Archive for February 2016

9th Cir. Upholds Dismissal of False Claims Act Allegations Involving Loans Sold to GSEs

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of a federal False Claims Act (FCA), 31 U.S.C. §§3729-3733, lawsuit brought by private citizen plaintiffs against various mortgage lenders and servicers for supposedly making false certifications regarding loans sold to Fannie Mae and Freddie Mac. In so ruling, the Court held

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3rd Cir. Rejects Borrowers’ Equitable Tolling Arguments in RESPA Captive Reinsurance Class Action

The U.S. Court of Appeals for the Third Circuit recently affirmed summary judgment against a putative class of borrowers who were allegedly victims of a captive reinsurance scheme by a lender and its affiliated reinsurance company. In so ruling, the Court held that the plaintiff borrowers’ claims were barred by the applicable statute of limitations,

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Tennessee Supreme Court Refuses to Set Aside Tax Sale Despite No Notice to MERS

The Supreme Court of Tennessee recently affirmed judgment on the pleadings in favor of a tax sale purchaser, holding that although a party challenging the validity of a tax sale for lack of notice does not have to tender the amount owed before filing suit under the Tennessee tax sale statute, MERS had no protected

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CFPB Issues Final ‘No Action Letter’ Policy Without Substantial Change

The federal Consumer Financial Protection Bureau (CFPB) recently issued its final policy regarding “no action letters.” A copy of the final policy is available at: Link to Policy. The final policy establishes a process to apply for non-binding statements from the CFPB as to whether it has any “present intention to recommend initiation of an

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EDNY Holds Providing Callback Information to Third Party Violated FDCPA

The U.S. District Court for the Eastern District of New York recently granted summary judgment in favor of a debtor in his claim that a debt collector violated the FDCPA when the debt collector, in attempting to reach the debtor by telephone, left a message with a third party providing the debt collector’s callback information.

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Florida Court Holds New Default Notice Not Req’d After Voluntary Dismissal of Prior Foreclosure

The District Court of Appeal of the State of Florida, Fourth District, recently affirmed a final judgment of foreclosure in plaintiff mortgagee’s favor, holding that the plaintiff mortgagee was not required to send a second notice of default after it voluntarily dismissed its first foreclosure action before filing the second foreclosure action. A copy of the opinion in Michael E.

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9th Cir. Rejects Foreclosure Buyer’s Effort to Rescind Foreclosure Sale

The U.S. Court of Appeals for the Ninth Circuit recently held that, under California law, a two-year delay in failing to investigate the facts entitling a party to rescind a foreclosure sale transaction barred that equitable remedy, even though there was a genuine issue of material fact as to whether the plaintiff foreclosure buyer could

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Florida Court Affirms Dismissal of Foreclosure as Plaintiff Not Party to Documents in Evidence

The District Court of Appeal of the State of Florida, Fourth District, recently affirmed the dismissal of a mortgage foreclosure action because the mortgagee failed to present competent, substantial evidence that it had standing to foreclose, due to lack of conformity between the name of the plaintiff mortgagee and the names in the transactional documentation

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7th Cir. Rejects FDCPA Allegations Involving Letters Sent to Debtor’s Counsel

The U.S. Court of Appeals for the Seventh Circuit recently upheld the dismissal of allegations that two letters sent to the consumer’s counsel violated the federal Fair Debt Collection Practices Act (FDCPA), reiterating that its “competent attorney” standard applies regardless of whether a statement to the consumer’s counsel is false, misleading or deceptive. A copy

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Oregon Fed. Court Holds Voicemail Messages on Debtor’s Cell Phone Did Not Violate FDCPA

The U.S. District Court for the District of Oregon recently granted summary judgment in favor of a debt collector, ruling that the collector’s voice mail messages for the debtor did not unlawfully communicate with a third party under the federal Fair Debt Collection Practices Act (FDCPA) and related state law, because the collector could not

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6th Cir. Rejects Debtor’s Chapter 11 BK Plan as Not Proposed in Good Faith

The U.S. Court of Appeals for the Sixth Circuit recently held that a bankruptcy court clearly erred in its finding that a debtor proposed a Chapter 11 plan in good faith, when the secured mortgagee would be paid only in part and very slowly after 10 years with no obligation by the debtor to maintain

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Florida Court Holds Foreclosure Not Barred by Lack of FCCPA Notice of Assignment

The District Court of Appeal of Florida, Second District, recently held that a notice of assignment of a mortgage loan pursuant to the Florida Consumer Collection Practices Act (FCCPA) is not a condition precedent to filing a mortgage foreclosure action, but certified the question to the Florida Supreme Court for resolution as one of great

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