The U.S. Court of Appeals for the Ninth Circuit recently held that the trustee of a California deed of trust securing a real estate loan was not a “debt collector” under the federal Fair Debt Collection Practices Act, because the trustee was not attempting to collect money from the borrower. In so ruling, the Court held that “actions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect ‘debt’ as that term is defined by the FDCPA.” The Court also vacated the dismissal of the borrower’s federal Truth…
Posts published in October 2016
The Supreme Court of Washington recently held that the provisions in a deed of trust allowing a servicer to enter and secure a property after default and before the completion of a foreclosure conflict with Washington state law, and are therefore unenforceable. The Court also held that Washington’s receivership provisions at chapter 7.60 RCW are not the only remedy for servicers to gain access to a borrower’s property. A copy of the opinion in Jordan v. Nationstar Mortg., LLC is available at: Link to Opinion. The borrower defaulted on her mortgage loan. Pursuant to a provision in the deed of trust,…
The District Court of Appeal for the First District, State of Florida recently ordered the dismissal of a foreclosure action because it held that the trial court's jurisdiction expired prior to the entry of the judgment of foreclosure in the case.
9th Cir. Holds Car Dealer Failed to Provide ‘Completed Inspection Report’ as to ‘Certified’ Used Car
9th Cir. Holds Car Dealer Failed to Provide ‘Completed Inspection Report’ as to ‘Certified’ Used Car
The U.S. Court of Appeals for the Ninth Circuit recently held that a car dealership inspection certificate violated California statutory law that required that a vehicle seller provide a “completed inspection report” prior to the sale of any “certified” used car.
The U.S. Court of Appeals for the Fourth Circuit recently confirmed that a law firm and its employees, who pursued foreclosure on behalf of creditors, were acting as “debt collectors” under the federal Fair Debt Collection Practices Act (FDCPA) when they pursued foreclosure proceedings against a borrower. In so ruling, the Court also confirmed that a servicer that does not also own the mortgage loan does not have a duty to provide notice of the sale and assignment of a loan to itself under the federal Truth in Lending Act (TILA) merely because it accepts the assignment of the deed…
The District Court of Appeal of the State of Florida, Second District, recently reversed a final judgment of foreclosure in favor of the trustee of a mortgage-backed securities trust, holding that the mortgagee failed to prove that it had standing when the complaint was filed because there was no evidence that the loan was included in the trust. A copy of the opinion in Powers v. HSBC Bank USA, N.A. is available at: Link to Opinion. A mortgagee sued to foreclose a mortgage as trustee under a pooling and servicing agreement, alleging that it was the holder of the note, a…
The U.S. District Court for the Middle District of Florida, Orlando Division recently ruled that debtors’ FCCPA and TCPA claims did not arise out of and were not related to their mortgage to fall under the jury waiver provisions in the mortgage where the claims arose out of attempts to enforce a debt that was discharged in bankruptcy. The Court also ruled the debtors sufficiently stated a claim under FCCPA by alleging the creditor received notice of the debtors’ bankruptcy case to constitute actual knowledge the debtors’ were represented by counsel. A copy of the opinion in Bray et al v.…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a foreclosure complaint, holding that the “notice of assignment of debt” requirement in the Florida Consumer Collection Practices Act (FCCPA), at Fla. Stat. § 559.715, was not a condition precedent to filing the foreclosure action. However, the Court also held that “the notice requirement of section 559.715 applies to the mortgage foreclosure suit.” A copy of the opinion in Bank of America, N.A. et al v. Siefker et al is available at: Link to Opinion. A mortgagee sued to foreclose its mortgage. The borrower raised…
A New York Supreme Court held that the notice of default requirement in New York Real Property Actions and Proceedings Law (RPAPL) § 1304 applies only to a borrower and not a borrower’s estate. As a result, according to the Court, foreclosing entities do not have to provide a notice of default pursuant to the RPAPL to a borrower’s estate after the death of the borrower. A copy of the opinion in US Bank NA v. Levine may be found here: Link to Opinion. A mortgagee commenced a residential mortgage foreclosure action after a deceased borrower’s estate failed to make payments. The…
The U.S. Court of Appeals for the Eleventh Circuit recently rejected a putative class action against a mortgagee based on the alleged late recording of satisfactions of mortgage in supposed violation of New York law.
The federal Consumer Financial Protection Bureau (CFPB) recently entered into a $28.5 million Consent Order with a depository institution for alleged violations of the “unfair, deceptive, or abusive” acts or practices provisions of 12 U.S.C. §§ 5531 and 5536 relating to the depository institution’s collection of its delinquent accounts. A copy of the Consent Order is available at: Link to Consent Order. Among other things, the alleged “unfair, deceptive, or abusive” acts or practices included: ▪ Threatening legal action the depository institution did not intend to take. As you may recall, it is a violation of the federal Fair Debt…
The U.S. Court of Appeals for the Seventh Circuit recently held that a credit reporting agency had no duty under the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq., to verify the accuracy of a consumer’s signature in a case of alleged forgery. A link to the opinion in Brill v. TransUnion LLC is available at: Link to Opinion. The defendant, one of the three major credit reporting agencies, prepared a credit report based on information it received from a car dealership that the plaintiff was in arrears on a car lease. The plaintiff informed the credit…