New York Appellate Court Reverses Foreclosure Judgement, Reaffirms Business Record Itself Must be Provided to Trigger Hearsay Exception

June 2, 2021 by Ashley R. Newman

In Deutsche Bank Nat'l Trust Co. v. Ezeji, 2021 N.Y. App. Div. LEXIS 3313 (2d Dep't, May 19, 2021), New York's Appellate Division, Second Department, reversed a judgment of foreclosure and sale, finding that although the mortgagee asserted it possessed the subject note before commencing the foreclosure and had complied with service of the statutory predicate notices pursuant to RPAPL 1304, it failed to introduce the actual business records evidencing these facts. The ruling is instructive for mortgagees and their servicers about the evidence they must provide in support of a prima facie case to foreclose. More ›

New York Courts Will Allow Mortgagors to Continue Submitting Hardship Declarations to Extend the Stay of Residential Foreclosures

May 26, 2021 by Mitra P. Singh

On May 24, 2021, Chief Administrative Judge Lawrence Marks issued Administrative Order 159/21 (AO/159/21) to extend the stay of residential foreclosure actions through August 31, 2021, for cases in which the mortgagor submits a Hardship Declaration (the Declaration). AO/159/21 clarifies the uncertainty surrounding the deadline for submitting the Declaration, which was not addressed in the previous administrative order. More ›

Proposed California Debt Collection Licensing Regulations Raise Scope Concerns

May 24, 2021 by Vaishali S. Rao, Sarah E. King

Last month, the Department of Financial Protection and Innovation (DFPI) published proposed regulations under the Debt Collection Licensing Act (DCLA). The regulations largely address procedural matters related to obtaining a license. However, the DFPI's proposed regulations also appear to implicitly address the scope of the license requirement, potentially expanding the category of licensees beyond what the statutory text contemplates. More ›

New York Court Finds an Action is Timely in Some Circumstances in CPLR 205(a) Decision

May 20, 2021 by Victor L. Matthews

The Appellate Division of the New York Supreme Court's First Department recently issued a decision addressing the calculation of the six-month timeframe permitted to file a new action, according to New York's Civil Practice Law & Rules (CPLR) 205(a) and following the termination of a prior action. The First Department concluded that an action is timely if it is brought within six months of the termination of time to appeal a denial of a motion to renew. More ›

House Passes Comprehensive Debt Collection Improvement Act That Would Expand Multiple Consumer Finance Laws

May 18, 2021 by Hinshaw & Culbertson LLP

Last week, the U.S. House of Representatives passed a bill, H.R. 2547, on a strict party-line vote. Titled "The Comprehensive Debt Collection Improvement Act, the bill would amend several consumer finance statutes for the first time in decades and impose new requirements and limitations on debt collectors, among others. Its fate now rests in the U.S. Senate. More ›

Second Circuit Rules Homeowners Established Article III Standing for Statutory Damages Claim

May 14, 2021 by Ronald H. Park, Schuyler B. Kraus

On May 10, 2021, ruling on an issue of first impression, the U.S. Court of Appeals for the Second Circuit in Maddox v. Bank of New York Mellon Trust affirmed denial of BNY Mellon's motion for judgment on the pleadings, finding that plaintiffs have Article III standing to sue over the alleged violation of legal interests created by New York State statute. The ruling has important implications for mortgage lenders and their servicers. More ›

Federal Court Rules That CDC Exceeded its Authority with Nationwide Eviction Moratorium

May 11, 2021 by Ashley R. Newman, Brian S. McGrath

On May 5, 2021, the U.S. District Court for the District of Columbia struck down the Centers for Disease Control and Prevention's nationwide eviction moratorium. According to the court, the CDC exceeded the scope of its authority under the Public Health Services Act, 42 U.S.C. § 264(a) (PHSA) when it enacted the "Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19" (CDC Order). The decision could have wide-reaching ramifications and set a precedent for challenges to various eviction and foreclosure moratoriums across the country. More ›

SCOTUS Narrows Autodialer Definition under the TCPA

April 5, 2021 by Lauren Campisi

We analyze in this client advisory the recent decision by a unanimous U.S. Supreme Court to narrow the definition of what constitutes an automatic telephone dialing system, or autodialer. Our analysis includes a take on the potential impacts of the decision, as well as the significance of a Democratic Party-controlled FCC. We note that the TCPA has not gone away and callers should continue to carefully consider how best to comply with its provisions to avoid further litigation and regulatory risk.

New York Court of Appeals Decision Clarifies RPAPL Notice Requirements, Affirms Heightened Standard for Borrowers

April 1, 2021 by Ronald H. Park, Brian S. McGrath, Schuyler B. Kraus

Last year, as we reported, the Second Circuit requested that the New York Court of Appeals rule on two certified questions concerning predicate notices in foreclosure actions. On March 30, 2021, the Court of Appeals issued its decision in Schiffman on the questions certified by the Second Circuit concerning New York Real Property Actions and Proceedings Law (RPAPL) §§ 1304 (90-day predicate notice) and 1306 (pre-foreclosure filing with the superintendent of banks). More ›

CFPB Signals Change by Rescinding Abusive Acts or Practices Policy, With Confirmation of Chopra Likely to be Delayed

March 22, 2021 by Vaishali S. Rao, Sarah E. King

On March 11, 2021, the Consumer Financial Protection Bureau (CFPB) announced rescission of its January 24, 2020 Statement of Policy Regarding Prohibition on Abusive Acts or Practices (Policy). In announcing its rescission, the Bureau indicated the Policy did not provide the intended clarity to regulated entities, and declared it inconsistent with the Dodd-Frank Act, including by limiting the Bureau's full scope of supervisory and enforcement authority. More ›

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