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Posts published in April 2016

Fla. App. Court Confirms Admissibility of Prior Servicer’s Records, Substantial Compliance as to Notice of Default

The District Court of Appeal of the State of Florida, Fifth District, recently affirmed a final judgment of foreclosure in favor of a mortgagee, holding that: a) the trial court did not abuse its discretion in determining that the bank’s witness was competent to testify about and in admitting the prior servicer’s loan history records into evidence; b) the default letter was not defective because it substantially complied with paragraph 22 of the mortgage; and c) the borrowers failed to present competent evidence that the loan was subject to Federal Housing Administration (FHA) regulations governing the servicing of federally insured…

N.C. Fed. Court Rejects Defendant’s TCPA Arguments as to ‘Revocation of Consent,’ ‘ATDS’

The U.S. District Court for the Eastern District of North Carolina recently rejected a defendant’s arguments that its contract with the plaintiff did not allow revocation of prior express consent under the federal Telephone Consumer Protection Act (TCPA), and that the defendant’s telephone communication system was not an “automatic telephone dialing system” under the TCPA. A copy of the opinion in Cartrette v. Time Warner Cable, Inc. is available at:  Link to Opinion. In 2013, the plaintiff requested that the defendant install cable services at her home, and agreed to a services agreement that included a paragraph titled, “Robo-Calls,” stating: “[Defendant]…

6th Cir. Holds Residential Loan Underwriters Not Entitled to Overtime Pay Under FLSA

The U.S. Court of Appeals for the Sixth Circuit recently held that residential mortgage loan underwriters are not entitled to overtime pay because their job duties related to general business operations of the bank, and they performed those duties exercising discretion and independent judgment. A copy of the opinion in Lutz v. Huntington Bancshares, Inc., et al. is available at:  Link to Opinion. The plaintiffs, former bank employees, filed a class action suit against a bank, alleging that it failed to compensate them for overtime work in violation of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219.  The…

Consumer Financial Services Conference Slated for Sept. 15-16 in Chicago

The Annual Consumer Financial Services Conference organized by The Conference on Consumer Finance Law will be held Sept. 15-16 at Loyola University Chicago School of Law. The conference will include presentations on the latest developments in consumer financial services law, including mortgage lending and servicing, bankruptcy and debt collection. Twelve CLE credits will be provided, including one hour of Ethics. The fee is $495 for those who register before July 31. For more information, click here.

CFPB Reopens Comment Period on ‘Periodic Statements in Bankruptcy’ Mortgage Servicing Amendments

The Consumer Financial Protection Bureau (CFPB) recently reopened the comment period for its proposed amendments to the mortgage servicing related rules under RESPA and TILA that generally would require servicers to provide modified periodic statements to consumers who have filed for bankruptcy. The full announcement is available at:  Link to Announcement. As you may recall, in December 2014, the CFPB published for notice and comment a proposed rule that among other things would require mortgage servicers to provide certain modified periodic statements to consumers in bankruptcy (subject to specific exceptions), with different disclosures and notices required for different types of…

DC Fed. Court Holds CFPB Exceeded Its Statutory Authority in Issuing CID

The U.S. District Court for the District of Columbia recently denied a petition by the Consumer Financial Protection Bureau (CFPB) to enforce a Civil Investigative Demand (CID) issued to an accreditor of for-profit colleges, holding that the CFPB did not have statutory authority to issue the CID. A copy of the opinion in Consumer Financial Protection Bureau v. Accrediting Council for Independent Colleges and Schools is available at:  Link to Opinion. The CID issued by the CFPB required the respondent to designate a representative to give oral testimony regarding the respondent’s policies, procedures, and practices relating to the accreditation of seven schools.…

Fla. App. Court (3rd DCA) Upholds Limits on Amounts Due by Mortgagees for HOA Charges

The Third District Court of Appeal of the State of Florida recently affirmed final judgment in favor of a mortgagee that took title to real property as a result of a foreclosure, and against two homeowner associations, holding that the safe harbor provision of subsection 720.3085(2)(c), Florida Statutes applied, and therefore that the amounts recoverable by the homeowners associations were substantially limited. A copy of the opinion in Catalina West Homeowners Association, Inc., et al. v. Federal National Mortgage Association is available at:  Link to Opinion. Husband and wife borrowers obtained a mortgage loan in 2005, which was assigned a little over…

SDNY Allows Defendant’s Offer of Full Relief to Moot TCPA Action

In a putative class action for alleged violation of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq.,  and notwithstanding the recent ruling by the Supreme Court of the United States in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), the U.S. District Court for the Southern District of New York recently granted a defendant’s request to enter judgment in the consumer’s favor providing all relief sought only by the plaintiff in his individual capacity. A copy of the opinion in Leyse v. Lifetime Entertainment Services, LLC is available at: Link to Opinion. Since the time of this…

9th Cir. Rejects Challenge to CFPB Enforcement Authority

In a split decision, the U.S. Court of Appeals for the Ninth Circuit recently affirmed, in part, summary judgment in favor of the Consumer Financial Protection Bureau (CFPB) in an enforcement action against a law firm operating as a loan modification company. In so ruling, the Court rejected the attorney loan modification company’s argument that the CFPB was without authority to commence an enforcement action before its director was properly nominated and confirmed. A copy of the opinion in Consumer Fin. Prot. Bureau v. Gordon is available at:  Link to Opinion. The defendant, a licensed California attorney, operated a law…

8th Cir. Declines to Apply Rooker-Feldman to Preclude FDCPA Action Based on State Court Lawsuit

In a federal Fair Debt Collection Practices Act (FDCPA) lawsuit, the U.S. Court of Appeals for the Eighth Circuit recently held that the Rooker-Feldman doctrine does not apply where the complained of conduct was not the underlying judgment but rather events that occurred during the state court litigation. A copy of the opinion in Hageman v. Barton is available at:  Link to Opinion. The original creditor assigned a debt to a collection agency which in turn hired an attorney to collect the debt from the debtor.  The attorney sent a letter, made a phone call and ultimately filed suit in the…

5th Cir. Holds No Waiver by Accepting Payments After Default but Before Acceleration

The U.S. Court of Appeals for the Fifth Circuit recently held that a mortgagee did not waive or abandon its right to foreclose by accepting payments after a default by the borrower, but before acceleration, when no representations were made to the borrower that payments less than the full obligation would bring the loan current. A copy of the opinion in Martin v. Federal National Mortgage Association is available at: Link to Opinion. A borrower obtained a loan secured by a deed of trust (“DOT”).  The DOT obligated the borrower to make monthly payments and gave the mortgagee the right to accelerate…

Maryland Court Holds No Time Limit to Attack a Judgment as ‘Void’

A judgment debtor’s lawsuit requesting the court declare a judgment as “void” is not subject to any limitations period, under a decision from Maryland’s Court of Special Appeals. However, claims arising from the “void” judgment may be subject to Maryland statutes of limitations according to the decision in Jason v. National Loan Recoveries, LLC, available here. No Limitations Period on Claim that an Unlicensed Debt Buyer’s Judgment is ‘Void’ National Loan Recoveries (“NLR”), a debt buyer, obtained a judgment against Jason on an unpaid delinquent credit card account. However, at the time NLR obtained the judgment, it was not licensed…