Case Summaries

Banking Law

[02/01] Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole
The litigation privilege applies in all causes of action, statutory as well as common law.

[02/01] Long Island Savings Bank, FSB v. US
In a Winstar-related case, summary judgment for banks on the government's counterclaim and affirmative defenses and an award for the banks in the amount of nearly $435 million, are reversed where the contract claims against the government under an Assistance Agreement were forfeited under 28 U.S.C. section 2514, due to fraud against the government.

[01/31] Martinez v. Giacobbe
Judgment for attorney's fees in foreclosure proceedings is affirmed where the court retained jurisdiction after the foreclosure judgment to award post-judgment fees, but reversed where the trial court did not have jurisdiction to award fees for work performed in the bankruptcy court.

[01/31] Berry v. American Express Publ'g, Inc.
Sustaining without leave to amend demurrers to complaint for injunctive relief based on the California Consumer Legal Remedies Act, regarding arbitration provision in agreements, is affirmed as the extension of credit, such as issuing a credit card, separate and apart from the sale or lease of any specific goods or services, does not fall within the scope of the act.

[01/29] Weiss v. Washington Mut. Bank
A lawsuit challenging a federal savings and loan association's prepayment penalty formula is preempted by the federal Home Owners' Loan Act and the regulations promulgated by the federal Office of Thrift Supervision.

[01/29] McKenna v. First Horizon Home Loan Corp.
Class certification in a class-action under the Truth In Lending Act is reversed where the district court lacked the authority to certify a class of residential borrowers who might potentially be eligible for rescissionary relief under the TILA and the Massachusetts Consumer Credit Cost Disclosure Act.

[01/29] Bianchi v. US
In a case arising from contracts to produce military clothing and defaulted loans to finance plaintiff's performance of the contracts, dismissal of plaintiff's suit for lack of subject matter jurisdiction is reversed in part where the court had jurisdiction over a claim of breach of a settlement agreement with the government, but the claim is remanded with directions to enter judgment in favor of the government on the merits.

[01/26] Laliberte v. Pacific Mercantile Bank
In a case alleging that defendant's failure to disclose closing fees in refinance loans violated the Truth in Lending Act, orders sustaining demurrers to class allegations are reversed as the trial court erred in denying plaintiffs leave to amend the class definition in their third amended complaint.

[01/26] Acevedo v. First Union Nat'l Bank
In case where defendant refused to honor cashier's checks issued by a failed bank, whose assets and liabilities defendant assumed, summary judgment for defendant bank is affirmed as 12 U.S.C. section 1822(e) did not require mailed notice of the assumption since the identities and addresses of the depositors were unknown to the FDIC.

[01/25] First American Title Inc. Co. v. Superior Ct. (Sjobring)
In an action alleging unlawful title insurance practices, an order granting motion to a class action representative plaintiff, who is not a member of the class he purports to represent, in order to obtain precertification discovery for the express purpose of identifying a member of the class who is willing to become a named plaintiff is vacated, as the current plaintiff is a stranger to the action. The grant of such discovery would sanction an abuse of the class action procedure.

[01/24] Citizens Fed. Bank v. US
In a Winstar related case, a ruling holding that the government breached an agreement with a savings and loan company that the latter could use a particular method of accounting in determining its capital for regulatory purposes, and an award of damages of approximately $18,600,000, are affirmed over the government's claim that breach of the agreement did not cause the injury for which the plaintiffs were awarded damages.

[01/22] First Union Nat'l Bank v. Pictet Overseas Trust Corp., Ltd.
Summary judgment for defendant-counterclaimant in a dispute arising from a merger is reversed where the district court erred upon remand in finding that the law of the case doctrine compelled a finding that plaintiff owed defendant a fiduciary duty, and a statutory defense barring individual liability had been constructively pled to preclude a summary judgment in the absence of additional legal determinations.

[01/18] US v. Berger
A conviction and restitution order for conspiracy, loan fraud, falsifying corporate books, and various securities fraud violations is affirmed over claims of error regarding: 1) improper coersion of the jury into reaching a verdict; 2) violation of defendant's constitutional right to be present during trial when the district court ? with counsel's consent ? made certain comments at an informal meeting with the jury outside of defendant's presence; 3) use of the wrong materiality standard for securities fraud violations; 4) the indictment failure to charge with sufficient particularity the materiality element for securities fraud violations; and 5) the restitution order. The sentence is vacated and remanded per Booker.

[01/17] DeLeo v. Wachovia Bank, N.A.
An order compelling appellant to answer questions in aid of execution of a judgment obtained by a bank is reversed and remanded where the trial court abused its discretion by failing to rule on each individual question for which he asserted the Fifth Amendment privilege against self-incrimination.

[01/17] In Re: Olympic Mills Corp.
Bankruptcy Appellate Panel decision subjecting defendant-appellant to over $3 million in liability for retaining loan payments in breach of trust is affirmed where: 1) the unambiguous language of the subordination agreement in question covered loans made after the execution of the agreement; 2) defendant cannot support an argument for equitable estoppel without a showing that he was induced to rely on plaintiff's representations; and 3) defendant waived his argument that the bankruptcy court's award did not accurately reflect expectation damages.

[01/16] Henrichs v. Valley View Dev.
In an appeal stemming from a state court quiet title action, dismissal of plaintiffs' claims is affirmed, although on different grounds, where two claims were barred by the Rooker-Feldman doctrine, one claim failed on mootness grounds, and another failed based upon res judicata.

[01/16] Tatis v. US Bancorp
Summary judgment for defendant-bank in an action for breach of contract, negligence, and violation of Ohio law based on the bank's payment of forged checks drawn on plaintiff-professional baseball player's account is affirmed where plaintiff failed to promptly examine his monthly statements and failed to report the forgeries within the prescribed thirty day time period.

[01/12] US, ex rel., Atkinson v. Pa. Shipbuilding Co.
Dismissal of a qui tam action under the False Claims Act (FCA) alleging that defendants-companies conspired to, and did, defraud the United States Navy in connection with a contract to build oil tankers is affirmed where the action had to be dismissed in its entirety under Fed. R. Civ. P. 12(b)(1) for want of jurisdiction as: 1) all of the allegations and transactions involved in each of the counts were publicly disclosed under 31 U.S.C. section 3730(e)(4)(A); 2) plaintiff was not an original source of any of the allegations or transactions at issue; and 3) a plaintiff cannot rely solely on information available in the public domain to substantiate original source status under section 3730(e)(4)(B)

[01/09] In Re: Christine H. Lazarus
Refusal to set aside a mortgage in a bankruptcy proceeding is vacated and remanded where: 1) there was a preferential transfer under 11 U.S.C. section 547(b) and 2) the transferred mortgage was not rescued from avoidance by any exception to section 547(b) provided by section 547(c).

[12/15] Wachovia Bank v. Lifetime Indus., Inc.
Evidence that an optionee has obtained title to property that is the subject of the option is not sufficient to extinguish an intervening lien when there is no evidence that the optionee's title was obtained pursuant to the option.

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