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Hinshaw Obtains Major Win for Passive Debt Buyer Before Massachusetts Supreme Judicial Court

Hinshaw secured a major victory last week before the Massachusetts Supreme Judicial Court on behalf of passive debt buyers. At issue was whether LVNV Funding, LLC was operating as an unlicensed debt collector in Massachusetts. Passive debt buyers are investors who purchase debt, and then hire debt collectors to collect the debt on their behalf. The passive debt buyer takes no action in furtherance of the collection of debt it owns, and never has any contact with any debtor. More ›

Despite Acceleration of Debt Through Prior Dismissed Foreclosure Action, Bankruptcy Petition Tolls Statute of Limitations on Subsequent Action

In Lubonty v. U.S. Bank National Association, a mortgagor sought to void a mortgage loan claiming that the six-year statute of limitations to foreclose had expired. The mortgagor had commenced multiple bankruptcy proceedings that trigged automatic stays and prevented foreclosure from proceeding for approximately four and a half years. New York law, CPLR § 204, extends the statute of limitations "[w]here the commencement of an action has been stayed by a court or by statutory prohibition," and the trial court held that the six-year statute of limitations was extended by the time period during which the foreclosure was stalled through successive bankruptcy petitions. More ›

Federal Prohibition of Marijuana Restricts Lenders Ability to Issue Loans to Borrowers Employed in Marijuana Industry

A Rhode Island mortgage lender recently rescinded approval of a loan application because the prospective borrower reported income from his employment in Rhode Island's medical marijuana industry. The lender was aware of the borrower's source of income at the time it issued a pre-approval letter, but ultimately denied the loan because the Federal Housing Authority (FHA) will not purchase or invest in a loan where the borrower is employed by, or receives compensation related to, the marijuana industry. FHA's Single Family Housing Policy Handbook provides that a lender may only consider a borrower's income if it is legally derived. Since marijuana remains illegal under federal law, any income derived from the cannabis industry cannot be considered as effective income for purposes of underwriting a loan. The denial of the loan came days after the United States Attorney General rescinded the Cole Memorandum, an internal justice department policy enacted during the Obama administration, which directed federal prosecutors to limit enforcement of federal marijuana laws in states that legalized and regulated cannabis. More ›

Seventh Circuit Rules in Favor of a Debt Collector Regarding Steps to be taken in Compliance with the FDCPA and FCRA when a Debtor Disputes a Debt

Hinshaw obtained a significant ruling in the Seventh Circuit in Walton, which involved claims under both the FDCPA and the FCRA. The Defendant sent Deborah Walton a dunning letter, which stated she owed delinquent debt on an AT&T account. But the letter listed an invalid account number—the first three digits of the account number were transposed with the middle three digits. Walton called Defendant to dispute that the debt belonged to her, she acknowledged that her name and address were correct, but falsely denied that the last four digits of her social security number matched those given by the representative. Walton also sent a letter to Defendant asserting that she did "not own [sic] AT&T any money under the account number listed above." Defendant checked the information it had received from AT&T and sent Walton a letter reporting that, based on a records review, it had verified Walton's name, address, social security number, and the amount of the debt. Defendant also reported Walton's debt as disputed with two credit reporting agencies. Walton then disputed the debt to the credit reporting agencies, which triggered an ACDV[1] report to Defendant about Walton's dispute. The notice simply stated that the debt did not belong to her. More ›

Second Circuit Resolves Uncertainty Surrounding "Reverse Avila" Claims

The Court of Appeals seems to have halted much uncertainty surrounding "reverse Avila" claims by unanimously affirming the New York federal court's decision in Taylor v. Financial Recovery Services, Inc., No. 17-1650, 2018 U.S. Dist. LEXIS ------- (2d Cir. March 29, 2018) (found here). In the wake of Avila v. Riexinger & Assocs., LLC, 817 F.3d 72 (2d Cir. 2016), savvy plaintiffs have argued that the failure to disclose that a debt is no longer accruing interest is false and misleading in violation of Section 1692e of the Fair Debt Collection Practices Act (FDCPA). The Second Circuit disagreed and held that "a collection notice that fails to disclose that interest and fees are not currently accruing on a debt is not misleading " when the letter correctly states a consumer's balance when the letter was issued.

