Consumer Finance Litigation

On April 29, 2020, the Consumer Financial Protection Bureau (CFPB) issued an interpretive rule allowing certain consumers to modify to waive certain waiting periods required under the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). Per the CFPB, this interpretive rule is intended to ease the way for consumers with urgent financial needs to obtain access to mortgage credit more quickly during the COVID-19 pandemic.

Ordinarily, the TILA-RESPA Integrated Disclosure (TRID) Rule imposes certain disclosure requirements and waiting periods ...

On April 22, 2020, the Federal Housing Finance Agency announced that it is allowing Fannie Mae and Freddie Mac (the “GSEs”) to purchase loans that go into forbearance within the first month after closing. Previously, the GSEs were not permitted to purchase loans that were in forbearance. According to the FHFA, this change, prompted by the rising number of forbearances due to the COVID-19 pandemic, is geared toward the purpose of keeping the mortgage market “working for current and future homeowners during these challenging times.”

Guide bulletins issued by the GSEs ...

On April 2, 2020, in light of the COVID-19 pandemic, Governor Ron DeSantis of Florida entered Executive Order 20-94, requiring a 45-day suspension of “any statute providing for a mortgage foreclosure cause of action under Florida law.” The Executive Order also requires a 45-day suspension of statutes providing for a cause of action for residential eviction.

Presumably, the Governor ordered the suspension of any statute providing for foreclosure and eviction causes of action in light of § 252.36(5)(a), Florida Statutes, which allows the Governor to suspend any “regulatory ...

Among a myriad of disruptions to the economy caused by the COVID-19 pandemic, mortgage lenders and servicers are working to adapt to new moratoriums and regulations affecting residential mortgage loans.

First, pursuant to a March 18, 2020 order by the Federal Housing Finance Agency and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) signed into law by President Trump, servicers of federally-backed mortgage loans are prohibited from initiating any judicial or non-judicial foreclosure process, moving for the entry of a foreclosure judgment or an order ...

In an opinion issued today, Florida's Fifth District Court of Appeal joined other Florida appellate courts in holding that the five-year statute of limitations to bring an action to enforce a promissory note and/or mortgage does not prohibit a lender from collecting amounts more than five years past due.

In Grant v. Citizens Bank, N.A., slip op., Case No. 5D17-726 (Fla. 5th DCA Dec. 26, 2018), the Fifth District, sitting en banc, examined whether the trial judge erred in awarding to a foreclosing lender interest that had accrued more than five years prior to acceleration and the filing ...

Today, Florida's Fifth DCA and Second DCA issued two seminal opinions; Klebanoff v. Bank of N.Y. Mellon, and Huntington National Bank v. Watters, which clarify the cloud of uncertainty that had engulfed the statute of limitations issue in Florida and provide a strong basis for lenders that are filing subsequent foreclosures of the same loan based on the same initial default date.

In Klebanoff, the Bank filed its foreclosure action in 2014 alleging that the Klebanoff's defaulted for failing to make the March 1, 2009 payment and all subsequent payments due thereafter. Klebanoff v. Bank ...

In an order issued today, Judge Dalton of the Middle District of Florida held that in a non-bankruptcy context, allegations that collection of a mortgage debt is barred by the statute of limitations do not form a "plausible basis" for claims under the Fair Debt Collection Practices Act, the Florida Consumer Collection Practices Act, or the Declaratory Judgment Act.

In Garrison v. Caliber Home Loans, Inc., Case No. 6:16-cv-978-Orl-37DCI (Order, Jan. 10, 2017), the plaintiff brought counts under five consumer protection laws, including the FDCPA and FCCPA, as well as for a ...

With its recently-issued opinion in Elsman v. HSBC Bank USA as Trustee for MLMI 2006-AF1, slip op. 5D14-1753, 41 Fla. L. Weekly D57b, 2015 WL 9491875 (Dec. 31, 2015), the Fifth DCA has added to a growing body of case law regarding what is required to evidence a plaintiff's standing to foreclose a mortgage. In Elsman, the plaintiff asserted standing as holder of the promissory note at issue but failed to attach an endorsed copy of the promissory note at issue to its complaint or to present any alternate evidence of its status as holder. Because the plaintiff, HSBC Bank USA, as Trustee for MLMI ...

In Russell v. Aurora Loan Services, LLC, 40 Fla. L. Weekly D967a (Fla. 2d DCA Apr. 24, 2015), Florida's Second District Court of Appeal added to the emerging line of case law regarding the proof required to establish standing in mortgage foreclosure actions. There, the Second DCA held that substituted party-plaintiff, Nationstar Mortgage, LLC, failed to establish at trial that either Nationstar or the original plaintiff, Aurora Loan Services, LLC, had standing as the servicer acting on behalf of the real party in interest to foreclose against borrower William Russell. As a result ...