FL (2nd DCA) Reverses Foreclosure Judgment Due to Inadequate Proof of Amount Due, But Remands Without Involuntary Dismissal

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2nd DCA reversed a final judgment of foreclosure, holding that the mortgagee failed to properly establish the amount of its damages. the court, however, affirmed State Farm had established its standing as the holder of the note and mortgage, and the default of the mortgagor/borrower under the note.  The borrower failed to move for dismissal at the close of evidence, the proper remedy was reversal and remand, rather than involuntary dismissal.

Colson v. State Farm and Wachovia

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/April/April%2015,%202015/2D13-5526.pdf

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

CFPB Updates Its Supervision and Examination Manual as to TILA and RESPA, Issues “‘Know Before You Owe’ Mortgage Shopping Toolkit”

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The Consumer Financial Protection Bureau (“CFPB”) recently released two updates to its Supervision and Examination Manual:

(1.) “TILA Procedures – TILA RESPA Integrated Disclosures (applicable for examinations after the August 2015 effective date), and Higher-Priced Mortgage Loan Appraisals (January 2014), Escrow Accounts (January 2014), and Mortgage Servicing Requirements (January 2014)”

A copy is available at: http://files.consumerfinance.gov/f/201503_cfpb_truth-in-lending-act.pdf

(2.) “RESPA Procedures – TILA RESPA Integrated Disclosures (applicable for examinations after the August 2015 effective date), and Mortgage Servicing Requirements (January 2014)”

A copy is available at: http://files.consumerfinance.gov/f/201503_cfpb_regulation-x-real-estate-settlement-procedures-act.pdf

The CFPB also recently released its new “’Know Before You Owe’ Mortgage Shopping Toolkit.” The toolkit will replace the current Settlement Costs Booklet.

A copy of the toolkit is available at: http://files.consumerfinance.gov/f/201503_cfpb_your-home-loan-toolkit-web.pdf

According to the CFPB, “[t]he updated toolkit is designed to be used in connection with the new Loan Estimate and Closing Disclosure forms that will be effective on August 1, 2015. Creditors must provide the toolkit to mortgage applicants as a part of the application process, and other industry participants, including real estate professionals, are encouraged to provide it to potential homebuyers.”

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

IL App Ct Vacates Foreclosure Due to Alleged HAMP Violation, But Rejects Borrower’s Challenge to Notice of Sale

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The Illinois Appellate Court, First District,  vacated an order confirming a foreclosure sale and remanded the matter for an evidentiary hearing, where the mortgagee allegedly moved forward with a foreclosure sale despite an allegedly pending FHA-HAMP application. http://ow.ly/IHcjh

This dual tracking is common throughout the country and many times the foreclosure attorney and the loss mitigation  office of the lender are not in communication

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

FL App Ct (4th DCA) Reverses Dismissal of Foreclosure Based on Missing Original Note

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The District Court of Appeals of the State of Florida, Fourth District, reversed the involuntary dismissal of a bank’s mortgage foreclosure action.

The bank filed the original promissory note prior to trial, but at trial the parties discovered that it was missing from the court file. The bank tried to introduce a copy into evidence, but the borrowers objected on the basis of the “best evidence” rule. The clerk of court later found the original note and mailed it back to the bank, which then moved for rehearing or a new trial. The trial court denied the motion and entered final judgment for the borrowers.

On appeal, the Appellate Court analyzed the text of Florida Rule of Civil Procedure 1.420(b), which governs involuntary dismissal in bench trials, pointing out that Florida courts have interpreted the rule as preventing a trial court from involuntarily dismissing a case before the plaintiff rests the case which is what was done by the lower court.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-3654.op.pdf   

Florida Trial Court Rules Mortgagee’s Notice Including Info as to Overdue Payments, Amount of Arrears Was Not an Attempt to Collect a Debt

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Robinson v Wells Fargo (FCCPA, Brevard County FL)

A Florida trial court  held that a mortgagee’s direct communication to a borrower regarding funds applied to the loan (which included information as to overdue payments, amount of arrears, and the status of loss mitigation) did not constitute a debt collection communication, and therefore did not violate the Florida Consumer Collection Practices Act’s prohibition on communicating directly with a consumer with knowledge that the consumer is represented by an attorney. 

