Bankruptcy

SD FL Confirms Communications Sent Only to Debtor’s Counsel Not Actionable Under FDCPA

May 15, 2015/in Bankruptcy, Case Law, Consumer Financial Protection Bureau, Credit/by damg

In Maignan v. Seterus, Inc., No. 14-CV-22488 (S.D. Fla. Feb. 11, 2015), the United States District Court for the Southern District of Florida found that an allegedly deceptive communication to a plaintiff’s attorney, as opposed to the plaintiff himself, is not actionable under either the federal Fair Debt Collection Practices Act (FDCPA) or its state counterpart, the Florida Consumer Collection Practices Act (FCCPA).

The action was dismissed with prejudice a borrower’s action under both the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692(e)(2) and (f)(1) (“FDCPA”) and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.72(9) (“FCCPA”), confirming that communications directly solely to a debtor’s attorney are not actionable.

The Eleventh Circuit’s “least sophisticated consumer” test, a communication might violate the FDCPA if the language used by the debt collector tends to mislead the least sophisticated recipients of a debt collector’s letters and telephone calls does not apply to attorneys for borrower.

Order and Opinion (11Feb15) – Dismissal w Prejudice

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761 Phone: (727) 410-2705; email: calh@gate.net

Bank of America v Caulkett

March 4, 2015/in Bankruptcy, Bankruptcy Middle District Florida, Case Law, Florida Foreclosure Defense, Uncategorized/by damg

Bank of America v. Caulkett (March 24 US Supreme Court Hearing) — A complex bankruptcy issue: When there are multiple liens on a property, can the debtor “strip off” junior mortgage liens if the debt owed a senior lien holder exceeds the value of the property? (Bank of America v. Toledo-Cardona also deals with the same issue and will be heard on the same day.)

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761 Phone: (727) 410-2705; email: calh@gate.net

U.S. Supreme Court Agrees to Review Florida Chapter 7 Lien Strip Cases

February 3, 2015/in Bankruptcy, Bankruptcy Middle District Florida, Case Law, Uncategorized/by damg

The U.S. Supreme Court agreed earlier this week that it would hear the cases of Bank of America v. Caulkett and Bank of America v. Toledo-Cardona following the bank’s appeal in both cases, which were both decided in favor of the homeowners by the 11th Circuit U.S. Court of Appeals back in May. The Supreme Court said in granting the petition on Monday that it would consolidate the two cases and allot one hour for oral arguments.

This is not good for chapter 7 debtors in Alabama, Georgia, or Florida because the Supreme Court might disagree with Eleventh Circuit decisions that currently allow lien strips in chapter 7 cases. An unfavorable decision could potentially invalidate numerous previous lien strips in chapter 7 cases in these states.

The 1992 case of Dewsnup will be clarified. Is there a distinction between strip offs and strip downs in Ch. 7 as the 11th Circuit believes, or not? Stay Tuned.

Individual HealthCare Waiver For Obamacare

January 9, 2015/in Bankruptcy, Consumer Financial Protection Bureau, Credit, Florida Foreclosure Defense, ObamaCare, Uncategorized/by damg

If I’m unemployed, do I have to pay the fee for not having coverage? Yes.

Like other Americans, you must have minimum essential coverage or pay a fee. This is true regardless of your employment status.

There are several exemptions from the fee that may apply to people who have no income or very low incomes. If you have an exemption, you don’t need to pay the fee for being uncovered.

Hardship Application Link: https://marketplace.cms.gov/applications-and-forms/hardship-exemption.pdf

The individual shared responsibility provision requires you and each member of your family to have basic health insurance coverage (also known as minimum essential coverage), qualify for an exemption, or make an individual shared responsibility payment when you file your federal income tax return.

How you get the exemption depends upon the type of exemption for which you are eligible. You can obtain some exemptions only from the Marketplace in the area where you live, others only from the IRS, and yet others from either the Marketplace or the IRS.

that can sometimes lead to bankruptcy.

If you must make an individual shared responsibility payment with your return, the annual payment amount is the greater of a percentage of your household income or a flat dollar amount, but is capped at the national average premium for a bronze level health plan available through the Marketplace. You will owe 1/12th of the annual payment for each month you or your dependent(s) don’t have either coverage or an exemption.

For 2014, the annual payment amount is:

The greater of:
- 1 percent of your household income that is above the tax return filing threshold for your filing status, or
- Your family’s flat dollar amount, which is $95 per adult and $47.50 per child, limited to a family maximum of $285,
But capped at the cost of the national average premium for a bronze level health plan available through the Marketplace in 2014. For 2014, the annual national average premium for a bronze level health plan available through the Marketplace is $2,448 per individual ($204 per month per individual), but $12,240 for a family with five or more members ($1,020 per month for a family with five or more members). See Rev. Proc. 2014-46.
http://www.irs.gov/Affordable-Care-Act/Individuals-and-Families/ACA-Individual-Shared-Responsibility-Provision-Calculating-the-Payment

http://www.irs.gov/Affordable-Care-Act/Individuals-and-Families/ACA-Individual-Shared-Responsibility-Provision-Exemptions

https://www.healthcare.gov/fees-exemptions/hardship-exemptions/

TCPA Allows Consent Through Intermediaries

October 7, 2014/in Bankruptcy, Bankruptcy Middle District Florida, Consumer Financial Protection Bureau, Credit, Uncategorized/by damg

The Eleventh Circuit, U.S. Court of Appeals, held that the TCPA allows callers to obtain consent through intermediaries.

