Early in the morning on July 28, 2016, in coordination with the Consumer Financial Protection Bureau's (the "Bureau") field hearing on debt collection being held the same day in Sacramento, California, the Bureau released a detailed outline of proposals under consideration for debt collection rulemaking. While the proposals only cover third-party debt collection issues, the Bureau indicated that they plan to address first-party collectors and creditors with similar proposals at a later date. We expect that many of the same principles outlined in the third-party proposals will ...
In Hernandez v. Williams, Zinman & Parham PC, No. 14-15672, -- F.3d --, 2016 WL 3913445 (9th Cir. July 20, 2016), the Ninth Circuit Court of Appeals held that each subsequent debt collector is required to send a § 1692g(a) validation notice within five days of its initial communication with a consumer, even if the validation notice has been previously provided to the debtor by another debt collector for the subject debt. The Ninth Circuit's ruling is the first published opinion by a federal court of appeals addressing this issue.[1]
The ruling interpreted section 1692g(a) of the Fair ...
Following the Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), it is clear that "Article III standing requires a concrete injury even in the context of a statutory violation," such that a plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id. at 1549. Yet, the Court did not go so far as to rule that "the risk of real harm cannot satisfy the requirement of concreteness," and instead recognized that "the violation of a procedural right granted by statute can ...
The Consumer Financial Protection Bureau (CFPB) released a special edition of its supervision report, honing in on mortgage servicers on June 22nd [1]. It blamed outdated technology and process breakdown for trends it has seen with violations of the CFPB's 2014 servicing rules. The primary areas of concern are communications and data related to loan modifications and servicing transfers.
Among the highlights of the report, CFPB examiners found that "information about loan modifications is late, incorrect, or deceptive, due to technological breakdowns or malfunctions ...
The Public Comment period closed yesterday on the National Credit Union Administration's (NCUA) proposed Rule amending its regulation governing federal credit union (FCU) property occupancy requirements. Presently, a FCU must plan for and eventually achieve full occupancy of any acquired commercial property. Under the proposed Rule, a FCU will be able to lease or sell excess capacity in its facilities, and it does not require that the FCU plan to occupy the entire space at some point in the future.
The NCUA reports that the comments it has received are largely supportive of the Rule ...
*Co-authored by Charles Davis [1]
On May 5, 2016, the Consumer Financial Protection Bureau ("CFPB") held its fourth field hearing on Arbitration and issued a proposed Rule that would prohibit the use of arbitration clauses that block consumers' participation in class actions in contracts for consumer financial products and services. The Rule would also require providers who use pre-dispute arbitration agreements to submit certain records relating to arbitral proceedings to the CFPB. The Rule is expected to take effect during the summer of 2017.
Upon issuance of the Final Rule ...
Learning the interplay between state rules of judicial procedure and federal bankruptcy law can be a daunting undertaking, but the pitfalls of failing to do so can be severe. A recent example of the importance of being mindful of these issues is Hewett v. Wells Fargo Bank, N.A. as Trustee, No. 2D15-1074, 2016 WL 3065014 (Fla. 2d DCA June 1, 2016) where the filing of a bankruptcy petition ultimately cost a foreclosure defendant his right to appeal a final judgment of foreclosure.
The Second DCA summarized the procedural posture of the case as follows:
"The circuit court's final judgment of ...
In a recent opinion, the Second District Court of Appeal held that the lower court was not required to uphold its three prior rulings denying relief from technical admissions when: (1) the record evidence was contrary to those admissions; and (2) the opposing party failed to show it would be prejudiced by the withdrawal of the admissions. Judge Crenshaw stated that the trial court abused its discretion in denying the defendant, Wells Fargo's, relief from technical admissions. The court reversed and remanded the case. Wells Fargo Bank Nat'l Ass'n v.Voorhees, Case No. 2D15-2055, 2016 ...
Congress voted this week to de-rail the Department of Labor's sweeping fiduciary-duty suite of rule-making, but doesn't have the votes to override the President's threatened veto.
The Rule (over a 1,000 pages in all) imposes a sweeping definition of who owes fiduciary duties to retirement investors in retail IRA, HSA, Roth, Coverdell and other "qualified money" situations and prohibits conflicted transactions (including differential compensation), unless they comply with a series of exceptions, carve-outs and exemptions. Industry groups say the compliance and paperwork ...
It's hornbook law that a later intentional breach of contract, alone, doesn't equal promissory fraud.
Holding it therefore cannot establish mail or wire fraud, the Second Circuit reversed the Government's $1.2 Billion FIRREA judgment against Countrywide, Bank of America and others, with instructions to dismiss the case. The case started as a qui tam action alleging that Countrywide's "high-speed swim lane" process delivered substandard mortgage loans to GSEs (Fannie, Freddie) during performance of master mortgage-loan sales agreements ("MLSAs") executed earlier. The ...