In Green v. Specialized Loan Servicing, LLC, 17-15681, the Eleventh Circuit Court of Appeals rejected a consumers contention that his monthly mortgage statement should only seek his last five years of mortgage installments due to Florida’s five-year statute of limitations for mortgage foreclosure. The consumer sued his mortgage servicer under the federal Fair Debt Collection Practices Act (“FDCPA”) 15 USC 1692 alleging his mortgage statements were not only an attempt to collect a debt but also were deceptive because they sought debt that the consumer alleged was ...
On May 22, 2018, the U.S. House of Representatives passed S. 2155, titled The Economic Growth Regulatory Relief and Consumer Protection Act ("Act"). This was the penultimate legislative hurdle for the Act, which now only requires the President's signature to become law. The President is expected to sign the Act into law in the very near future.
The Act has a number of important regulatory relief provisions governing the lending and banking industry including:
- Reduces the level of regulatory oversight by the Financial Stability Oversight Counsel (FSOC) for banks with between ...
On March 1, 2016, the Eleventh Circuit Court of Appeal held that the assignee of a loan cannot be liable for the failure to provide a payoff statement as required by the Truth in Lending Act, 15 USC 1639g. The case is Evanto v. Federal National Mortgage Association, No. 15-11450 and it has wide reaching implications for all legal post-origination TILA compliance issues. The case revolves around what many consumer advocates argue is a loophole in the TILA statute. The TILA statue requires creditors and assignees alike to provide a payoff statement within seven days of the borrower's ...
In Lankhorst v. Independent Sav. Plan Co., No. 14-11449, 2015 WL 3440288 (11th Cir., May 29, 2015), the Eleventh Circuit Court of Appeals held that the credit agreement the Plaintiff's entered into did not convey the requisite security interest in the Plaintiffs' primary residence in order to trigger the TILA protections on which the Plaintiffs relied. Therefore, the district court did not err in granting summary judgment in favor of the defendants. The Plaintiffs agreed to purchasing a water treatment system and having it installed in their home. However, the purchase and ...
The United States Supreme Court recently held in Jesinoski v. Countrywide Home Loans, Inc., et al., 574 U.S. -- (2015), that the Truth in Lending Act's ("TILA") rescission provision, 15 U.S.C. § 1635, does not require a borrower to file a lawsuit within the three-year time period under 15 U.S.C. § 1635(f) in order to rescind. The Jesinoski borrowers had refinanced their mortgage in 2007. Exactly three years later, the borrowers sent their lender and loan servicer a letter purporting to rescind the transaction. The lender and loan servicer refused to acknowledge the rescission. One ...
In Alaimo v. HSBC Mortgage Services, Inc., 2014 WL 930787 (S.D. Fla. March 10, 2014) the Honorable Robert N. Scola extended his previous decision in Signori v. Fed. Nat'l Mortg. Assoc., 934 F.Supp.2d 1364, 1367 (S.D.Fla. 2013) holding that an assignee of a mortgage loan cannot be held liable for its servicer's violation of section 1641(f)(2) of the Truth in Lending Act ("TILA") or section 226.36(c)(1)(iii) or Regulation Z. Section 1641(f)(2) requires a servicer to identify and provide certain contact information for the owner or master servicer of a borrower's loan upon written ...
In Zevon v. Department Stores Nat'l Bank, No. 12 Civ 7799(PAC), 2013 WL 5903024 (S.D.N.Y. Nov. 4, 2013), the U.S. District Court for the Southern District of New York recently held that the increased statutory cap on class action damages under the Truth-in-Lending Act ("TILA") became effective January 21, 2013, rather than upon the Dodd-Frank's enactment. Plaintiff Marcy Zevon filed suit against Department Stores National Bank ("DSNB") alleging DSNB violated TILA and Regulation Z by failing to include the full text of Regulation Z's model billing rights notice in monthly ...