The Court also held that a 2008 FCC Ruling interpreting the “prior express consent” defense applies to all creditors and debt collectors, including medical debt collectors, when calling wireless telephone numbers.

The 11th Circuit held that the district court lacked jurisdiction to consider the validity of the 2008 FCC Ruling, pursuant to the Hobbs Act.

http://media.ca11.uscourts.gov/opinions/pub/files/201314008.pdf

With regards to autodialers to cellphones see

http://www.ca11.uscourts.gov/opinions/ops/201310951.pdf

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761 Phone: (727) 410-2705; email: calh@gate.net

Ocwen $2 Billion Principal Reduction Settlement

July 23, 2014/in Bankruptcy, Consumer Financial Protection Bureau, Florida Foreclosure Defense, Uncategorized/by damg

In December, 2014, Ocwen Financial Corporation and Ocwen Loan Servicing along with Litton Home Servicing and Homeward Residential Holdings (previously known as American Home Mortgage Servicing or AHMSI) entered into a consent order with 49 States and the District of Columbia to provide $2 billion in principal reduction to underwater borrowers and provide $125 million to foreclosure victims as a result of Ocwen’s systemic misconduct at every stage of the mortgage servicing process. If they think you qualify for a cut a notice package has been mailed to you. http://www.ncbrc.org/blog/2014/07/10/claim-forms-available-in-ocwen-settlement/

How to apply: https://nationalocwensettlement.com/

http://www.consumerfinance.gov/blog/claim-forms-for-the-ocwen-settlement-available-now/

Where to apply:

https://nationalocwensettlement.com/mainpage/ClaimForm.aspx

National Ocwen Settlement Administrator with questions at 1-866-783-5382, Monday through Friday, 7:00 a.m. – 7:00 p.m. Central Time

Claim forms submitted by mail must be postmarked by September 15, 2014.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761 Phone: (727) 410-2705; email: calh@gate.net

Order 11th Cir – Lodge v. Kondaur – stay violation that causes emotional harm can be “actual” damages under 362(k)

July 21, 2014/in Bankruptcy, Case Law/by damg

Consumer debtors claimed violation of the bankruptcy stay based on a “Notice of Sale” that was published in a local newspaper, and in letters that they received from law firms. The sale was canceled but debtors did not learn that until later.

Although two separate motions for relief from stay were filed by two different “creditors”, the motions were never ruled on and the stay remained in effect throughout the bankruptcy proceedings. After discharge, the debtors sued seeking damages under § 362(k) for their emotional distress.

The First, Seventh, and Ninth Circuits have ruled that emotional damages are encompassed within the “actual” damages provision in § 362(k). The Fifth Circuit has indicated agreement with this determination.

The Ninth Circuit set up a test for courts to apply when considering whether a plaintiff can recover damages for emotional distress:

1. the plaintiff suffered “significant harm,” as opposed to “[f]leeting or trivial anxiety or distress”;

2. that significant harm is “clearly establish[ed]”; and

3. there is “a causal connection between that significant harm and the violation of the automatic stay (as distinct, for instance, from the anxiety and pressures inherent in the bankruptcy process).”

The Ninth Circuit explained that the second part of the test can be covered by corroborating medical evidence or non-expert testimony (family members, friends, or co-workers) about the manifestations of the anguish.

Lodge v. Kondaur Capital Corp., — F.3d —-, 2014 WL 1813298 (11th Cir. May 8, 2014)

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761 Phone: (727) 410-2705; email: calh@gate.net

PAYDAY Lenders – Indian Tribes

March 28, 2014/in Bankruptcy, Pay Day Lenders/by damg

Judge, Gloria M. Navarro of the Federal District Court in Nevada, said that the FTC was within its rights to pursue payday lenders that claim their ties to Native American tribes make them immune to laws restricting high-cost loans, its case against one such lender, AMG Services, which the commission accused of misleading borrowers desperate for cash.
http://www.ftc.gov/system/files/documents/cases/140319amgorder.pdf

Regulators in at least 21 states have tried to go after lenders connected to tribes. Illinois attorney general filed a lawsuit against All Credit Lenders, a short-term lender that the office accused of violating state usury laws that cap interest rates at 36 percent.
http://dealbook.nytimes.com/2014/03/18/costly-loans-are-drawing-attention-from-states/

The concern is hidden fees and other costs can make interest rates skyrocket above 300 percent, trapping consumers in a long cycle of debt.

This is why it’s important to shop around before you sign the deal, no matter how desperate for the cash you may be, don’t get yourself into more difficulties down the line. Across the United States, you can find various regulators offering caps on fees and interest rates. The Flordia (the Miami) area seems to be one of the better places to take out one of these PayDay loans, here’s more on payday loans in Florida.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761 Phone: (727) 410-2705; email: calh@gate.net