Delivered in digestible, insightful bites, McGlinchey’s Litigation Byte is a monthly roundup of financial services decisions and cases nationwide that impact your business.
Second Department Holds Judicial Estoppel Bars Application of FAPA
On July 16, 2025, the Appellate Division, Second Department declined to apply the Foreclosure Abuse Prevention Act (FAPA) to a mortgage foreclosure commenced prior to FAPA’s enactment, pursuant to the doctrine of judicial estoppel because Borrower’s bankruptcy plan proposed to release the property to mortgagee, and thereafter, the bankruptcy order confirmed that the property was to be released to, and liquidated by, mortgagee.
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Southern District of New York Finds No Private Right of Action for Improper Reporting Under the FCRA
The Southern District of New York dismissed an action under the Fair Credit Reporting Act (FCRA), finding that there was no private right of action under section 1681s-2(a) for purportedly inaccurate reporting by a furnisher.
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Fifth Circuit Clarifies Arbitration Waiver Requires Same Claim
In Barnett v. American Express National Bank, 24-CA-60391 (5th Cir. 7/29/2025), the U.S. Fifth Circuit reaffirmed that a waiver of the right to arbitrate by “substantially invoking the judicial process” requires a showing that the party litigates a “specific claim” the party subsequently seeks to arbitrate. That claims have the same operative facts is insufficient.
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McLaughlin on Down: District of New Jersey Grants Class Certification on TCPA Fax Claims
Following the Supreme Court’s decision in McLaughlin Chiropractic Assoc., Inc. v. McKesson Corp., district courts have begun to respond by declining to follow the Federal Communications Commission (FCC)’s interpretation of the Telephone Consumer Protection Act (TCPA).
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Court Finds That Amendment To BIPA Limiting Damages Does Not Apply Retroactively
A district court in Illinois has ruled that an amendment to the Illinois Biometric Information Privacy Act (BIPA) regarding a limitation on damages does not apply retroactively.
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