The UCL Practitioner

New UCL "injury in fact" opinion: Ivanoff v. Bank of America, N.A.

In another wrongful foreclosure case, the Court of Appeal (Second Appellate District, Division Seven) held that the plaintiff had adequately alleged Prop. 64 "injury in fact" for standing purposes:

Whether or not Ivanoff’s allegation that she “stands to lose her home” adequately pleaded injury in fact under the UCL, Ivanoff also alleged, as a result of the Bank’s unlawful business practices, she paid money to the Bank and received billings for increased monthly loan payments in excess of what she should have owed (or was told she would owe).  No more is required to allege injury in fact.

Ivanoff v. Bank of America, N.A., ___ Cal.App.5th ___ (Mar. 13, 2017), slip op. at 13-16.  However, the UCL claim was time-barred.  It accrued no later than May 2011, more than four years before suit was filed in August 2015.  Id. at 17-19. 

Ninth Circuit reinstates UCL claim in wrongful foreclosure action: Oskoui v. J.P. Morgan Chase Bank, N.A.

In Oskoui v. J.P. Morgan Chase Bank, N.A., ___ F.3d ___ (9th Cir. Mar. 13, 2017), the Ninth Circuit held that the district court should not have summarily adjudicated the plaintiff's UCL claim in the defendant's favor. 

According to the opinion, the evidence showed that the defendant lender strung the plaintiff borrower along for more than two years, leading her to believe that she could obtain a loan modification if she made additional payments, when in fact she was ineligible for the modification program due to the size of her loan. The lender's conduct was not only "Kafkaesque," but also "fraudulent" and "unfair" within the meaning of the UCL, whether "intentional or the result of corporate ineptitude."  Slip op. at 10-13. 

Ninth Circuit addresses appealability of class certification orders: Bates v. Bankers Life and Casualty Co.

In Bates v. Bankers Life and Casualty Co., ___ F.3d ___ (9th Cir. Feb. 24, 2017), the Ninth Circuit dismissed, for lack of jurisdiction, an appeal from an order striking class allegations from the complaint: 

There are only two procedural avenues for appealing an order striking class allegations made under Federal Rule of Civil Procedure 23: (1) asking the district court to certify an order for interlocutory review pursuant to 28 U.S.C. § 1292(b); or (2) filing a petition for permission to appeal pursuant to Federal Rule of Civil Procedure 23(f). See Plata v. Davis, 329 F.3d 1101, 1107–08 (9th Cir. 2003); Kamm v. Cal. City Dev. Co., 509 F.2d 205, 206 (9th Cir. 1975). ....  Plaintiffs did not use either of these procedural avenues, and we therefore lack jurisdiction to hear their challenge to the order striking their class allegations.

Slip op. at 6-7.   

If pending H.R. 985 passes, this would all change.  Among other attacks on the class action process, the bill would make all orders either denying or granting class certification immediately appealable as of right.  That would automatically add at least a two-year delay in the middle of almost every class action.  (Something similar was proposed in California some time ago, but never made it out of committee.)  Please contact your representative and tell him or her to vote no on H.R. 985.  For those on the defense side, consider the fact that curtailing class actions, which is the goal of this bill, would be bad for your law practice.  The fewer class actions, the fewer cases for clients to hire you to defend.