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Posts published in “RESPA”

8th Cir. Confirms Court Costs and Attorney’s Fees Not Sufficient for Actual Damages Under RESPA or MOSLA

The U.S. Eighth Circuit Court of Appeals recently upheld a trial court's summary judgment ruling against a borrower on a claim alleging a violation of the Minnesota Mortgage Originator and Servicer Licensing Act (MOSLA) due to his failure to prevail on his claims asserted under the federal Real Estate Settlement Procedures Act (RESPA) upon which the borrower's MOSLA claims were predicated.

Illinois App. Court (1st Dist.) Holds TILA ‘Failure to Rescind After Notice’ Claims Subject to 1-Yr Statute of Limitations

The Appellate Court of Illinois, First District, recently affirmed a trial court order dismissing a foreclosure counterclaim by two borrowers seeking rescission under the federal Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., holding that section 1640(e)’s one-year statute of limitation for legal damages applied to bar the borrower’s section 1635 equitable claim, when the borrowers demanded rescission within three years of closing but did not file suit within one year after the lender failed to respond.

9th Cir. Holds Loan Secured by Property Held in Trust for Family Member Can Be ‘Consumer’ Loan

The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a trustee borrower’s claims under the federal Truth-In-Lending Act, Real Estate Settlement Procedures Act, and California’s Rosenthal Fair Debt Collection Practices Act seeking rescission of a loan obtained to effectuate repairs upon a property inhabited by the trust’s beneficiary.

6th Cir. Holds Non-Borrower Mortgagor Could Not Sue Under RESPA

The U.S. Court of Appeals for the Sixth Circuit recently affirmed dismissal of a homeowner’s claims under the federal Real Estate Settlement Procedures Act (RESPA), where the homeowner plaintiff only signed the mortgage, but not the note evidencing the loan. The Sixth Circuit’s holding reinforced that a plaintiff who does not have personal obligations under the loan agreement is not a “borrower,” and thus cannot assert claims under RESPA, which extends causes of action only to “borrowers.” A copy of the opinion in Keen v. Helson is available at: Link to Opinion. Husband and wife borrowers took out a loan secured by…

11th Cir. Holds Moving to Reset Foreclosure Sale During Loss Mit Did Not Violate RESPA or FDCPA

The U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of a borrower’s claim, holding that a mortgage servicer’s motion to reschedule a previously set foreclosure sale after it approved the borrower for a trial loan modification plan did not violate the federal Real Estate Settlement Procedures Act because the motion to reschedule did not move for an order of sale. A copy of the decision in Landau v. RoundPoint Mortgage Servicing Corp. is available at:  Link to Opinion. A borrower defaulted on her mortgage loan and her lender filed a foreclosure action.  The lender obtained final summary judgment in…

5th Cir. Holds Providing Reason for Loss Mit Denial Once Is Enough Under RESPA

The U.S. Court of Appeals for the Fifth Circuit recently held that a mortgage servicer only had to comply with the federal Real Estate Settlement Procedure Act (RESPA) requirements regarding loss mitigation applications once when the servicer had already provided the same reasons for the denial of a loan modification in response to a prior loss mitigation application. A copy of the opinion in Germain v. US Bank National Association is available at:  Link to Opinion. In 2005, a borrower executed a deed of trust in favor of a lender to refinance his home. In 2012, the servicer began servicing the…

5th Cir. Holds Lender Not Vicariously Liable for Servicer’s Alleged RESPA Violations

In a case of first impression, the U.S. Court of Appeals for the Fifth Circuit recently held that a lender was not vicariously liable for a loan servicer’s alleged violation of the federal Real Estate Settlement Procedures Act holding that (a) the borrower failed to plead an agency relationship, “an essential element of a vicarious liability claim; and (b) even if an agency relationship existed, the lender could not be vicariously liable as a matter of law for the servicer’s alleged failure to comply with RESPA. A copy of the opinion in Christiana Trust v. Riddle is available at:  Link to Opinion. The borrower took…

5th Cir. Finds Ambiguity in Deed of Trust’s Provisions for Real Estate Taxes and Escrow

The U.S. Court of Appeals for the Fifth Circuit held that ambiguity in the deed of trust regarding the lender’s right to pay real estate taxes and establish an escrow account precluded entry of summary judgment in favor of the loan servicer on the borrower’s breach of contract claim. Additionally, the Court vacated a counterclaim for foreclosure in favor of the loan servicer and remanded the claim for reconsideration, noting that foreclosure would only be available if the servicer could show that it complied with contractual requirements. Finally, the Fifth Circuit affirmed the trial court’s rulings in favor of the…

7th Cir. Holds Attorney’s Fees and Emotional Distress Not ‘Actual Damages’ for RESPA QWR Claim

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s finding that a servicer did not violate the federal Real Estate Settlement Procedures Act (RESPA) and Wis. Stat. § 224.77 because the borrower could not prove that the servicer’s alleged failure to completely respond to a “qualified written request” (QWR) caused any actual damages, notwithstanding the alleged attorney’s fees incurred in reviewing the servicer’s response and the borrower’s alleged emotional distress. In so ruling, the Seventh Circuit held that “RESPA was not intended to give people who cannot pay their mortgages the means to engage in…

7th Cir. Holds RESPA’s QWR Provisions Require Actual Damages Caused by the Violation

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s finding that a servicer did not violate the federal Real Estate Settlement Procedures Act (RESPA) because the borrower could not prove that the servicer’s failure to respond to a “Qualified Written Request” (QWR) caused her actual damages, as required by 12 U.S.C. § 2605(f)(1)(A). A copy of the opinion in Linderman v. US Bank National Association is available at:  Link to Opinion. In 2004 a borrower bought a home with the help of a mortgage loan.  The borrower lived in the home with her ex-husband, their…