2nd Circuit- Servicing Notice Not Exempt from FDCPA

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A case which may change how you proceed in your foreclosure defense recently came out.  I have listed a brief synopsis of it below.   So discuss how this may apply to your case contact us for your free consultation.

The mortgage servicer argued that because the purpose of the servicing transfer notice was to provide transfer-of-servicing information in order to comply with the federal Real Estate Settlement Procedures Act (RESPA), not to collect the debt, it had no obligation to provide the information required by the FDCPA.

The Second Circuit side-stepped the issue, “concluding that an attempt to collect a debt—which we believe the Letter was—qualifies as a communication ‘in connection with the collection of any debt.’” They also held that viewed objectively it was an attempt to collect since it (a) referred to the consumer’s particular debt;  (b) instructed him to send payments to the new servicer at a particular address;  (c) contained boilerplate language expressly stating that “this is an attempt to  collect upon a debt” specifically referencing the FDCPA; and, (d) warned that he must dispute the debt’s validity within 30 days after receiving the letter or the debt would be assumed to be valid.

http://www.ca2.uscourts.gov/decisions/isysquery/32503ca2-ffec-4f95-9eaf-f244781216b8/1/doc/14-191_opn.pdf

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

Parent Company Lacks Standing to Foreclose

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The 4th DCA decided on July 1, 2015  that a Final Judgment of foreclosure be reversed due to lack of standing, where  the whole owned subsidiary  rights to n the note could not be enforced by the parent company    Wright v. JPMorgan Chase Bank N.A., 4th DCA Case No. 4D14-565 (July 1, 2015).  The Court held that absent evidence that the loan was purchased by JPM, it could not enforce the note. JPM did not introduce any purchase agreement or other evidence that it had acquired the note.  The Court also cited   Am. Int’l Group, Inc. v. Cornerstone Bus., Inc., 872 So 2d. 333,336 (Fla. 2nd DCA 2004) and  Federated Title Insurers, Inc. v. Ward, 538 So. 2d 890,891 (Fla. 4th DCA 1989).

 

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

No More Lien Stripping in Chapter 7

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Today, the Supreme Court decided the case of Bank of America, N.A. v. Caulkett.  The Court held, unanimously that a debtor in chapter 7 cannot void a junior mortgage lien pursuant to Section 506(d)( lien strip).   SCOTUS reinforced Dewsnup in holding that, the junior lien claims are secured by a lien and allowed under Section 502, that claim cannot be voided, however, when you add the effect of Section 1322(b)(2), the results might well be different, as they were in Nobleman ( you can strip in 13)sup ct decision no more lien strip in 7 6-1-15

http://www.housingwire.com/articles/34051-supreme-court-rejects-2nd-lien-stripping-in-chapter-7-bankruptcies#.VWygK_5o9U8.facebook

 

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

Bankruptcy Court Denies Creditor’s Request to Compel Debtor to Surrender Property

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In re Trussel

2015 WL 1058253 (Bankr. M.D. Fla. March 5, 2015) (Jennemann, J.)

Secured creditor was not entitled to injunctive relief compelling debtor to surrender the property and cease asserting affirmative defenses in the foreclosure action. Evidence presented did not support the argument that debtor failed to comply with his duties under section 521 regarding the statement of intentions. Debtor attempted to reaffirm the debt, but could not reach an agreement with the creditor. The creditor’s desire to “short-circuit” the debtor’s legitimate defenses was not grounds for the relief the creditor requested.

http://www.flmb.uscourts.gov/newsletter/volume5_issue1.pdf

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

4th DCA FL Holds UCC Article 9 – Not Recording Statute

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The Court ruled: Because section 702.01 does not apply as between HSBC and LaSalle Bank, HSBC’s earlier perfection of its security interest in a note arising from the Perez-FGMC transaction establishes its priority over LaSalle. We therefore reverse the final judgment and remand to the circuit court for the entry of a final judgment in favor of HSBC.  Priority  between two assignees of notes  of the same mortgage is determined by by  Article 9 of the Uniform Commercial Code and not the recording statute applicable to assignments of mortgage.

http://www.4dca.org/opinions/May%202015/05-06-15/4D13-3193.op.pdf

 

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

Phone: (727) 410-2705;   email: calh@gate.net

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

5th DCA Florida Improper Notice Not Defense to Foreclosure

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ADIEL GOREL AND FLCA TROPICAL HOLDINGS, LLC, v THE BANK OF NEW YORK MELLON

Failure to provide at least 30 days to cure the default  in  notice of default and right to cure did not prejudice the borrower, was not a valid defense to the foreclosure.

The Court ruled: Bank’s default letter set a cure date twenty-nine days later, not thirty or more as required. We agree with Bank that the defective notice did not prejudice Mr. Gorel, as he made no attempt to cure the default. Absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract. Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248-49 (Fla. 5th DCA 2012) (holding breach of condition precedent must be material, meaning one causing prejudice, to constitute defense to enforcement of contract).

http://www.5dca.org/Opinions/Opin2015/050415/5D13-3272.op.pdf

 

 

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

Phone: (727) 410-2705;   email: calh@gate.net

 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 (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: calh@gate.net

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: calh@gate.net

Bank of America v Caulkett

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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

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: calh@gate.net

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