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Rutgers Law School has published the results to date of the ALI Restatement Project of the Law of Liability Insurance in the Rutgers University Law Review. The Review addresses all of the topics covered (no pun intended) by the Restatement Project so far, including a new four-part measure of the one-part insurance bad faith standard. More than that, Rutgers invites comments to [email protected] which they will review for posting online on the Rutgers University Law Review website:
Restatement of the Law of Liability Insurance
Rutgers University Law Review
On February 27, 2015, Rutgers Law School hosted a conference discussing the American Law Institute’s Restatement of the Law of Liability Insurance. Most of the participants at this conference decided to author articles further discussing this exciting topic. Accordingly, this issue contains articles from the following authors:
Jay M. Feinman
Timothy P. Law
Lisa A. Szymanski
Laura A. Foggan
Karen L. Toto
Charles Silver
William T. Barker
George M. Cohen
Leo P. Martinez
Kim V. Marrkand
Jeffrey E. Thomas
Bruce L. Hay
Kenneth S. Abraham
Mark A. Geistfeld
Erik S. Knutsen
Victor E. Schwartz
Christopher E. Appel
We invite you to visit our website, www.rutgersuniversitylawreview.com, to read these articles in full. As Professor Jay Feinman explains in his Introduction, the articles in this Issue discuss four general topics: the defense of claims, the duty to make reasonable settlement decisions, insurance contract interpretation, and policyholders, brokers, and more.
In addition, the Rutgers University Law Review would like to invite you to submit a short response to one or more of the print articles to be published as part of the Rutgers University Law Review Commentaries, our online publication. Reactions, critiques, and new insights on our print articles are welcomed and encouraged. Author responses should be no more than 2000 words. If you are interested in submitting a response to one of the print pieces from Volume 68, Issue 1, please email [email protected] by January 4, 2016.
There are ten jurisdictions from which cases have been reported and found in which the Courts have declared a legal duty for liability insurance companies to initiate settlement negotiations even in the absence of a settlement demand from the claimant. Oklahoma is one such jurisdiction.
However, in a recent case it was held that an excess carrier did not have a duty to initiate settlement negotiations until the underlying, primary carrier exhausted its policy limits, as the excess insurance policy required before any obligation of the excess carrier came into being.
Or so the Tenth Circuit Court of Appeals has predicted. SRM, Inc. v. Great Am. Ins. Co., 798 F.3d 1322, 1325-26, 1329 (10th Cir. 2015) (predicting Oklahoma law in a case of apparent first impression concerning an excess liability carrier).
The article's main point is that debt buyers clearly seem to follow an established business model (disputed by debt buyers), in which they buy the debts of people, meaning that they can then file collection suits to recover the alleged debts, and more. Debt buyers file robo-signed affidavits in large numbers with exhibits as "evidence" of the debt which in many cases is not owed by the people being sued.
Although they should not ignore these complaints, people often do ignore them, whether because the collection suits are filed in small claims courts (which they often are) and the consequences of not responding to them correspondingly seem small, or because the people who allegedly defaulted on a debt never asked for the loan, or the people do not recognize the name of the plaintiff suing them because they have never heard of it.
For whatever reason, people do not respond when they are sued in such matters -- something which the debt buyers allegedly count on as a part of their business model. When the people do respond with a lawyer, either the debt buyers dismiss their lawsuits right away (frequently) or the people represented by lawyers win on the merits (also fairly frequent when people are represented by counsel in these lawsuits, according to the ABA Journal article). According to statistics presented in the article, fewer than 2% of the people sued in these cases are represented by a lawyer, however.
When as happens in the vast majority of these cases the people do not respond, the debt-buying-plaintiffs request that the clerks enter default judgments, all without a judge ever seeing the complaint or the "affidavit" or its exhibits. Statistics in the article reflect that over 99% of judgments in such cases were entered without a trial.
"A clerk simply processed the creditor's claim based on a document stating little more than this person owes us this much, and the fact that she was served with the suit, then entering judgment after it went unchallenged." Terry Carter, ABA Journal, supra.
At this stage of the business process, the people who are sued really are debtors now: Judgment debtors. The next step in the process is that the judgment creditors -- the debt buyers -- execute upon the judgments and seize and sell the judgment debtors' assets to satisfy the judgments.
The article describes this business model as "unprecedented":
The debt-buying industry has understandably taken advantage of this and put an unprecedented burden on the nation's courts--state venues, usually small claims or others of nonrecord jurisdiction.
