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]

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

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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

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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]

SUE OR BE SUED CLAUSE

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The Ninth Circuit Court of Appeals  held that Federal National Mortgage Association’s (“Fannie Mae”) federal corporate charter confers federal question jurisdiction over claims brought by or against Fannie Mae.

The Ninth Circuit  held that under the rule announced in American National Red Cross v. S.G., 505 U.S. 247 (1992), Fannie Mae’s federal charter confers federal question jurisdiction over claims brought by or against Fannie Mae. The sue-and-be-sued clause in Fannie Mae’s charter authorizes Fannie Mae “to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U.S.C. §1723a(a).

 

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]

Background Artwork

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The Beautiful Abstracts used in Back ground  are for sale in cards. Contact: Cynthia Conte [[email protected]]
Prices are:
Unmounted Pictures
4×6       $1.00/each or 4 for $3.00
5×7       $1.50/each or 4 for $5.00
8×10     $6.00/each or 4 for $20.00
11×14   $9.00/each or 4 for $32.00
Mounted on Foam Board – Limited supply
4×6       $2.00/each or 4 for $6.00
5×7       $2.50/each or 4 for $8.00
8×10     $8.00/each or 4 for $32.00
Greeting Cards on Embossed Ivory Card Stock/with Envelopes
(Picture on heavy 10×7 card stock / folds to 5×7)
4×6       $2.50/each or 4 for $8.00

Vote NO on Greenlight Pinellas

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abstract orange 7c

Why you need to Vote NO!

Pinellas County would have the highest sales tax in Florida at 8%.

Does the route makes sense to you? From downtown Clearwater to downtown St. Petersburg… …and it will take you an hour to travel that route. There is no rail link to Tampa in Greenlight. Light rail is much more expensive than buses, and light rail is slower than express bus service, yet 90% of the Greenlight plan capital costs are for light rail.

Proponents of Greenlight Pinellas claim that a sales tax is “fairer” than a property tax. They argue that 1/3 of the sales tax is paid by non-residents. But the latest certified property rolls shows that 1/3 of residential property in Pinellas County is not homesteaded, so non-residents are already paying taxes to fund PSTA. Therefore, their argument is not valid.

The answer is that they want to greatly enlarge PSTA’s tax base from the 434,200 parcels of property currently being taxed to pay for PSTA to the more than 6.5 million people (all Pinellas County residents, plus visitors). They call it a “tax swap”, but PSTA’s revenue will increase from $32 million per year to $148 million per year. Any financial dictionary will tell you that this is not a “tax swap”, this is a revenue increase of over 300%! And the tax is permanent, we never get to vote on this again.

Do you want traffic to stop every 5 minutes on major arteries DURING PEAK HOURS? Waiting for nearly empty trains to go by? On Gandy Blvd, on Seminole Blvd, on Starkey Road, on Belcher Road, on Roosevelt Blvd, on Ulmerton and on a total of 41 rail/road intersections along the route. Let’s listen to a song named “No Tax For Tracks” that sums up all the Greenlight issues well…

First train will be in 10 years.