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

Bankruptcy Filings have Decreased 41% since 2011

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In 2011 there were 53503 filings in the Middle District of Florida, by 2015 there is projected to be only 31760.

2011  53503

2012 45898

2013 41100

2014 36305

1st Quarter of 2015 7940   67.5% were Chapter 7 and 31.5% were Chapter 13 with 20% of all filings being done pro se

Of the 1st Quarter of 2015 of  7940 Tampa Division accounted for  11356 of those filings done

A google search for Bankruptcy Attorney in Tampa Bay returns  192,000 hits.  We want you to chose wisely, and choose us.

Our Chapter 7 starts at $795.00

2013 Avvo Client Choice Award

A+ BBB rating again no paid advertisement with BBB to boost ratings Avvo 9.3 rating- no paid Avvo Advertising to boost account to 10.0- rating actually earned

 

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

 

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: calh@gate.net

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

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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: calh@gate.net

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: calh@gate.net