There is precedent for the burden placed on the nation's courts by a business model involving the calculated use of "robo-signed affidavits," however: The foreclosure crisis. In Florida, for example, the Courts were nearly overwhelmed with foreclosure suits. One way in which the Florida Supreme Court dealt with the explosion of foreclosure suits was to institute special Mediation Foreclosure procedures. The new mediation requirements in foreclosure cases have played a part in lowering the numbers of foreclosure filings, but foreclosure litigation is still a burden on the Florida Courts. Nationally, predatory lending practices of mortgage lenders and their servicers included lender force-placed insurance practices and foreclosure lawsuits based on robosigned affidavits.
By definition, such affidavits are signed robotically and are not made on personal knowledge. Robosigned affidavits accordingly contain the testimony of witnesses who do not have a clue about the truth or falsity of what they are swearing and affirming to be true. These and other similar business practices brought about a so-called National Mortgage Settlement. Neither the national settlement nor the settlements in individual cases have stopped the lenders' alleged predatory practices. See "SETTLEMENTS HAVE NOT STOPPED LENDER FORCE-PLACED INSURANCE PRACTICES OR LAWSUITS," posted on Insurance Claims and Issues Blog on Monday, December 14, 2015.
Obviously, that includes robosigning.
A solution in some States, such as in California, has been to enact legislation to address the debt-buyers' business model and litigation practices. Other States, such as New York, have enacted new Rules of Court to deal with the same issues. However, as is noted in the ABA Journal article, clerks of Courts are still so overwhelmed that no-one can confirm compliance with the new laws or with the new rules, as the case may be.
Until the clerks get their heads above water and their desks above paper filings, something can be done to further justice and slow the cause of injustice in the interim. Clerks can refuse to enter defaults; they can refer the cases to judges. Judges for their part can and must refuse to enter judgments which are not based on admissible evidence. Anything less and the clerks and the Courts will continue to complain about being overwhelmed, and as in the case of their cousins the mortgage lenders and mortgage servicers filing foreclosure lawsuits, the plaintiffs who file debt collection cases will demand that the judicial system now take steps to "streamline" dockets and reduce obstacles such as evidence, in order to accommodate the massive and overwhelming numbers of collection lawsuits which these debt-buying-plaintiffs file.
Or else they will overwhelm the system, they will say.
Ever wonder whether a liability carrier has a duty in a particular case to protect its insured by accepting an agreement offered by the claimant (1) to consent to judgment now, (2) not to execute on the insured's assets now or later, and (3) to try the bad faith case later? Well, if you have been wondering, perhaps you have not been paying attention.
The Eleventh Circuit answered this question pretty easily in a recent case. Here is the short and the long of it, first the short answer which comes as no surprise to anyone practicing in this area:
In sum, an insurer owes no duty under Florida law to enter into a so-called Cunningham [v. Standard Guaranty Insurance Co., 630 So. 2d 179 (Fla. 1994)] agreement and likewise owes no duty to its insured to enter into a consent judgment in excess of the limits of its policy.
Kropilak v. 21st Century Ins. Co., 806 F.3d 1062, 1070 (11th Cir. 2015) (case involved Florida substantive law).
And here is the long (and also hardly surprising) answer from the Eleventh Circuit in the same case:
Even if what Kropilak and Collins have proposed is different than a Cunningham agreement, Kropilak and Collins have failed to explain why an insurer is obligated to enter into the agreement proposed here when Florida law does not obligate insurers to enter into a Cunningham agreement. The agreement proposed by Kropilak and Collins, with its requirement for the entry of a consent judgment in excess of the policy limits, would arguably extend the obligation of an insurer beyond what would be required in a Cunningham agreement. In Cunningham, the insurer simply agreed to try the bad-faith action in advance of the underlying tort claim. 630 So. 2d at 180. While an insurer has a duty to act in good faith to offer the policy limits under appropriate circumstances to avoid exposing its insured to a judgment in excess of those policy limits, it has no duty on behalf of its insured to agree to a consent judgment in excess of policy limits and then subject itself to a suit for bad faith for the amount in excess of the policy limits.
Kropilak v. 21st Century Ins. Co., 806 F.3d 1062, 1069 (11th Cir. 2015).
So, no surprises here. At least we know that this appeal did not change the law, which is certainly welcome news for liability insurance carriers and practitioners who represent them in Florida and elsewhere.
