- Dennison v. Carolina Payday Loans, Inc. and Johnson v. Advance America
In related cases, the Fourth Circuit addressed the minimal diversity requirement under 28 U.S.C. § 1332(d)(2)(A) in two consumer class actions against the payday loan industry. Judge Agee, the court's newest member, concurred in part, dissented in part, and concurred in the judgment in both cases.
- Palisades Collections LLC v. Shorts et al.
This case presents an issue of first impression — whether a party joined as a defendant to a counterclaim (the "additional counter-defendant") may remove the case to federal court solely because the counterclaim satisfies the jurisdictional requirements of the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. 109-2, 119 Stat. 4 (codified in scattered sections of Title 28 of the United States Code). We hold that neither 28 U.S.C.A. § 1441(a) (West 2006) nor 28 U.S.C.A § 1453(b) (West 2006 & Supp. 2008) permits removal by such a party.
- Cozzarelli v. Inspired Pharms. Inc., et al.
This case involves claims that a pharmaceutical company and three of its directors violated federal securities laws. Plaintiffs’ primary allegation is that Inspire Pharmaceuticals, Inc. committed securities fraud by overstating the prospects for an experimental drug that the company was developing to treat dry eye disease. When we apply the careful scrutiny required by Congress in the Private Securities Litigation Reform Act of 1995 and by the Supreme Court in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007), we conclude that plaintiffs’ allegations are lacking. In particular, plaintiffs fail to raise the "strong inference" of wrongful intent that is necessary to support their securities fraud claims. We thus affirm the district court’s dismissal of the complaint.
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The Law Firm of Klayman & Toskes is also investigating Citigroup's management of its ASTA Fund (Palisades Collections). The ASTA Fund was managed in similar fashion to that of MAT Five. Many retirees have also been burned by the ASTA Fund, as it too is down about 90%.
If you are an investor of Citigroup's MAT or ASTA Funds and wish to explore your legal options, please contact Steven D. Toskes, Esquire or Jahan K. Manasseh, Esquire of Klayman & Toskes, P.A., at 888-997-9956. You may also visit us on the web at http://www.nasd-law.com .
Insiders seem to be dumping ASTA stock (symbol ASFI). Why? Multiple Class Action lawsuits perhaps? Below is part of Asta Funding (Palisades Collecctions) agreement with subserver Unifund CCR Partners (a Registered Trademark in Ohio with no Legal Capacity to sue anybody in any court). Could it be that the Zises Brothers Unifund is self destructing and will take down Asta Funding with it? Does the management of Asta Funding know that working with the Zises family, old man Bernard (Ben), sons Jay, Selig and Seymour is a great way to get burned really bad.
Look at the history of the Zises management of Integrated Resources (owing investors $995 million) or Seymour’s management of Family Management Corp. and his huge investor losses on the Madoff gamble.
Asta Funding is so desperate to disguise its relationship with the Zises Brothers Unifund that they have resorted to releasing a grossly misleading press release:
“EXCLUSIVE: $3 Billion Portfolio to Hit Market Next Week
A $3 billion face-value credit card debt portfolio is set to go on the market next week, according to a debt buyer who is not the seller and who asked to remain anonymous (Gary Stern President, Asta Funding (201) 567-5648 x225, garystern@astafunding.com).
The portfolio, which is being sold by a debt buyer, consists of more than 1 million accounts, mostly credit cards, and will be divided into segments of $100 million or greater, the source says.
Sales will be brokered by Cincinnati-based debt buyer Unifund, which is the second largest buyer in the U.S. by revenue, according to CCR’s annual industry rankings.
There are rumors the seller is New Jersey-based buyer Asta Funding, Inc., which in February purchased a $6.9 billion portfolio in one of the biggest deals in the industry. The rumors seem supported by the Unifund Web site, which contains a confidentiality agreement between Asta Funding and prospective buyers on its “Indirect Paper Prospective Buyers” section.
But Asta CFO Mitch Cohen tells CCR it is not their portfolio, though he declined to provide more comment.”
