11th Circuit Court Rejects Claim that Mortgage Statements Sought Time Barred Debt in Violation of FDCPA – Burr & Forman

Commercial Mortgage: 04/27/05

The Eleventh Circuit rejected the argument, holding that Rule 10b-5(b) does not prohibit a mere failure to disclose material information, and in doing so gave its views on the difference between this case and one of insider trading, in which it said Rule 10(b)(5)(a) and (c) created insider trading liabilities beyond the scope of misleading disclosures prohibited in Rule 10(b)(5)(b).)

McCormick, No. 15-3983, (8th Cir. U.S. Court of Appeal) recently affirmed a bankruptcy court’s rejection of a proof of claim filed by a creditor where the claim was based upon a debt which was time barred by the creditor’s failure to comply with the applicable state law deadline for pursuing a deficiency judgment following a non-judicial.

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Defendants’ motion to dismiss argues four independent grounds justify dismissal of the claims: (1) the complaint fails to establish that federal jurisdiction exists; (2) the complaint fails to state any claims for relief; (3) the claims are barred judicial estoppel; (4) the complaint is an impermissible shotgun pleading in violation of Fed. R. Civ. P. 8(a). The first two arguments are sufficient to justify dismissal of the complaint and thus the merits of the final two arguments do not need.

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A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot.

Fairbanks Capital Corp., 2007 WL 778545 (11th cir. march 16, 2007) Riley, a pro se plaintiff, filed suit against Fairbanks in federal district court, alleging violations of federal law under the Fair Debt Collection Practices Act ("FDCPA"), real estate settlement procedures Act ("RESPA"), and the Truth in Lending Act ("TILA"), and raising numerous state law claims including breach of contract, negligence, and others.

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