The waiting field. Photograph and text Copyright Dennis J. Wall. All rights reserved.
Echoing the justifications for the origin of class actions, it has been said that the main purpose of class actions should be to deter wrongdoing. Moreover, with deterrence of wrongdoing being the prime reason for having class actions in the first place, class actions should be made available in ways which recognize that main purpose and so structure monetary recoveries and fee awards as secondary to the prime purpose of deterrence of wrongdoing:
Yet at least when it comes to securities class actions, this deterrence function should arguably be the chief measure of class actions' value -- not the number of zeroes on settlement agreements that reflect a recycling of money from one innocent group of shareholders to another, sometimes overlapping group of innocent shareholders.
Yet contemporary class actions, particularly securities class actions, seem to have the chief purpose of deterring people from seeking remedies. Along with money, this appears to be the chief motivator of many settlement agreements in class action cases including lender force-placed insurance cases. Deterring people from seeking remedies, for example, certainly seems to be the prime mover behind the settlement in a case filed as a class action seeking remedies because of the defendants', investment banks and others, alleged secrecy conduct surrounding the issuance and making of a specialized form of credit insurance without reserves, credit default swaps. The plaintiffs' and defendants' agreed final order asks the Court to approve their settlement agreement. The plaintiffs and defendants have provided that the defendants shall be immunized not only from further lawsuits by the plaintiffs but from lawsuits filed by other persons who are not before the Court:
The Released Parties may file the Agreement and/or this Final Judgment and Order of Dismissal in any action that may be brought against them in order to support a defense or counterclaim based on the principles of res judicata, collateral estoppel, full faith and credit, release, good faith settlement, judgment bar, or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim.
In re Credit Default Swaps Antitrust Litigation, Dkt. No. 445-2, ¶ 17, at p. 5 of "[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL AS TO BNP PARIBAS," which is Exhibit "B" to "Stipulation and Agreement of Settlement with BNP Paribas," Filed October 16, 2015 (S.D.N.Y. Case No. 1:13-md-02476 (DLC)). Download In re Credit Default Swaps Antitr Lit. Ex 2 to Declar Daniel Brockett.101615 Dkt No. 445-2 (SNDY Case No 13 MD 2476).INCLUDES A SETTLEMENT AGREEMENT. The plaintiffs and the defendants included the same provision in the same or virtually the same language in every one of the ten or eleven such proposed final orders which would approve their settlement in this case. The parties have captioned their proposed final orders approving their settlement as proposed final judgments of dismissal in this format.
Particular questions arise such as whether issue preclusion or claim preclusion or res judicata could apply to an order effectively approving a settlement without adjudication of any facts such as a final judgment entered after trial. If a settlement can preclude actions of aggrieved parties not actually before the Court, who could agree to that?
The bigger picture here, at the moment, is the chief purpose of class action settlements. Is it to deter wrongdoing, which was the prime reason behind the origin of class actions? Or is the contemporary main purpose of class action settlements shown by the evidence and not by the argument, namely, that defendants successfully buy class action settlement agreements to deter remedies?
I found the name, number, and Court of the case pretty quickly: In re Credit Default Swaps Antitrust Litigation, Case No. 1:13-md-02476 or 13 MD 2476 (DLC) [take your pick] (Southern District of New York). Yet, after hours of investigation and research I still could not find an electronic Court file. Making a long story short so to speak, I found it but it was not easy. The obstacles I faced in finding this case were a portent of things to come.
The Court in that case has not yet entered a final Order approving the class action settlement of litigation over the alleged secrecy of the defendant investment banks and others in making and selling credit default swaps. However, the Court in that case has entered a Preliminary Order.
The District Judge used the proposed order submitted by the lawyers (Docket No. 464-1 in that case) and crossed off the word "proposed" in the title:
PROPOSED ORDER PRELIMINARILY APPROVING SETTLEMENTS AND PROVIDING FOR NOTICE TO THE SETTLEMENT CLASS, now listed by the Clerk as Docket No. 465 in Case No. 13 MD 2476 (DLC) (S.D.N.Y., October 29, 2015).
To her credit, the District Judge entered several lines of handwritten edits and additions to the lawyers' proposed order. However, the District Court's certification of a "Settlement Class" was not among them. The Court certified a Settlement Class proposed by the lawyers pursuant to Rule 23 of the Federal Rules of Civil Procedure "solely for purposes of effectuating the Settlements". (Preliminary Order, Docket No. 465, ¶ 3, p. 3.)