The truth, however, is in this ASTA Funding agreement (an agreement that rewards Unifund with a premium for collecting “…outside the related statute of limitations”):
SCHEDULE 1
SERVICING FEE SCHEDULE
Servicing Fees relating to Receivables (a) with respect to which the Servicer has not engaged a Subservicer or (b) under the W&A Subservicing Agreement:
CLASS OF RECEIVABLE PERCENTAGE
Receivables directly being serviced by the Servicer or a Subservicer; provided, for the purposes of clarification, that any Receivable subserviced by a vendor under a Subservicing Agreement, will not be deemed to be directly serviced by the Servicer or a Subservicer 24 %
All Bankrupt Receivables 50 %
All Receivables outside of the related statute of limitations 50 %
All other Receivables 30 %
Notwithstanding the foregoing, the Servicer will undertake reasonable best efforts to reduce the fee paid to the Subservicer under the Wolpoff & Abramson, L.L.P. Subservicing Agreement by 4%, to the extent W&A utilizes information obtained by the Servicer in connection with the Unifund Servicing Agreement, and, in connection therewith, reduce the corresponding Servicing Fee by such amount.
Servicing Fees relating to Receivables under the Unifund Subservicing Agreement:
• 35% of gross collections (as defined in the master servicing agreement, dated as of March 28, 2008, between the Servicer and Unifund CCR Partners)
• plus $275,000 per month through May 2009, inclusive
• plus 3% of gross cash receipts (as defined in the management agreement), dated as of March 28, 2008, between the Servicer and Unifund CCR Partners) for the first $500,000,000 of gross cash receipts on all Receivables under this Servicing Agreement
• plus 7% of gross cash receipts (as defined in the management agreement), dated as of March 28, 2008, between the Servicer and Unifund CCR Partners) thereafter on all Receivables under this Servicing Agreement
Servicing Fees relating to Receivables under the Allied Subservicing Agreement, the FMS Subservicing Agreement, the FMS Inc. Subservicing Agreement, the Penncro Subservicing Agreement, the Active Subservicing Agreement, the Constar Subservicing Agreement, the AC Subservicing Agreement and the Plaza Subservicing Agreement:
• 50% of gross cash receipts
Servicing Fees relating to Receivables under the TRAKAmerica Subservicing Agreement:
• For Receivables identified as “recalls”: 32% of gross cash receipts or
• For Receivables identified as “Telecom accounts”: 30% of gross cash receipts for a six-month trial period or
• For all other Receivables, 30% of gross cash receipts plus
• For all Receivables (a) for which a judgment has been rendered within the preceding three years or (b) for which suit had been filed in the preceding twelve months that is in post judgment enforcement, in each case to the extent such Receivable has been closed or recalled from the Subservicer for reasons unrelated to the Subservicer’s breach of or failure to perform under the Subservicing Agreement before payments or promises for payments have been made, a 5% non-contingent fee payable upon such closing or recall
Gross cash receipts for each Receivable means, for each Subservicing Agreement other than the W&A Subservicing Agreement and the Unifund Servicing Agreement, gross collections on such Receivable net, in the case of the TRAKAmerica Subservicing Agreement, court costs.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.1 Servicer to Act as Servicer of Receivables. The Servicer shall service, manage and administer the Receivables on behalf of the Borrower and the Collateral Agent (for the benefit of the Secured Parties) and shall have full power and authority, acting alone and/or through Subservicers as provided in Section 4.01 , to do any and all things that it may deem reasonably necessary or desirable in connection with such servicing and administration and that do not violate any of the material terms of this Servicing Agreement or the Accepted Servicing Practices. Consistent with the terms of this Servicing Agreement and the Accepted Servicing Practices, the Servicer may waive, modify or vary any term of any Receivable or consent to the postponement of strict compliance with any such term or in any manner, grant indulgence to any Obligor under a Receivable if, in the Servicer’s reasonable determination, such waiver, modification, postponement or indulgence is not adverse to the interests of the Borrower, the Collateral Agent or any of the Secured Parties. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Borrower is hereby authorized and empowered by the Borrower when the Servicer believes it appropriate in its best judgment to execute and deliver, on behalf of the Borrower, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Receivables.
