11th Cir Holds Lower Court Erred in Holding Bank Waived Arbitration as to Unnamed Putative Class Members

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The Eleventh Circuit  Court of Appeals in  In Re Checking Account Overdraft Litigation, Celia Spears-Haymond held that District Court erred in ruling that a bank waived its rights to compel arbitration of unnamed putative class members’ claims.

The lower court lacked jurisdiction to resolve issues involving unnamed putative class members prior to certification, and that the named plaintiffs lack standing.  Accordingly, the Eleventh Circuit reversed the district court’s order.

Plaintiff’s were consolidated into case number 13-12082 previously had 5 separate class actions regarding bank overdraft charges pending.

http://media.ca11.uscourts.gov/opinions/pub/files/201312082.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]

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/

 

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]

Case Law Update PT II

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Unrue v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 4648205 (Fla. 5th DCA 2014).

 

A court must allow at least one attempt at amendment of a quiet title counterclaim to a mortgage foreclosure; Badgley v. SunTrust Mortg., Inc., 134 So.3d 559, 561 (Fla. 5th DCA 2014), is distinguished because the Badgley dismissal was of amended complaint.

 

 

 

Handel v. Nevel, — So.3d —-, 2014 WL 4627765 (Fla. 3d DCA 2014).

 

Failure to check emailed proposed orders which purportedly misstate a trial court ruling does not constitute excusable neglect under Rule of Procedure 1.540.

 

 

 

Ledo v. Seavie Resources, LLC, — So.3d —-, 2014 WL 4628549 (Fla. 3d DCA 2014).

 

Striking of pro se pleadings is examined under the Ham v. Dunmire, 891 So.2d 492/Mercer v. Raine, 443 So.2d 944 (Fla.1983), analysis instead of the Kozel factors. Consistently failing to respond to discovery despite repeated court orders to do so satisfies the Ham/Mercer requirement for striking pro se pleadings.

 

 

 

Pennington v. Ocwen Loan Servicing, LLC, — So.3d —-, 2014 WL 4629173 (Fla. 1st DCA 2014).

 

The assignment of a mortgage does not necessarily assign or transfer the note.

 

 

 

Sto Corp. v. Greenhut Const. Co., Inc., — So.3d —-, 2014 WL 4629200 (Fla. 1st DCA 2014).

 

Certiorari review is generally not available for orders striking pleadings for discovery violations unless the order results in a “cat out of the bag” scenario or effectively punishes a party in a manner that is not remediable by plenary appeal.

 

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

 

SCRA and Credit Reporting Errors

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The Servicemembers Civil Relief Act (SCRA) provides protection for  active duty military and their families and  also after they return home.

Members may not realize that adverse legal actions or improper reporting on their credit reports have occurred until they need to access credit or some other adverse incident has occurred.

Every service member should pull his or her individual credit report and inspect the negative reporting that occurs on the reports. If in fact there are errors on credit reports, these errors can often be corrected in a matter of a few days.

You can pull a FREE credit report from www.annualcreditreport.com

or go directly to each website and request your report there:

http://www.experian.com/disputes/main.html

http://www.equifax.com/home/en_us

http://www.transunion.com/

After you’ve got your reports, use the online dispute process to remove improper credit reports.   If you have problems we offer a free consultation and can assist you  for a nominal fee in correcting the errors.

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