Tag Archive for: 2nd Circuit

2nd Cir Confirms Defendant May Remove State Action to Fed Ct Before Being Served With Process

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The U.S. Court of Appeals for the Second Circuit held that a defendant may remove a state court action to federal court before being formally served with process.

http://media.ca1.uscourts.gov/pdf.opinions/13-2543P-01A.pdf

Under 28 U.S.C. § 1446(b)(1), a defendant may remove a pending action from state to federal court at two points in time – i.e., the shorter of either within 30 days after receiving the initial pleading or, alternatively, within 30 days after being served with a summons.  This forum shopping may be useful depending on your local circuit.

 

 

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

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