Archive for June 2016

Pennsylvania Supreme Court Holds Any Entity May Be Liable for Charging Excessive Attorney’s Fees

In an appeal that garnered significant attention from consumer groups who filed briefs as amici curiae, the Supreme Court of Pennsylvania recently held that any entity that charges excessive attorney’s fees in connection with a foreclosure may be liable for treble damages, fines, and attorney’s fees under the Pennsylvania Loan Interest Protection Law. A copy

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Ala. App. Court Rejects Debtor’s Attempt to Recast Creditor’s Claims to Make Them Time-Barred

The Court of Civil Appeals of Alabama recently rejected a debtor’s attempt to recast a creditor’s collection claims to make the claims subject to a shorter statute of limitations. In so ruling, the Court held that Alabama’s civil procedure rule as to motion for summary judgment affidavits is satisfied by testimony as to an affiant’s

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SCOTUS Denies Cert in 2nd Cir. Case Holding Debt Collector Could Not Charge Usurious Fees, Interest Allowed for Bank Originator

As you may recall from our prior updates, the U.S. Court of Appeals for the Second Circuit recently reversed a district court’s ruling that federal National Bank Act preemption applicable to the loan originator allowed a non-bank consumer debt buyer to charge interest in excess of state usury limits. In so ruling, the Second Circuit

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NY Enacts Law Affecting Mandatory Foreclosure Settlement Conferences, Pre-Foreclosure Maintenance of Vacant Properties

On June 23, New York Gov. Andrew Cuomo signed S8159 into law, which among other things contains provisions relating to: Mandatory settlement conferences in residential foreclosures. The new law modifies New York’s mandatory settlement conference provisions for residential mortgage foreclosures to among other things allow courts to sanction mortgagees up to $25,000 and award attorney fees

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CFPB Report Emphasizes Servicer Loss Mitigation Errors, Technology Systems, Training Deficiencies

The federal Consumer Financial Protection Bureau (CFPB) recently issued its “Supervisory Highlights – Mortgage Servicing – Special Edition” (Issue 11), addressing examination issues reportedly found as to loss mitigation acknowledgement notices, loss mitigation offers and related communications, loan modification denial notices, servicer policies and procedures, and servicing transfers. Of note, the Supervisory Highlights also addresses

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Ohio Supreme Court Holds Fannie Mae Not Subject to ‘Penalties or Fines’ While Under Conservatorship

In a putative class action alleging failure to timely record satisfactions of mortgages, the Supreme Court of Ohio recently held that a cease-and-desist order issued by the Federal Housing Finance Agency (FHFA) to Federal National Mortgage Association (Fannie Mae) did not preclude the trial court from exercising jurisdiction under the federal statute governing judicial review

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9th Cir. Holds Discovery Rule Applies in All Types of FDCPA Cases

The U.S. Court of Appeals for the Ninth Circuit recently held that the discovery rule applies equally regardless of the nature of the federal Fair Debt Collection Practices Act (FDCPA) violation alleged by a plaintiff. Therefore, according to the Ninth Circuit, the FDCPA statute of limitations begins to run in all cases when the plaintiff

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ED NY Holds Debtor May Not Force Mortgagee to Take Title in Collateral

The U.S. District Court for the Eastern District of New York recently held that a confirmable Chapter 13 plan cannot both “vest” title to real property and “surrender” that property to a secured lender, and that the secured lender may refuse to accept the vesting in satisfaction of its claim. Thus, the Court held that

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New York App. Court Reverses Dismissal of Foreclosure Action Involving Electronic Note

The Appellate Division of the Supreme Court of New York recently reversed the dismissal of a foreclosure action involving an electronic note, holding that the mortgagee’s evidence of the eNote transaction history and the eNote itself were sufficient to establish the mortgagee’s standing to foreclose. A copy of the opinion in New York Community Bank v.

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Fla. App. Court (5th DCA) Holds Borrower’s Surrender in Bankruptcy Resolves Contested Foreclosure

As an example of the conflicting and contrasting court rulings on the effect of surrender in bankruptcy (see our prior update), the District Court of Appeal of the State of Florida, Fifth District, recently dismissed a borrower’s appeal from a final judgment of foreclosure because the borrower admitted during the course of his bankruptcy proceeding

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SD Fla. Bankr. Rejects Mortgagee’s Attempt to Use Borrower’s Surrender in BK to Resolve Contested Foreclosure

The U.S. Bankruptcy Court for the Southern District of Florida recently denied a creditor’s motion to compel the debtor to surrender mortgaged property and also denied the debtor’s motion to stay the case, holding that a chapter 7 debtor who indicates surrender of real property in his statement of intention is not obligated to surrender

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Fla. App. Court (3rd DCA) Holds Evidentiary Hearing Required to Set Redemption Amount

The Third District Court of Appeal, State of Florida, recently reversed and remanded a trial court’s order incorrectly setting the amount required to redeem a mortgage loan, and held that the trial court must conduct an evidentiary hearing to determine the amount needed to redeem the mortgage loan because the redemption amount was unliquidated. A

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