New legislation and accompanying regulations have thrust financial services institutions into a state of flux. With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the establishment of the Consumer Financial Protection Bureau, banks and mortgage companies need legal advisors who understand the complex web of existing rules and proposed new ones.
Attorneys at BSCR have extensive knowledge of the regulatory alphabet soup and keep themselves updated about state and federal rules, and the agencies that enforce them. We represent commercial lenders, consumer lenders, credit unions, finance companies and credit card issuers in a wide range of matters. We provide advice to clients on compliance issues and are experienced litigators, having represented clients at the local, regional and national level. We provide counsel in many forums, be it arbitration, mediation, administrative hearings or at trial. Our attorneys defend financial institutions against single claims, mass claims and class actions involving both servicing disputes and origination disputes.
Banking, Mortgage and Consumer Loans
Our attorneys provide compliance advice and handle litigation for commercial and consumer lenders, finance companies, creditor lenders, mortgage lenders, mortgage originators, credit unions and credit card issuers. We have handled a broad range of matters, including serving as local, regional and national counsel in matters involving unauthorized transfers, actions to recover from principals and lender misconduct. We also represent financial institutions and investors in state and federal actions brought by borrowers.
We handle litigation involving the following representative matters:
- Errors and omissions committed by officers and directors including claims of theft and fraud
- Negligent and fraudulent misrepresentation
- Predatory Lending, TILA violations
- Regulation Z
- Truth-in-Savings Act
- Gramm-Leech-Bliley Act
- Electronic Funds and Transfer Act
- E-sign and Uniform Electronic Transactions Act
- UDAP laws
- Missouri Merchandising Practices Act violations
- Conversion and breaches of the Uniform Commercial Code
- Security interest priority actions involving repossession of secured collateral
- SEC violations
- Artisans’ liens, breach of contract actions
- Check honoring issues
For more information our Financial Services Litigation practice contact James Scott Kreamer or Tom Rice in Kansas City at 816.471.2121. In St. Louis, contact Nate Leming or Martha Charepoo or at 314.345.5000.
| For those wondering if Director Cordray’s retirement would truly bring about as much change as anticipated, the CFPB’s first actions in 2018, under the leadership of acting director Mick Mulvaney, have demonstrated a stark change in philosophy from the days of Cordray.
| Its appeal is undeniable. Users can transfer funds internationally, anonymously, and efficiently. Its value has continued to grow faster than anyone ever expected. But the pressure to regulate Bitcoin is coming to a head, as regulators and financial institutions grow increasingly concerned of the potential for criminal activity and financial instability. 2018 may ring in the first substantial efforts in the U.S. for oversight of this controversial cryptocurrency.
| Following the issuance of the CFPB’s Rule prohibiting arbitration clauses for waiver of consumer class action rights, the U.S. Senate wasted no time in passing legislation to overturn the CFPB rule. The law passed by the Senate restores law regarding arbitration provisions to the status quo.
| Predictably, upon Equifax’ announcement earlier this month concerning an unprecedented data breach and apparent failure to timely to disclose that breach, Equifax is already facing class action litigation and the impending threat of actions to follow from state attorneys general
| After conducting a study, which spanned several years, on the prevalence of mandatory arbitration clauses in consumer financial products, the CFPB has issues a new rule that will prohibit financial institutions from including mandatory arbitration clauses that prohibit a consumer from joining in class action litigation against the bank.
| Martin Sigillito, the former St. Louis Attorney who was convicted in 2011 for his involvement in a $52 million Ponzi scheme, is 7 years into a 47-year federal sentence, but the Eight Circuit for a second time just decided that many of his investors cannot recoup their losses from a bank where Sigillito kept the accounts he used to defraud them.
| A unanimous Supreme Court upheld the Fourth Circuit's holding in Henson v. Santander Consumer USA Inc., in which the Circuit Court held that, although Santander was the purchaser of a debt that was in default, it was not a "debt collector" under the FDCPA, and thus, was not subject to its stringent requirements for collection activities.
| The Financial Choice Act was introduced in 2016, and its revamped successor, referred to as “CHOICE Act 2.0,” was reported to the House of Representatives for consideration in early May. Today, the House passed the bill, bringing the United States one step closer to substantial financial regulation reform.
| The United States Supreme Court ruled on May 22, 2017, that the Hague Convention, on the service of judicial documents abroad, permits service by mail if the receiving country has not objected to service by mail and service by mail is authorized under otherwise-applicable law.
