponzi scheme operated by customers of PNC Bank, failed to state a claim against PNC Bank, National Association and The PNC Financial Services Group, Inc. (collectively, “PNC”) for allegedly violating the Ohio Securities Act, Ohio Rev. Code § 1707.01, et seq. Cruz v. PNC Bank, N.A., No. 3:16-cv-292, slip op. (S.D. Ohio Jan. 10, 2017).  Plaintiffs alleged that PNC was liable for their losses because the alleged ringleaders of the fraud, William and Connie Apostelos (who are currently awaiting trial on various federal criminal charges), deposited virtually all of the funds they raised from investors into a PNC business account and made interest payments to investors from the account.  Plaintiffs claimed that by providing the Aposteloses with account services and allegedly allowing them to use PNC facilities, PNC participated in the sale of unregistered securities by the Aposteloses.
Continue Reading Ohio Federal Court Rules That Bank Is Not Liable Under Ohio Securities Act For Providing Ordinary Banking Services To Customers Who Operated Ponzi Scheme