One of the popular buzzwords these days is disruption. For example, Zillow came along and, through the aggressive marketing of leads, disrupted the ways in which many mortgages were originated. According to some reports, the Consumer Financial Protection Bureau is now disrupting Zillow’s tactics. Lead purchasers can protect themselves in several ways.
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I can’t recall any decision in which a judge openly compared his job to that of a tarot card reader, but a federal jurist in Florida recently did exactly that—in the context of a class action over lender-placed insurance (LPI). The prediction at hand was whether the regional appellate tribunal, the Eleventh Circuit Court of Appeals, would accept or reject the filed-rate doctrine as a defense to LPI lawsuits.
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For now, individual arbitration is still a viable option for avoiding at least some class actions. But what do you do when the transaction for the would-be class representative is so old that you no longer have a copy of the arbitration agreement? A recent decision from a federal appellate court gives businesses guidance about proving the existence of now-discarded arbitration contracts.
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The most critical part of any class-action defense is often the narrative. That is because a judge who believes that consumers have been cheated will often permit a class action to go forward, even if the case is otherwise questionable. Nowhere is that tendency more evident than in the wave of lender-placed insurance (“LPI”) lawsuits currently sweeping the country.
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