The Servicer shall service, manage and administer the Receivables in accordance with applicable law, including the Fair Debt Collection Practices Act of 1968, as amended, and comparable state statutes, and by employing such procedures (including collection procedures) and degree of care, in each case as are customarily employed by the Servicer in servicing, managing and administering contracts owned or serviced by the Servicer comparable to the Receivables. The Servicer shall take all actions that are necessary or desirable to maintain continuous perfection of security interests granted by the Obligors in any collateral securing the Receivables, including, but not limited to, recording, registering, giving notice, obtaining consents, filing, re-recording, re-registering and refiling security agreements, financing
statements, continuation statements, notices, recordings or communications with court or other instruments as are necessary to maintain the security interest granted by the Obligors under the respective Receivables or as are required to perfect any Transfer of the Receivable Assets. The Servicer shall comply at all times in all material respects with the Accepted Servicing Practices and shall not take any action to impair the Collateral Agent’s security interest in any Receivable or related collateral, if any, except to the extent allowed under this Servicing Agreement, consistent with Accepted Servicing Practices or required by law.
The Servicer shall, at its expense, make, procure, execute and deliver such financing statement or statements, or amendments thereof or supplements thereto, or other instruments, certificates and supplemental writings, and do and deliver all acts, things, writings and assurances as necessary in order to comply with the UCC, or any other applicable law, to preserve and protect the security interest granted under the Transaction Documents and the priority of such security interest.
The Servicer may perform any of its duties pursuant to this Servicing Agreement, including those delegated to it pursuant to this Servicing Agreement, through Subservicers appointed by the Servicer, including Affiliates of the Servicer; provided , that, in each such delegation to a Subservicer: (i) such Subservicing Agreement shall be entered into in accordance with Section 4.01 ; and (ii) the Administrator, the Lender and the Collateral Agent shall have the right to look solely to the Servicer for performance. Notwithstanding any such delegation of a duty, the Servicer shall remain obligated and liable for the performance of such duty as if the Servicer were performing such duty. No later than June 30, 2008, each Subservicer shall agree in writing, to the extent not provided for in a Subservicing Agreement, to the following terms, in form reasonably acceptable to the Administrator: (i) following the termination of the servicing by the Servicer hereunder, the Collateral Agent may, at its option, (y) become, or appoint, an assignee under such Subservicing Agreement or (z) after no more than thirty (30) days prior written notice to the Subservicer, terminate the Subservicer under the related Subservicing Agreement (other than under the W&A Subservicing Agreement, except in connection with a Subservicer Termination Event (as defined therein), or under the Unifund Subservicing Agreement, except in connection with a Servicer Event of Default (as defined therein)) with respect to the Receivables other than Exempted Receivables, (ii) the Subservicer shall deposit all Collections received by such Subservicer directly into the Collection Account or an account designated in writing by the Administrator to the Servicer and the Subservicer, and the Subservicer will not, without the prior written consent of the Administrator, follow the instructions of the Servicer with respect to the depositing of Collections, (iii) the Subservicer will, upon the request of the Collateral Agent, deliver to the Collateral Agent information with respect to the Receivables as reasonably requested and (iv) the Subservicer shall agree to provide the Administrator with the same audit and inspection rights provided to the Servicer and its lenders under the related Subservicing Agreement.
The Servicer may take such actions as are necessary to discharge its duties as the Servicer in accordance with this Servicing Agreement, including the power to execute and deliver on behalf of the Borrower such instruments and documents as may be customary, necessary or desirable in connection with the performance of the Servicer’s duties under this Servicing Agreement (including consents, waivers and discharges relating to the Receivables and related collateral, if any, and such instruments or documents as may be necessary to effect liquidation of
ARTICLE IV
SUBSERVICERS
Section 4.1 Subservicing Agreements Between Servicer and the Subservicers. The Servicer, with the prior written consent of the Administrator (if such Subservicing Agreement is with a Subservicer other than each Subservicer listed on Schedule 2 hereto, as amended or supplemented from time to time with the prior written consent of the Administrator), may enter into Subservicing Agreements with one or more Subservicers for the servicing and administration of some or all of the Receivables. References in this Servicing Agreement to actions taken or to be taken by the Servicer in servicing the Receivables include actions taken or to be taken by a Subservicer on behalf of the Servicer. Each Subservicing Agreement shall provide for each Subservicer to service the related Receivables in accordance with Accepted Servicing Practices; provided, that no Subservicing Agreement shall provide for the servicing of Receivables on terms and conditions that would result in the failure of the Servicer to comply with the terms and conditions of this Servicing Agreement (including the modifications set forth on Schedule 2 hereto, as may be amended from time to time) in any material respect. Each Subservicer may hire third party vendors, provided that such Subservicers remain at all times in compliance with the related Subservicing Agreement. The Servicer hereby acknowledges that it is holding the Receivable Files and any other items of the Collateral in its possession from time to time for the related Receivables as bailee of Borrower and the Collateral Agent (for the benefit of the Secured Parties) in accordance with Section 3.03 .