Distinguishing Avila, the Second Circuit explained that the collection letter in Avila was misleading because a consumer could pay the full amount listed on the letter but such payment would not settle the debt. Under the facts of Avila, a consumer who paid the amount due on the collection letter would still be on the hook for an unpaid balance because interest and fees "accumulated after the notice was sent but before the balance was paid." In Taylor, the creditor instructed the collector not to accrue interest or fees on the underlying debt. Thus, because a consumer could have satisfied their debt by "making reasonably prompt payment" of the balance stated on the collection letter, it was not misleading notwithstanding the creditor's right to accrue post-placement interest on that same debt. The Second Circuit noted that the worst "harm" to plaintiffs in Taylor would be to pay sooner rather than later in order to avoid interest or fees accruing, but acceleration of payment "falls short of the obvious dangers facing consumers in Avila." More ›

Cover Letter from Loan Servicer May Unwittingly Change Terms of Forbearance Agreement

In Traut v. Quantum Servicing Corp., on the grounds that a cover letter accompanying a forbearance agreement may have altered the terms of that agreement, the Massachusetts federal court denied a loan servicer's motion for summary judgment in a lawsuit where the borrowers claimed breach of contract arising out of a loan modification agreement. The forbearance agreement required an additional down payment and six monthly installment payments. The cover letter to that agreement stated that the loan "will be modified," modification documents "will be generated" and some of the arrearage would be forgiven if six monthly payments were made. The servicer did not permanently modify the loan because two of the six payments on the forbearance agreement were late resulting in a breach. More ›

California Appellate Court Permits Debt Collection Suit against Mortgage Loan Servicer

Acknowledging a split of authority among the many federal courts reviewing whether a mortgage loan servicer falls within the FDCPA's definition of a "debt collector," one California appellate court has revived a putative class action dismissed at the trial court through which borrowers pursued fair debt claims under the Rosenthal Act. The decision issued in Davidson v. Seterus is significant because borrowers could not pursue these claims under the more restrictive FDCPA. More ›

HUD Regulation Requiring Face-to-Face Meeting Presents Compliance Challenge for Lenders Seeking Mortgage Foreclosure

In Dan-Harry v. PNC Bank, the Rhode Island federal court concluded that a mortgagor may bring a claim for damages and other remedies against a mortgagee on allegations of failure to conduct a pre-foreclosure face-to-face meeting required for breach of an FHA-insured mortgage. Dawari Dan-Harry obtained an FHA-insured mortgage loan to purchase property in Providence, Rhode Island, which included in Paragraph 9(d) the following provisions: "Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full, and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary." PNC Bank foreclosed on the mortgage and sold the property at auction to a third-party in January 2017. While continuing to occupy the property, Dan-Harry sued PNC for damages and to void the foreclosure sale on allegations that PNC failed to comply with HUD regulation 24 C.F.R. § 203.604(b), which requires a mortgagee to have a face-to-face meeting with the mortgagor or make a reasonable effort to arrange such a meeting before the mortgage becomes three months delinquent in payments. More ›

Distilling the DC Circuit's TCPA Decision in ACA International v. FCC

In a case we have been tracking closely, a unanimous panel of the D.C. Court of Appeals set aside two key determinations of the FCC's interpretations of the Telephone Consumer Protection Act. In ACA International, et al. v. FCC, Judge Sri Srinivasan found that the FCC's "explanation of what qualifies" as an automated telephone dialer service (ATDS) and its one-call safe harbor for calling a phone number that has been reassigned to a non-consenting person was arbitrary and capricious. However, the Court sustained the FCC's rulings on revocation of consent "through any reasonable means clearly expressing a desire to receive no further messages" and the scope of the exemption for "time-sensitive healthcare calls." More ›

Recent Illinois Court Decision Illustrates Pitfalls of Multiple Filings of a Mortgage Foreclosure Action

While Illinois mortgagees have the option of recouping delinquent mortgage loan debt through different types of lawsuits, the pursuit of this option can violate Illinois' prohibition on refiling the same cause of action. A recent decision illustrates the pitfalls of a mortgagee's numerous lawsuits filed on the same default and debt in reliance upon Illinois' savings statute. More ›

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