The proposed Order of Court went on to enter an injunction against anyone who wanted to pursue "Released Claims" against the defendants. The injunction barred "any Settlement Class Member" from filing or maintaining "any action alleging any of the Released Claims against any of the Released Parties." (Preliminary Order, Docket No. 465, ¶ 22, pp. 9-10.)
Do you notice any problems with this concept?
Well, for one, determining who is a "Settlement Class Member" is something of a farce. Trying to advise anyone who is a "Settlement Class Member," and thus subject to this injunction, requires a determination of who is a settlement class member of course. That depends on who files the appropriate paperwork by the appropriate deadlines decreed by this Order. Depending on whether a person demands exclusion from the settlement class or files an objection, the deadline decreed for filing the appropriate paperwork is February 29, 2016. But since February 29, 2016 has not come no-one knows who "any Settlement Class Member" is yet.
Another problem concerns the identity of what the "Released Claims" against any of the "Released Parties" are, exactly. The Court apparently does not know.
The Preliminary Order ruling that no-one can "commence or prosecute" the "Released Claims" does not say what the "Released Claims" are.
Perhaps there is a definition of "Released Claims" in the Settlement Agreements on file in this Court file. There are some 700+ pages of settlement agreements on file in this Court file.
To know what are "Released Claims" which cannot be prosecuted or maintained until this Court gives its final approval to this settlement, we must wade through those settlement papers. Just as soon as I finish wading, I will let you know what if anything I can find. In the meantime, the Court in this case has set a so-called "Fairness" hearing in this Preliminary Order for Income Tax Day next year, or April 15, 2016. Maybe by then we will know something more than the little we know now.
Copyright Shutter_M; Image provided by Shutterstock.
*Apologies for reworking the motto of Frederick the Great or actually, some say, of French revolutionary figure Georges Jacques Danton: "L'audace, l'audace, toujours l'audace" or "Audacity, audacity, always audacity."
The big banks' goal at the expense of homeowners and lenders smaller than themselves: "unseat Fannie Mae and Freddie Mac, the mortgage finance giants, and capture their share of the profits in the country's $5.7 trillion home loan market." [Emphasis added.]
Rather than restructure Fannie and Freddie, the big banks have a plan to reassign Fannie's and Freddie's assets, such as the proprietary government-owned database of "mortgage underwriting systems the government-sponsored enterprises had built to bundle loans into securities to be sold to investors." The big banks' choice to receive Fannie's and Freddie's assets? Themselves.
Oh, and the big banks are pushing the idea in Washington that they are entitled to Fannie's and Freddie's profits too because they should take over Fannie's and Freddie's very profitable lines of business.
To whom you ask are the big banks pushing this idea in Washington? Why, the Obama administration. One General Counsel for a nonprofit and a low-income housing advocacy group does not get much listening time from officials within the Obama administration, many of whom came from Wall Street or are on their way back to Wall Street. (It apparently gets confusing there.) "It's been a long time since HUD was an effective advocate for homeowners, much less low- or moderate-income homeowners," he said.
And as shown in this report and elsewhere, apparently the insiders in question also include the Federal Housing Finance Administration or FHFA, Fannie's and Freddie's overseer. Fannie and Freddie fought with the FHFA for the right, and won, to refuse to use Federal taxpayer money to buy mortgage loans that have unauthorized lender force-placed insurance practices attached. If the Obama administration implements the big banks' plan, then there will be no Fannie or Freddie -- or anyone or anything else -- to stand in the way of spending Federal taxpayer money, once again, to buy mortgage loans from the big banks regardless of what additional costs may or may not be attached.
So, everything comes back around in the end: Increase profits forever and ever, world without end. Amen.
Recent decisions in insurance cases have permitted the introduction of an affirmative defense as a reason for dismissal of a complaint. The decisions have come principally if not exclusively in lender force-placed insurance ("LFPI") cases. The arguments in these cases spotlight many of the reasons that the filed rate doctrine does not belong in insurance cases of any kind.
A recent illustration was previously commented on November 12, 2015: Trevathan v. Select Portfolio Servicing, Inc., No. 15-61175-CIV-DIMITROULEAS/SNOW, 2015 WL 6913144 (S.D. Fla. November 6, 2015). A few more comments are in order here.
