Eleventh Circuit Rule Amendments Effective April 2, 2018

The Eleventh Circuit has made a handful of changes to its rules affecting tax practitioners, appellate mediation, and the ability of counsel coming in after an appeal has been initiated to file a replacement brief. Specifically, the rule amendments:

  • Now require the Tax Court to prepare exhibits in the same way any District Court would, by deleting a sentence in Eleventh Circuit Rule 11-3.
  • Remove the local setting out a procedure for late-filed counsel to file a replacement brief before the Court, former Rule 31-6, and all references to it.
  • Delete the requirement that parties serve “an original and one copy” of the Civil Appeal Statement, and remove the requirement of filing copies of portions of the record with the statement, since electronic filing and access to dockets makes serving extra copies or record documents moot.
  • Without a specific rule governing replacement briefs, does this mean the Eleventh Circuit will no longer allow replacement brief practice? The answer is unclear, but I would counsel clients not to count on it.

    The new rules became effective April 2, 2018.

    Eleventh Circuit Says No Benefits Under RESPA If You Address Your Mail Incorrectly

    Eleventh Circuit Court of Appeals, Atlanta

    Eleventh Circuit Court of Appeals, Atlanta

    In Bivens v. Select Portfolio Servicing, Inc., No. 16-15119 (11th Cir. Aug. 17, 2017), the Eleventh Circuit upheld the rejection of the homeowner’s Real Estate Settlement Procedures Act (“RESPA”) claim, all because he mailed a letter to the wrong address.

    Bivens received a letter from Select Portfolio Servicing (“SPS”) indicating it would be his new loan servicer on his home loan.  Through his attorney, he wrote a letter to SPS–an attempt at a “qualified written request” (“QWR”) under RESPA–“demanding proof of its authority to service his loan.”  But he did not send the letter to the address SPS had designated for receiving QWRs–instead he used a “general correspondence” address.  SPS responded, but did not provide Bivens all the information he requested, so Bivens sued SPS for an alleged RESPA violation.

    The district court granted summary judgment for SPS because Mr. Bivens had failed to mail his QWR to the designated address.  On appeal, the 11th Circuit agreed and affirmed.  The 11th Circuit recognized that the Department of Housing and Urban Development’s regulations “authorized servicers to ‘establish a separate and exclusive office and address for the receipt and handling of qualified written requests.'”  The Secretary of the Department, in a rulemaking notice, had also explained that if a servicer did establish such an office, the borrower was required to “deliver its request to that office in order for the inquiry to be a ‘qualified written request.'”  Bivens, undisputedly, did not.

    The 11th Circuit concluded that SPS had properly designated an exclusive address for receiving QWRs.  It rejected Bivens’ arguments that he was not sufficiently notified of the specific address, and dismissed Bivens’ assertion that the common mail processing at that same address rendered it non-qualifying as a “separate and exclusive office” under the regulations.  In sum, the 11th Circuit held that Bivens’ failure to mail the QWR to the designated address relieved SPS of any duty under RESPA to respond to it.

    Bivens’ claim failed not because of substantive merit but on a techncality, that probably could have been avoided through more careful reading of important notices or a better understanding and knowledge of applicable regulations.  Don’t let this happen to you!  “Technicalities” are one of many reasons to consult an appellate attorney early on–an extra set of eyes that can reduce cost, expedite proceedings, and potentially avoid a later call to a malpractice carrier.

    Newsom Confirmed for Eleventh Circuit Vacancy

    The Senate yesterday, in a 66-31 vote, confirmed Birmingham appellate attorney Kevin Newsom to fill the Eleventh Circuit vacancy left by the Honorable Joel Dubina when he took senior status in 2013.

    Prior to his confirmation, Newsom was a partner with Bradley Arant Boult Cummings in Birmingham, where he served as chair of the firm’s appellate group. He formerly served as Solicitor General of Alabama. He is the Fifth Trump nominee to be confirmed by the Senate, and the first on the Eleventh Circuit. Check out Senator Shelby’s floor speech for more background on our new judge.