Miami-Dade County Courthouse. Image courtesy of New York Public Library.
The lessons of Lyons seem clear. First, when the affirmative defense of the filed rate doctrine is raised by a motion to dismiss, the defendants should be required to put proof in the record supporting their filed rate contentions. The evidence should be sufficient to prove that the applicable State regulatory authority over insurance rates had the power to approve, and did approve, the rates requested in the rate filing -- which included any alleged kickbacks or commissions or other charges which the loan contracts did not authorize.
Second, the plaintiffs faced with a filed rate challenge to their complaints should not sit idle. They should instead treat a motion to dismiss supported by the defendants with evidence as requiring rebuttal every bit as much as a motion for summary judgment supported by evidence requires rebuttal. The plaintiffs should file rebuttal evidence, or otherwise challenge the evidence presented by the defendants, or be prepared to suffer the entry of judgment.
The same lawyers who argued the defendants' filed rate doctrine defense in Lyons are arguing that the Southern District of New York's decision in that case should be imported to the Southern District of Florida, in a sense. They have raised Lyons as a reason that the Court in Florida should apply the filed rate doctrine in another lender force-placed insurance practices case, Lowe v. Loancare, LLC (S.D. Fla. No. 1:15-cv-23700-KMM).
Next up: Lowe, Lyons, and is the Southern District of Florida an extension of the Southern District of New York concerning the filed rate doctrine in insurance cases (perhaps the "really Southern" branch of the Southern District of New York in insurance cases)?
Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015). All rights reserved.
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