It will be recalled that as posted here on November 12, the holding in this recent LFPI case was that since the premium "rate" charged by the insurance company defendant in that case for lender force-placed insurance was previously "filed" and approved by the Florida Office of Insurance Regulation ("OIR," the equivalent of a Florida Insurance Commissioner), then the filed rate doctrine applied and barred all of the plaintiff's claims involving "inflated premiums," i.e., premiums charged as part of a kickback scheme.
That might be a valid holding on a motion for summary judgment after a fully developed record of fact. That is not this case. The November 6th holding was on motions to dismiss. The District Judge apparently did not like any of the plaintiff's claims; the Court dismissed all of them. The plaintiff's "inflated premium" claims were dismissed with prejudice. (After a review of the dismissed complaint on PACER, "Public Access to [Federal] Court Electronic Records," I have to admit that I am at a loss as to which of the alleged claims is an "inflated premium" claim since I did not find any claims that were alleged as such.)
The Court's decision to dismiss with prejudice under the filed rate doctrine was based on an Eleventh Circuit decision in a utilities regulation case. The Eleventh Circuit said in that case:
As it applies in the telecommunications industry, the filed rate doctrine dictates that the rates a carrier charges its customers, once filed with and approved by the FCC, become “the law” and exclusively govern the rights and liabilities of the carrier to the customer:
Not only is a carrier forbidden from charging rates other than as set out in its filed tariff, but customers are also charged with notice of the terms and rates set out in that filed tariff and may not bring an action against a carrier that would invalidate, alter or add to the terms of the filed tariff.
Therefore, causes of action in which the plaintiff attempts to challenge the terms of a filed tariff are barred by the filed rate doctrine.
Hill v. Bellsouth Telecommunications, Inc., 364 F.3d 1308, 1315 (11th Cir. 2004). [Emphasis added.] It is clear under the cited authorities that the filed rate doctrine can only bar claims when the plaintiff making those claims is also the regulated utility's customer. This is not the case with LFPI claims. Even if some providers of insurance policies to lenders for forced placement may sometimes call homeowners their "customers," that is clearly not plausible. Lenders are the customers of insurance companies offering policies for forced placement by lenders, not homeowners.
Immediately after the observation cited by the District Court in this recent LFPI case that the filed rate doctrine operates to prevent discrimination among customers, the Eleventh Circuit made clear that this reference was to the protection afforded by the filed rate doctrine to prevent "carriers from negotiating a lower rate with some customers and then charging others the rate filed with the FCC." Hill v. Bellsouth Telecommunications, Inc., 364 F.3d 1308, 1316 (11th Cir. 2004). [Emphasis added.] No case is known in which any insurance carrier providing insurance for forced placement by lenders ever attempted to negotiate a lower rate with a homeowner for the premium placed on the homeowner by force.
Further, the District Judge in this recent LFPI case relied on "documents" attached to ASIC's motion to dismiss. In fact, the District Judge took judicial notice of them. The documents were a declaration with three exhibits. See them for yourself via PACER: Trevathan v. Select Portfolio Servicing, Inc., Docket No. 18-1, filed July 2, 2015 (S.D. Fla. Case No. 15-cv-61175). They total 17 pages inclusive of 4 pages of cover sheets with nothing but exhibit stickers on them. If this was the proof of ASIC's "filed rate doctrine" defense, it does not appear in the least to be legally sufficient.
Parenthetically, ASIC also filed a second declaration with exhibits on July 2, 2015. The District Judge in this recent LFPI case did not mention that one in his opinion. However, we will mention it in a future article most likely. You can access PACER in the meantime if you want to see this second declaration with exhibits filed on July 2, 2015 at Trevathan v. Select Portfolio Servicing, Inc., Docket No. 18-2, filed July 2, 2015 (S.D. Fla. Case No. 15-cv-61175).
To ASIC's and the declarant's credit, they did not attempt to say that 10 pages of exhibits in Docket No. 18-1 with text on them constituted ASIC's rate filing. But that is the point in a way. In Florida, a lot more goes into a rate filing with the Florida Office of Insurance Regulation than the 10 pages in the Electronic Court File here. Among many other things, each homeowner's insurance rate filing and each "dwelling insurance" rate filing shall include "expense factors" such as "[c]ommissions and brokerage," for starters under the Florida Administrative Code. See Rule 69O-170.014, F.A.C. concerning ratemaking and rate filing procedures for homeowners insurance; Rule 69O-170.141, F.A.C. concerns the same things as to dwelling insurance. Both of them in turn depend on compliance also with Rule 69O-170.013(3), F.A.C., as do many of the Florida's insurance ratemaking and rate filing procedures. That Rule is not brief, as you can see for yourself here:
(3) Filing Submittal Requirements.
