In Hunter v. Aurora Loan Services, LLC, Case No. 1D12-6071 (Fla. 1st DCA March 4, 2014), the First District Court of Appeals found that a lender must lay the necessary foundation under the business records exception to admit documentation from a prior servicer into evidence. Florida Statutes, § 90.803(6) states that the party seeking admission of hearsay under the business records exception must establish four things. First, that the record was made at or near the time of the event; second, that the record was made by or from information transmitted by a person with knowledge; third ...

Posted in: Florida, Mortgages

In Payne v. Progressive Financial Services, Inc., No. 13-10381 (5th Cir. 2014), the United States Court of Appeals for the Fifth Circuit reversed and remanded a Texas district court's dismissal of the plaintiff's suit for lack of subject-matter jurisdiction on the ground that the defendant's unaccepted offer of judgment rendered the plaintiff's claims moot. Plaintiff Nicole Payne alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), the Texas Debt Collection Practices Act, and the Texas Deceptive Trade Practices Act in her suit against Defendant Progressive ...

Posted in: FDCPA, Fifth Circuit
Hernandez v. Williams, Zinman & Parham, P.C., 2014 WL 977649 (D. Ariz. Mar. 13, 2014) Plaintiff Hernandez filed a complaint against Defendant Williams, Zinman & Parham, P.C. ("WZP"), a law firm, after WZP sent her a debt collection letter. In the letter, WZP sought to collect an auto-finance related debt on behalf of a third-party creditor. Prior to WZP's involvement, the third-party debt collector had attempted unsuccessfully to collect the money owed by Hernandez but had properly sent Hernandez a debt validation notice pursuant to 15 U.S.C. section 1692(g)(a). Thereafter ...
Posted in: Arizona, FDCPA
Fowler v. U.S. Bank, Nat. Ass'n, 2014 WL 850527 (S.D. Tex. Mar. 4, 2014) In this action, plaintiff alleged, inter alia, a cause of action under TILA § 1639b(c) (relating to the payment of a "yield spread premium") stemming from a residential mortgage loan transaction plaintiffs entered into with defendants in 2006. Section 1639b(c) was recently amended as part of the broader Dodd-Frank Mortgage Rule Amendments that became generally effective January 10, 2014 with the exception of certain provisions. The court held that the recently implemented loan originator compensation rule ...
Posted in: Dodd-Frank Act, Texas

In a case of first impression, the March 21, 2014 opinion U.S. Bank National Association, as Trustee for the GSAMP Trust 2006-NCI Mortgage Pass-Through Certificates, Series 2006-NCI v. Jose Busquets, Case No. 2D13-280, the Second District Court of Appeal upheld specific language in a residential mortgage foreclosure notice of default and intent to accelerate as compliant with the terms of the mortgage. This case represents the first appellate ruling in Florida addressing certain specific language in nearly ubiquitous "paragraph 22" notice of default and intent to accelerate ...

Posted in: Florida, Mortgages

In Bermuda Dunes Private Residents, etc. v. Bank of America, 5D12-4218, 2014 WL 885720 (Fla. Dist. Ct. App. Mar. 7, 2014) Florida's Fifth District Court of Appeal issued an important opinion concerning the so-called "safe-harbor" for past due condominium assessments created by Fla. Stat. § 718.116(b) for those who acquire title to condominiums from the foreclosure of a first mortgage. The facts of the case were as follows: Bank of America held a first mortgage on a condominium, and assigned the mortgage to Federal Home Loan Mortgage Corporation ("Freddie Mac"). Freddie Mac then ...

Posted in: Florida, Mortgages
Ali v. Wells Fargo Bank, N.A., CIV-13-876-D, 2014 WL 345243 (W.D. Okla. Jan. 24, 2014) This action is one of the first decisions issued regarding the forced-placed insurance provision pursuant to the new mortgage servicing regulations under the "Dodd-Frank Wall Street Reform and Consumer Protection Act" ("Dodd-Frank"). In Ali, Plaintiff brought suit against her mortgage lender, mortgage loan servicer, and an insurance company asserting multiple theories of liability related to lender-placed insurance ("LPI"), by which the lender prevented a lapse of coverage for the ...

Cataldi v. New York Community Bank (N.D. GA Feb. 3, 2013) (Loss Mitigation & Dual Tracking)

This action involves one of the first decisions issued pursuant to the new mortgage servicing regulations under the "Dodd-Frank Wall Street Reform Act and Consumer Protection Act." Plaintiff sought injunctive relief for violation of the Act, including a claim that the Defendant did not fairly offer and negotiate loss mitigation options and pursued "dual track" foreclosure. The facts established that the parties engaged in modification negotiations, that one or more modifications ...

The Eleventh Circuit Court of Appeals held in Faire Feaz v. Wells Fargo Bank, N.A., et al., No. 13-10230 (11th Cir. Feb. 10, 2014), that a lender may require a borrower who has a federally-insured mortgage to obtain more flood insurance than the amount required under federal law. Feaz had obtained a mortgage loan that was guaranteed by the Federal Housing Administration ("FHA"). Feaz's mortgage contained the following covenant, which is required by federal law for all FHA-guaranteed mortgages:

Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the ...

In Gruber v. Creditors' Protection Service, Inc., --- F.3d ---, 2014 WL 292086 (7th Cir. 2014), the Seventh Circuit Court of Appeals recently held that letters directing consumers to request verification rather than dispute the debt did not violate the FDCPA. The Seventh Circuit also held that the phrase "[w]e believe you want to pay your just debt" was mere puffery and did not violate the FDCPA. Plaintiffs filed lawsuits against separate defendants alleging that debt collection letters violated the FDCPA because they did not contain adequate notice required by section ...

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