The Florida Consumer Collection Practices Act (hereinafter FCCPA) defines communication as “the conveying of information regarding a debt directly or indirectly to any person through any medium.”  See §559.55(5).

Under the FCCPA, in collecting consumer debts, no person shall “[c]ommunicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.”  See §559.72(18).

The Florida trial court held that the correspondence at issue was “informational and not an attempt to collect a debt,” and was not a prohibited communication in violation of §559.72(18).

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

Fair Debt Collection Act and Offer of Setttlement

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The U.S. Court of Appeals for the Eleventh Circuit held that a settlement offer for alleged violations of the federal Fair Debt Collection Practices Act does not deprive the district court of subject matter jurisdiction due to mootness, if the settlement offer does not also include an offer of judgment.    
 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

Individual HealthCare Waiver For Obamacare

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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/

 

Notice of Forced Placed Hazard Insurance sent to a Debtor in Bankruptcy was not a communication under FDCPA

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The U.S. District Court for the Northern District of Illinois ruled that notice of force-placed insurance by the lender to a debtor in bankruptcy was not the collection of a debt subject to the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”).

Borrowers had surrendered the property in the property in Chapter 13 bankruptcy and the plan was confirmed by the Court.

The Hazard Insurance Notice stated that:

“Your loan agreement requires that you maintain adequate hazard insurance at all times. . .  You will be charged for the cost of this insurance if we do not receive adequate proof of coverage within 15 days from the date of this letter.”

The Hazard Letter also contained the following statement:

“IF YOU ARE IN BANKRUPTCY OR RECEIVED A BANKRUPTCY DISCHARGE OF THIS DEBT, THIS LETTER IS NOT AN ATTEMPT TO COLLLECT THE DEBT, BUT NOTICE OF POSSIBLE ENFORCEMENT OF OUR LIEN AGAINST THE COLLATERAL OR FOR INFORMATIONAL PURPOSES ONLY.”

The Borrowers filed a complaint against Servicer, alleging that the Hazard Insurance Notice violated three subsections of the FDCPA, 15 U.S.C. §§ 1692g, 1692c, and 1692e, as well the Illinois Collection Agency Act, 225 ILCS 42/1, et seq. (“ICAA”).

The FDCPA regulates a communication from a debt collector only if the communication is made “in connection with the collection of any debt.”  See 15 U.S.C. §§ 1692, et seq.; Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 385 (7th Cir. 2010).

The Court determined that the purpose and context of the communication suggested that the Hazard Insurance Notice was not an attempt to collect a debt, but instead an effort to comply with RESPA, which required Servicer to provide notice to Borrowers before purchasing hazard insurance and billing it to Borrowers.

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

 

Order Granting Motion to Dismiss – 12.11.14

False Claim under FDCPA

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The Eleventh Circuit held that debtors’ complaint stated a false representation claim under the federal Fair Debt Collection Practices Act, where the debt validation/1692g notice identified the loan servicer who started servicing the loan after it was in default as the creditor.”

The Lender transferred the serving rights to the mortgage and note. The Loan Servicer hired a law firm to foreclose. The law firm sent a notice to the Debtor stating that the notice was being sent pursuant to the federal Fair Debt Collection Practices Act (“FDCPA”) to collect on the debt. The notice also identified the loan servicer as the creditor on the loan.

The Debtor filed suit against the Law Firm in federal district court, claiming that the notice sent to him by the Law Firm violated Section 1692e of the FDCPA by falsely representing that the loan servicer was the creditor on the loan. The Debtor claimed that the loan servicer, having been assigned a debt already in default solely for purposes of collecting on the debt, was not a creditor under the FDCPA. The Court found that even if the loan servicer were not a creditor under the FDCPA, it was harmless error to use the term with respect to the servicer, because the loan servicer had the authority to foreclose and otherwise act as the creditor on the loan. See 15 U.S.C. § §1692a(40; 15 U.S.C. §§ 1692e, 1692g(a)(2), 1692k(a).

However, the Court found that the Debtor’s complaint contained allegations as to the date of default, that the debt was assigned to the loan servicer after the default, thus the law firm violated the FDCPA by falsely identifying the loan servicer as the creditor in its debt collection notice.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

TCPA Allows Consent Through Intermediaries

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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: [email protected]