On July 10, 2013, the CFPB issued mortgage rules under Regulation Z and Regulation X pursuant to its authority under the Dodd-Frank Act. The CFPB further amended the mortgage rules on September 15, 2013 and October 1, 2013. The result is a super regulation which keeps the original framework of Regulations X and Z, but adds entirely new provisions addressing eight major topics. In this article, David A. Elliott, Nicholas S. Agnello and Seth I. Muse discuss the new regulations and the possible effect on mortgage litigation. You can find a copy of the article by clicking here. For more ...
In Hartman v. Smith, --- F.3d ---, 2013 WL 4407058 (8th Cir. 2013), the Court of Appeals for the Eight Circuit extended its prior holding and held that a borrower must file suit before foreclosure to exercise his or her right of rescission under the TILA. Plaintiffs RogerHartman, Mavis Hartman, and Maul Lee Hartman filed suit against defendants alleging violations of the TILA and state law. The district court granted summary judgment in favor of defendants on plaintiffs' TILA rescission claim and various state law claims, and the jury found for defendants on the remaining claims ...
In Reed v. Chase Home Finance, LLC, --- F.3d ----, 2013 WL 3868079 (11th Cir. 2013), the Eleventh Circuit Court of Appeals evaluated one of the more recent additions to the Truth in Lending Act ("TILA"), 15 U.S.C. 1641(g), which requires a loan servicer to provide written notice of an assignment to the obligor. In Reed, the Plaintiff's claimed that Chase violated 1641(g) by failing to inform them that Chase had been assigned an interest in the Plaintiff's mortgage by virtue of an assignment of mortgage. However, the Eleventh Circuit affirmed the summary judgment entered in favor of ...
The United States Bankruptcy Panel of the First Circuit held that the Home Owner's Loan Act ("HOLA"), 12 U.S.C. § 1461 et seq. preempted certain Massachusetts statutory claims in the recent case Frykberg v. JPMorgan Chase Bank, N.A. (In re Frykberg), No. 12-050, 2013 WL 1704701 (B.A.P. 1st Cir. Apr. 18, 2013). There, the debtor filed an adversary complaint against JP Morgan Chase Bank, N.A. ("Chase") alleging claims under the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws ch. 140D, § 8, and the Massachusetts Predatory Home Loan Practices Act, Mass. Gen. Laws ...
In Riddle v. Bank of America Corp., et al., 2013 WL 1482668 (E.D. Pa. Apr. 11, 2013), the federal district court for the Eastern District of Pennsylvania held plaintiffs' allegation that the defendants actively concealed a reinsurance kickback scheme was sufficient to equitably toll the running of RESPA's one-year statute of limitations and, as such, that plaintiffs' RESPA claim could survive dismissal.
The plaintiffs filed a putative RESPA class action suit against Bank of America and various mortgage insurers claiming that the defendants engaged in an illegal scheme whereby ...
In Prevratil v. Deutsche Bank Nat'l Trust Co., 38 Fla. L. Weekly D569 (Fla. 2d DCA March 8, 2013), the Florida Second District Court of Appeal continue the trend of Florida Appellate Court reversals of over-zealous trial court judges reading more into the requirement in Rule 1.110(b) that foreclosure complaints be verified. Previously, Florida's appellate courts have held that the verification of a foreclosure complaint need not comply with Fla. Stat. 92.525 (requiring attestation that facts "true" without qualification as to the signors knowledge and belief), see Trucap ...
On October 5, 2012, the U.S. District Court for the Eastern District of Tennessee analyzed the interplay between the debt collection industry and certain provisions of the Truth-in-Lending Act ("TILA") that require "creditors" to send monthly account statements to borrowers. In King v. AllianceOne Receivables Mgmt., Inc., No. 2:12-CV-314, 2012 WL 4758220, at 2-3 (E.D. Tenn. Oct. 5, 2012), the defendant debt collector sent a collection letter on behalf of the creditor. The letter stated:
As of the date of this letter, you owe $888.45. Your account balance may be periodically ...