| A federal judge in North Carolina agreed with Bayer that federal law preempts all of plaintiff’s claims against Bayer in a medical device case. The judge then declined to exercise supplemental jurisdiction over the medical malpractice claims against the healthcare providers and dismissed those claims as well.
| The Missouri Court of Appeals for the Western District promptly affirmed the trial court’s holding that a local bank’s overdraft fee was not “interest,” and, therefore, was not subject to the state’s usury cap.
| Standing in a foreclosure case requires possession of an enforceable note at the time the foreclosure is filed. A mortgage and note may be later reunited and be enforceable.
| Often overlooked by legislators are the detrimental consequences of broad sweeping banking regulations on smaller community banks. At a recent convention, ICBA President Camden R. Fine called for continued efforts by community banks to fight for practical regulation reform.
| Earlier this week, Governor Eric Greitens signed Missouri HB 153 into law. HB 153, which supplants Missouri's existing expert witness standard with that set forth in Federal Rules of Evidence 702, 703, 704 and 705, effectively submits expert testimony in most civil and criminal case to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
| Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.
| The CFPB recently filed its complaint against Navient, the nation’s largest servicer of federal and private student loans for alleged failures in servicing those loans. Filed in the United States District Court for the Middle District of Pennsylvania, the Complaint contains allegations that Navient violated the Consumer Financial Protection Act, the Fair Credit Reporting Act, and the FDPCA and seeks millions in restitution.
| In a ruling favorable to home loan mortgage servicers, the Florida Supreme Court held that the trial court’s dismissal of a previous foreclosure action caused the loan to decelerate, thus recommencing the 5-year statute of limitations period for acceleration of the loan.
| While the very concept of an electronic mortgage is not new, the adoption of e-mortgages as the new "normal" remains a hot topic in the mortgage servicing realm. Despite the technology behind electronic document execution, delays in e-notarization laws prevent e-mortgages from fully replacing traditional home loan transactions.
| On October 25, 2016, FinCEN issued an Advisory outlining recommendations and requirements for financial institutions to report suspicious activity in compliance with the Bank Secrecy Act, clarifying these institutions' obligation to report cyber-events, even where no financial transaction was completed.
| In a long-awaited opinion, the D.C. Circuit Court held that the structure of the CFPB, as it exists currently, is unconstitutional. The Court also rejected the Director’s argument that the applicable statute of limitations does not apply to a CFPB administrative action.
| The results of the November 8, 2016 election have unmistakably cast doubt on the future of the CFPB, particularly as it exists today. With Donald Trump as President-elect, along with a Republican-held House and Senate, it is likely that some of the preceding years’ regulations and consumer protections will be undone.
| A Missouri plaintiff did not irrevocably waive the protections of the work product doctrine simply by designating an expert witness and then withdrawing the designation without disclosing the expert’s analysis or conclusions.
| In its first 4-4 decision since the death of Justice Antonin Scalia, the United States Supreme Court issued a ruling that resulted in affirmation of the 8th Circuit Court of Appeals’ opinion in favor of a Missouri bank in a dispute concerning the Equal Credit Opportunity Act.
| The Kansas Court of Appeals recently held that, even where a debt collector delayed its motion to compel arbitration until 2 years after the litigation was commenced, the trial court did not have the authority to decide that the delay was, in effect, a waiver of arbitration.
| In its current state, the MMPA has allowed consumers to collect substantial verdicts in cases that have strayed from the original intent of lawmakers. SB793 hopes to restore a balance that requires not only that businesses act fairly, but also that consumers act reasonably.
| While a Kansas court may grant relief from a final judgment based on excusable neglect, it is an abuse of discretion to grant that relief when the party seeking that relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim.
| An agent may recover attorney's fees when enforcing a principal's contract if: the agent is granted the express authority to enforce the contract in the contract itself, the contract contains an attorney's fees provision, and the agent is the prevailing party.
| In two cases involving consumer loans, the Court reaches opposite conclusions as to whether conduct occurring after the initial loan was issued fell with the coverage of the MMPA.
| Experts are not required to rule out all possible causes when performing the differential etiology analysis if the experts have properly ruled in the alleged cause.
| A Kansas plaintiff may amend their pleadings to assert punitive damages up until the day of the pretrial conference.
| Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 298 Kan. 299, 312 P3d 345, 355 (Kan. 2013).
| The plaintiff has the burden of proving standing, which is a jurisdictional issue that can be raised at any time.
| In Kansas, the parties bind themselves to an enforceable settlement, even though the parties contemplate subsequent execution of a formal instrument. However, when the parties specifically condition a contract on it being reduced to writing and signed, there is no enforceable contract until such act is accomplished.