The Consumer Financial Protection Bureau has issued its final rule confirming the delay of the effective date of the TILA-RESPA Integrated Disclosures (TRID) rule to Oct. 3, 2015. A copy of the final rule is available at: Link to Final Rule. The final rule also makes certain technical corrections, including: Amending 12 CFR § 1026.38(i)(8)(ii) and (iii)(A) to “include, in the amount disclosed as ‘Final’ for Adjustments and Other Credits, the amount disclosed under § 1026.38(j)(1)(iii) for certain personal property sales, thus conforming the calculation of Adjustments and Other Credits on the Closing Disclosure and Loan Estimate;” and Amending 12 CFR…
A recent decision found there’s a difference between advertising and telemarketing messages under the TCPA and that difference may have created a horror story for one movie promoter under the decision from the Eighth Circuit Court of Appeals. “Liberty. This is a public survey call. We may call back later,” was the prerecorded message left twice on the voicemails of plaintiffs Ron and Dorit Golan. The calls, if answered, would have also played a 45-second scripted message that included a survey and promotional material about the movie. However, because the plaintiffs did not answer the calls, they only heard the short message regarding…
The Court of Appeals of New York recently held that a mortgage loan repurchase action for breach of representations and warranties accrued when the representations and warranties were made, and the obligation to cure and repurchase was not a separate and continuing promise of future performance. A copy of the opinion is available at: Link to Opinion. The sponsor of a residential mortgage-backed securities trust purchased 8,815 mortgage loans from third-party originators. This pool of loans was sold to an affiliate, known as a “depositor,” pursuant to a Mortgage Loan Purchase Agreement (MLPA) between the sponsor and the depositor dated…
The U.S. Court of Appeals for the Ninth Circuit recently affirmed a district court’s dismissal of a borrower’s claims for breach of contract and breach of fiduciary duty relating to alleged failures to properly disburse escrow amounts against a non-servicer assignee of a mortgage loan. In so ruling, the Court confirmed that Washington does not bar splitting the loan servicing duties from the right to receive payment under the note. A copy of the opinion is available at: Link to Opinion. The deed of trust between the borrower and the loan originator required the borrower to pay the hazard insurance…
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a borrower’s allegations under the federal Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act as to one letter, the purpose of which was to request additional information, but reversed as to two other letters, holding that they were sent in connection with the collection of a debt. A copy of the opinion is available at: Link to Opinion. The plaintiff’s mortgage loan went into default and the law firm representing the lender sent the borrower three letters. Two weeks later, the borrower…
The U.S. Court of Appeals for the Fourth Circuit recently reversed the dismissal of a Chapter 13 bankruptcy debtor’s complaint filed in federal district court alleging that defendants foreclosed on and sold the debtor’s home in violation of the automatic stay, holding that the federal district court had subject matter jurisdiction and the complaint adequately stated a plausible claim for relief under 11 U.S.C. § 362(k). In so ruling, the Court held that 11 U.S.C. § 362(k), which created a private right of action for damages for willful violation of the stay, may be filed in federal district court because…
Yesterday I commented on a recent decision from the Eleventh Circuit Court of Appeals, Miljkovic v. Shafritz and Dinkin, P.A. et al., noting it spelled trouble for attorneys engaged in debt collection. Miljkovic incorrectly construes the Fair Debt Collection Practices Act and its legislative history as well as two U.S. Supreme Court cases, to arrive at the mistaken conclusion that attorney litigation activity is regulated by the FDCPA, except for one minor exemption. Hours later, a trial court sitting in the Eleventh Circuit handed down a decision in CFPB v. Frederick J. Hanna & Associates, P.C., et al., which allows the Consumer Financial Protection…
The Maryland Court of Special Appeals recently held that a borrower could not maintain a lawsuit asserting federal Fair Debt Collection Practices Act and other related state-law claims because those claims were barred by collateral estoppel due to litigation in a prior collection action. In so ruling, the Court held that the doctrine of res judicata did not necessarily bar the borrower from narrowly attacking the means used to collect the debt under the FDCPA and state law, rather than attacking the validity of the debt itself, because the FDCPA and related state-law allegations gave rise to new and different…
The Eleventh Circuit Court of Appeals recently handed down a decision that went too far in holding that all litigation related activity is subject to the FDCPA. The decision in Miljkovic v. Shafritz & Dinkin, P.A., et al., is available here. In pursuing their client’s judgment, an attorney and law firm obtained a garnishment against Nedzad Miljkovic. Miljkovic filed a claim for exemption in response, which the creditor, through its attorneys, disputed in a sworn reply. However, the writ was eventually dissolved on the creditor’s attorney’s motion after Miljkovic provided discovery showing that his wages were exempt from garnishment under section 222.11(2), Florida Statutes. Miljkovic Sues…
The U.S. Court of Appeals for the Eleventh Circuit recently held that the FDCPA applies to litigation activity, even when the debt collector’s conduct is directed at someone other than the consumer, such as the court or the debtor’s counsel. A copy of the opinion is available at: Link to Opinion. A creditor obtained a money judgment against a debtor, and then sought and obtained a continuing writ of garnishment on the debtor’s wages in order to collect the debt. In response, the debtor filed a claim of exemption, which the creditor disputed in a sworn reply. However, the writ…
The FCC’s much anticipated TCPA rulings were released this past Friday. On Friday, July 17, our panel of esteemed TCPA attorneys – both plaintiff’s and defense – will give you a first look at how the rulings will drive TCPA litigation, from both the plaintiff’s and defense perspective. I expect to hear some interesting debate. Here are the salient issues we will cover: Dialer Technology What do the rulings say about predictive dialers, preview dialers and future dialing technology? What does the FCC mean what it talks about “capacity” and “calling from a list of numbers?” Can you ever be certain…
The Federal Communications Commission has issued its Declaratory Ruling and Order FCC 15-72 addressing more than 20 requests for clarification or other action relating to various issues under the TCPA. One of the dissenting Commissioners Ajit Pai noted that, “[r]ather than focus on the illegal telemarketing calls that consumers really care about, the Order twists the law’s words even further to target useful communications between legitimate businesses and their customers. This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.” A copy of the Order is available…