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FCC Issues Significant TCPA Interpretation Changes Affecting Telemarketing, Servicing

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…

FTC Bans Scammers Who Targeted Spanish-Speaking Consumers

The operators of a fraudulent debt collecting scheme have settled Federal Trade Commission charges against them by agreeing to be banned from the debt collection business and telemarketing. The defendants were named in an FTC complaint last year, which alleged that they collected millions of dollars from Spanish-speaking consumers throughout the country by demanding they pay non-existent debts. The various companies and individuals were said to have been threatening their victims with lawsuits and arrest and immigration status investigations if they did not agree to make payments on the falsified debts. The settlement orders that the fraudulent company and related…

Maine Amends Debt Collection Statute, Bills Pending in Other States

Maine has amended its statute regulating debt collection while bills regarding debt collection are pending in other states.  Here’s a breakdown of Maine’s amendments: Written or Court Entered Settlement and Payment Agreements Settlement agreements must be in a writing or entered in “open court” or “approved by the court and included in a court order.” For settlement agreements that are not made in open court or in a court order, the debt collector must “provide” a copy of the written settlement agreement to the debtor within 10 days of the agreement being made. A debtor is not required to make…

Eighth Circuit Confirms Collection Action Not ‘Adverse Action’ Under FCRA

The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a debtor’s federal Fair Debt Collection Practices Act (FDCPA), federal Fair Credit Reporting Act (FCRA), and state law claims where a debt collector for a major bank pulled the debtor’s credit report and served a garnishment summons after the debtor allegedly had sent a cease-and-desist letter to the debt collector. In so ruling, the Court confirmed that: (1) a debt collector may pull a debtor’s credit report for collection purposes, and that the debt collector did not need to notify the debtor before reviewing such information;…

Senate Bill Proposes to Make Robocalls a Federal Crime

A bill before the U.S. Senate would make commercial robocalls a federal crime, exacting up to a $20,000 fine and a prison sentence of up to 10 years. Introduced on June 25 by Sen. Chuck Schumer (D-NY), S. 1681 would criminalize the use of an automatic telephone dialing system or an artificial or prerecorded voice for calls made “for the purpose of soliciting or encouraging the purchase or rental of, or investment or enrollment in, property, goods, or services,” unless the caller obtained the “prior express written consent” of the recipient of the call. The proposed QUIET Act is nearly identical to…

Florida Court Denies Motion to Dismiss FCCPA Claim Against Loan Owner Based on Alleged Conduct of Servicer, Foreclosure Counsel

The Seventh Judicial Circuit Court of Florida recently denied a motion to dismiss a borrower’s counterclaims alleging violations of the Florida Consumer Collections Practices Act (FCCPA) against the owner of a mortgage loan, based on alleged communications by the servicer and foreclosure counsel with a debtor supposedly known to be represented by counsel and attempting to collect an allegedly invalid debt. In so ruling, the Court also held: Merely foreclosing on a mortgage, without more, did not constitute “debt collection” under the FDCPA; False statements regarding a debt made to a court instead of directly to the debtor are not…

First Circuit Holds Mortgagor Cannot Sue Mortgagee to Quiet Title in Title Theory State

The U.S. Court of Appeals for the First Circuit recently affirmed the dismissal of two mortgagors’ quiet title allegations against a mortgagee, holding that the plaintiff mortgagors could not assert a quiet title claim under Rhode Island law against the mortgagee defendants because Rhode Island is a title theory state, and the mortgagors’ equitable interest in title to the property at issue was not adverse to the mortgagee’s legal interest in title. A copy of the opinion is available at: Link to Opinion. The plaintiff mortgagors (one of whom is an attorney) claimed uncertainty as to which entity held an…

NY High Court: Only Possession of Note is Required to Have Standing to Foreclose

The New York Court of Appeals recently confirmed that, under New York state law, a loan servicer had standing to foreclose on delinquent borrowers based only upon the servicer’s demonstrated possession of the note evidencing the borrowers’ loan since the time the foreclosure action was filed. The Court also held that, although the loan servicer’s affidavit set out sufficient facts to show exclusive possession and control of the note prior to the date the foreclosure action was filed, the affidavit would have been better and clearer if it had also included facts describing how the servicer came into possession of…

Consumer Financial Services Conference Slated for Nov. 19-20 in Chicago

The Annual Consumer Financial Services Conference organized by The Conference on Consumer Finance Law, and co-sponsored by the Loyola University Chicago School of Law, Maurice Wutscher and other law firms, will be held Nov. 19-20, in Chicago. The conference will include presentations by some 45 of the best and brightest speakers and practitioners in the country, on the following topics: TCPA: The New FCC Order Fair Lending and HMDA CFPB Administrative Appeals Arbitration Developments UDAAP Cybersecurity CFPB Regulation of Non-Bank Auto Finance TRID: Issues and Implementation Flood and Lender-Placed Insurance Mortgage Servicing and Bankruptcy State Regulation of Debt Collection/Debt Buyers Credit…

California Appellate Court Holds Tender Not Required for HBOR

The Court of Appeal of the State of California, Second Appellate District, recently reversed a trial court’s dismissal of a complaint alleging a servicer violated California’s Homeowner Bill of Rights by proceeding with a trustee’s sale when the servicer and the borrowers were allegedly exploring a loan modification. In so ruling, the Appellate Court made two key holdings: First, the Appellate Court held that a borrower does not need to tender the balance due prior to instituting a suit for alleged violation of the HBOR. Second, the Appellate Court also held that a borrower’s failure to timely provide the documents…

Ninth Circuit Holds Debt Collector Did Not Violate FDCPA By Charging Pre-Judgment Interest

The U.S. Court of Appeals for the Ninth Circuit recently held that a debt collector’s demand seeking 10 percent interest that was not expressly authorized by the debt agreement did not violate the federal Fair Debt Collection Practices Act or California’s equivalent Rosenthal Act, because the pre-judgment interest was permitted by state law. A copy of the opinion is available at: Link to Opinion. The plaintiff incurred a debt for dental services in 2011. The provider referred the debt to a collection agency, which sent a demand letter in May 2012 seeking the principal balance owed, plus interest at 10…

CFPB Proposes to Delay TRID to October 3, 2015

As referenced in our prior update, the federal Consumer Financial Protection Bureau (CFPB) issued a proposed rule to change the effective date for the “Know Before You Owe” TILA-RESPA Integrated Disclosure rule to October 3, 2015. A copy of the proposed rule and request for public comment is available at: Click Here The CFPB previously indicated the effective date would be delayed to Oct. 1, 2015. The CFPB stated that it “is proposing a new effective date of Saturday, October 3,” explaining that “scheduling the effective date on a Saturday may facilitate implementation by giving industry time over the weekend…