(a) Complete rate, rule, underwriting guidelines for both new and renewal business, and form filings shall be submitted with the following information:
Form OIR-B1-582, “Universal Standardized Data Letter,” as adopted in Rule 69O-170.015, F.A.C.
Cover letter that shall include, at a minimum:
The purpose of the filing;
For rate and rule filings, an identification as to whether the filing is made under “file and use” or “use and file”, including the proposed effective date of the rates or the date the rates were implemented;
If this is a resubmission of a previous file, a brief explanation of the prior filing, including reference to the corresponding Florida filing log number shall be provided;
For a rate filing for which a form is also being filed, identification of the corresponding filing log number for the form or when the form will be submitted;
Explanatory memorandum which shall:
Explain the organization of the components of the filing;
Identify and highlight the changes from the current situation;
Manual pages formatted in compliance with Rule 69O-170.006(2), F.A.C. Subsequent to the initial filing, the insurer may defer submitting final amended manual pages until the Office concludes its analysis. Final approval will not occur until final manual pages have been submitted.
(b) All filings shall:
Be separated into either rate/rule only or form only filings; and
(c) Group Filings. Insurers may submit a filing on behalf of any combination of insurers within the insurers' group, provided the effective dates are identical for every insurer and the program is identified in the filing.
But the documents filed with the Court in this recent LFPI case were brief. They did not constitute ASIC's rate filing by any stretch of the imagination. There was no rate filing for homeowner's insurance in the record of this case when the Court ruled that the "filed rate doctrine" applied in this recent LFPI case and there is no rate filing in the Electronic Court Record now either.
Unless the current "plausibility" standard to state a claim upon which relief can be granted in Federal Courts has somehow abolished the following rule, it had been the rule that in order to justify dismissal of a complaint based on an affirmative defense that application of the affirmative defense must appear from the face of the complaint. Assuming that that rule somehow survives, including in the U.S. District Court for the Southern District of Florida, it is difficult at best to see how the filed rate doctrine defense was made to appear from the face of the complaint in the Electronic Court File of this recent LFPI case.
Much more could be said. But the time has come to be content with one final observation here: Parties and Courts accepting the filed rate doctrine as a bar to any insurance-related claim are really saying that the Florida Office of Insurance Regulation approves premium rates that include the kickbacks alleged in LFPI cases including this one. The Florida OIR would certainly be surprised by that assertion.
That the filed rate argument is even raised and accepted in such cases says more perhaps about LFPI litigation than about the filed rate doctrine.
This holding first appeared in July, 2015 in Nevada. A Federal Judge in a Nevada case held that Green Tree Servicing had the contract right under a homeowner's mortgage to place insurance premiums by force on a homeowner for periods of time when there was no insurance. Even though no recognizable insurance coverage could possibly be stretched backwards to cover those elapsed periods of time, yet Green Tree as the mortgage servicer could still force the homeowner to pay the premiums for those periods. It was so held in Morris v. Green Tree Servicing, LLC, No. 2:14-cv-01998-GMN-CWH, 2015 WL 4113212 (D. Nev. July 8, 2015).
Now with a second opportunity to dismiss the plaintiff's claims, this time the Federal Judge dismissed 6 more of the plaintiff's claims with prejudice, in a more recent appearance of this case in Morris v. Green Tree Servicing, LLC, No. 2:14-cv-01998-GMN-CWH, 2015 WL 7573193, at *6 (D. Nev. November 25, 2015). The plaintiff's complaint is left with two (2) alleged claims for breach of contract and one (1) claim apiece for alleged "breach of the implied covenant of good faith and fair dealing" and "intentional misrepresentation."
It is not entirely clear after the latest iteration of Morris v. Green Tree Servicing whether the "backdated insurance" allegations are left to assist in stating one of the remaining claims, or whether these allegations are instead part of the dismissals with prejudice here. This time around the District Judge seemed to speak of them as surviving dismissal, but maybe not. SeeMorris v. Green Tree Servicing, LLC, No. 2:14-cv-01998-GMN-CWH, 2015 WL 7573193, at *3 (D. Nev. November 25, 2015).