Section 4.2 Obligation of Servicer. Notwithstanding any Subservicing Agreement, any of the provisions of this Servicing Agreement relating to agreements or arrangements between the Servicer or a Subservicer or reference to actions taken through a Subservicer or otherwise, the Servicer shall remain obligated to the Borrower and the Collateral Agent for the servicing, managing and administering of the Receivables in accordance with the provisions of Section 3.01 without diminution of such obligation or liability by virtue of such Subservicing Agreements or arrangements or by virtue of indemnification from a Subservicer and to the same extent and under the same terms and conditions as if the Servicer alone were servicing, managing and administering the Receivables. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Servicing Agreement shall be deemed to limit or modify such indemnification.
Section 4.3 No Contractual Relationship Between a Subservicer and Borrower or Collateral Agent. Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Receivables involving a Subservicer in its capacity as such and not as an originator shall be deemed to be between a Subservicer and the Servicer alone and the Borrower and the Collateral Agent shall not be deemed parties thereto and shall have no claims, rights, obligations, duties or liabilities with respect to a Subservicer except as set forth in Section 4.04 .
Section 4.4 Assumption or Termination of Subservicing Agreement by Collateral Agent. In the event the Servicer shall for any reason no longer be the servicer of the Receivables (including by reason of a Servicer Termination Event), the successor Servicer shall, at the direction of the Administrator, in accordance with Section 3.01 : (i) assume all of the rights and obligations of the Servicer under one or more Subservicing Agreements that may have been entered into by giving notice of such assumption to the related Subservicer or Subservicers within ten (10) Business Days of the termination of the Servicer as servicer of the Receivables or (ii) except with respect to Exempted Receivables, terminate all of the rights and obligations of any Subservicer under the related Subservicing Agreement. Upon the giving of such notice, the successor Servicer shall be deemed to have assumed all of the Servicer’s interest therein and to have replaced the Servicer as a party to the Subservicing Agreement to the same extent as if the Subservicing Agreement had been assigned to the assuming party except that the Servicer and the Subservicer, if any, shall not thereby be relieved of any accrued liability or obligations under the Subservicing Agreement and the Subservicer, if any, shall not be relieved of any liability or obligation to the Servicer that survives the assignment or termination of the Subservicing Agreement.
The predecessor Servicer shall, upon request of the successor Servicer (at the expense of the predecessor Servicer), deliver to the assuming party all documents and records relating to the Subservicing Agreement and the Receivables then being serviced and an accounting of amounts collected and held by it and otherwise use its best efforts to effect the orderly and efficient transfer of the Subservicing Agreement to the assuming party.
ARTICLE V
SERVICER TERMINATION EVENT
Section 5.1 Servicer Termination Event. “Servicer Termination Event,” wherever used herein, means any one of the following events:
(i) the Servicer shall fail, or fail to cause any Subservicer, to deposit all amounts required to be deposited in the Collection Account by the Servicer or Subservicer when required to be deposited under this Servicing Agreement and such failure shall continue unremedied for 1 Business Day after the Servicer has knowledge or notice thereof, other than with respect to administrative errors not to exceed $10,000 of Collections in any Collection Period for which such grace period shall be 5 Business Days after the Servicer has knowledge or notice thereof; or
(ii) the Servicer shall fail to observe or perform in any material respect any other of the covenants or agreements on the part of the Servicer contained in this Servicing
Agreement or any other Transaction Document to which it is a party and such failure shall continue unremedied for a period of twenty (20) days after the Servicer has knowledge or notice thereof;
(iii) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or appointing a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer;
(iv) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of, or relating to, the Servicer or of, or relating to, all or substantially all of the property of the Servicer;
(v) the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of, or commence a voluntary case under, any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vi) the Servicer shall have breached any of the representations and warranties set forth in Section 2.01 in any material respect and the Servicer shall have failed to cure such breach within ten (10) days of its receipt of a notice of such breach;
(vii) a Change in Control shall have occurred with respect to the Servicer (if Palisades Collection is the Servicer);
(viii) (a) the amendment of any Subservicing Agreement without the prior written consent of the Administrator or (b) the Servicer or Borrower enters into a new Subservicing Agreement with respect to the Receivables without the written consent of the Administrator;
(ix) an Event of Default (as defined in the Loan Agreement) has occurred under such facility which has not been waived prior to termination of the rights of the Servicer under this Servicing Agreement; or
(x) a Termination Event shall have occurred under the Receivables Financing Agreement.
If a Servicer Termination Event shall occur (which has not been waived), then, and in each and every such case, the Administrator may, by notice in writing to the Servicer (with a copy to the Borrower and the Collateral Agent), terminate all of the rights and obligations of the Servicer under this Servicing Agreement and in and to the Servicer’s interest in and to the Receivables and the proceeds thereof (except with respect to a Subservicer’s right to collect Exempted Receivables pursuant to the applicable Subservicing Agreement or as otherwise set forth on Schedule 2 hereto), subject to compensation, rights of reimbursement, indemnity and limitation on liability to which the Servicer is then entitled, and the Servicer shall immediately provide each Subservicer with a copy of such notice. Such notice shall specify, to the extent possible, the timing and method of transition to a successor Servicer. On and after the receipt by the Servicer of such written notice and upon the effective date of the transfer to the new Servicer specified in such notice, all authority and power of the Servicer under this Servicing Agreement, whether with respect to the Receivables or otherwise, shall pass to and be vested in the successor Servicer appointed pursuant to Section 5.02 ; provided , however , that the successor Servicer shall not (i) be liable with respect to prior actions or omissions of the predecessor Servicer or (ii) be required to make advances pursuant to the terms of this Servicing Agreement; and, without limitation, such Person is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Receivables and related documents, or otherwise. The Servicer agrees to cooperate with such responsibilities and rights hereunder, including, without limitation, the transfer to such party for administration by it of all cash amounts that shall at the time be credited to the Collection Account or thereafter be received with respect to the Receivables. If the Servicer is terminated pursuant to this Section 5.01 , then the Servicer shall bear all of the costs and expenses of transferring the duties and obligations of the Servicer to a successor Servicer; provided , however , that if the Servicer fails to bear all such costs and expenses the successor Servicer shall be entitled to reimbursement from amounts realized on the related collateral, if any, by retention of such amounts prior to the distribution of any Collections from the Collection Account in accordance with Section 4.2 of the Receivables Financing Agreement.
Section 5.2 Appointment of Successor. On and after the time the Servicer receives a notice of termination pursuant to Section 5.01 , the Administrator may appoint (and provide written notice of such appointment to the Collateral Agent) a successor Servicer, and such appointee shall be the successor in all respects to the Servicer in its capacity as the Servicer under this Servicing Agreement and the Receivables Financing Agreement; provided , however , that the successor Servicer shall not (i) be liable with respect to prior actions or omissions of the predecessor Servicer or (ii) be required to make advances pursuant to the terms of this Servicing Agreement. As compensation therefor, the successor Servicer shall be entitled to all funds relating to the Receivables that the Servicer would have been entitled to receive if the Servicer had continued to act hereunder; provided , however , the Administrator may approve such additional amounts based upon servicing bids obtained thereby.
Section 5.3 Term of Servicer. Upon 30 days prior written notice, the Servicer may be removed by the Borrower (with the prior written consent of the Administrator), such removal to become effective upon the approval of a successor Servicer by the Administrator and the acceptance of such appointment by such Servicer; provided that such successor Servicer shall assume the obligations provided for in Section 4.04 .
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