In Young v. Wells Fargo, Case No. 12-1405 (1st Cir. May 21, 2013), the First Circuit Court of Appeals reversed a district court's dismissal of plaintiff Susan Young's breach of contract claim premised on Wells Fargo's alleged failure to comply with its obligations under the Trial Period Plan ("TPP"), a temporary loan modification period during which Young applied for a permanent loan modification. Young alleged that, after falling behind on her mortgage payments, she entered into a series of discussions with Wells Fargo in an attempt to negotiate a loan modification. Eventually ...
A judge in North Carolina recently dismissed an action brought by Guilford County's Register of Deeds against twenty-nine defendants, including Mortgage Electronic Registration Systems ("MERS"), for a lack of legal standing to bring their claims, in Guilford Cty, ex rel. Jeff L. Thigpen, Guilford Cty. Register of Deeds v. Lender Processing Services, Inc., 12 CVS 4531 (N.C. Gen. Ct. J. Super. Ct. Div. May. 29, 2013). The Register of Deeds of Guilford County filed the civil action on behalf of Guilford County making several state law claims against the defendants, including unfair ...
In You et al. v. JP Morgan Chase Bank, N.A. et al., No.S13Q0040(Ga. May 20, 2013), the Supreme Court of Georgia ruled that the holder of a security deed seeking to exercise a power of sale is not required to also hold the underlying promissory note. Further, the Court held that a party exercising its right to foreclose as a holder of the security deed does not need to identify the holder of the note in the statutorily-mandated notice to debtor. The borrowers in this case primarily argued that JP Morgan Chase Bank, N.A. did not have the right to exercise power of sale because it was not the holder of ...
In matter of first impression, the U.S. Court of Appeals for the Second Circuit recently held that section 1692g(a)(3) does not require a debtor to dispute a debt in writing. The court noted the circuit split on this issue and acknowledged that the Third Circuit has held that a notice requiring the debtor to dispute the debt in writing does not violate the FDCPA. See Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991). Conversely, the Ninth Circuit has held that it does. See Camacho v. Bridgeport Financial, Inc., 430 F.3d 1078 (9th Cir. 2005). In Hooks v. Forman, Holt, Eliades & Ravin, LLC
Judge Phyllis J. Hamilton of the Northern District of California, in Roberts v. Paypal, Inc., 2013 WL 2384242 (N.D. Cal. May 30, 2013), has added to the growing list of cases which hold that when a consumer supplies their cellular telephone number to a business, that consumer has supplied the necessary prior express consent to receive certain calls otherwise prohibited by the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227(b)(1). In the absence of prior express consent, or other extenuating circumstances, the TCPA prohibits, among other things, telephone calls to a ...
The California Court of Appeal for the Second District, Division 4, concluded in Akopyan v. Wells Fargo Home Mortgage, Inc., 155Cal.Rptr.3d245 (Cal.App. 4th2013) that the Dodd-Frank amendments to the National Bank Act ("NBA") and the Home Owners Loan Act ("HOLA") are prospective, and do not apply retroactively to prior agreements. Thus, applying the authoritative pre-Dodd-Frank preemption provisions of NBA and HOLA, the court held that the plaintiffs' respective contract claims against two national banks were preempted by federal law. In two separately filed, but ...
In Schneider v. Bank of Am. N.A., No. 2:11-CV-2953-LKK-EFB PS, 2013 WL 1281902 ( E.D. Cal. Mar. 26, 2013), the Eastern District of California dismissed a Plaintiff's claims under the Real Estate Settlement and Procedures Act ("RESPA"), holding that the 10-day QWR response deadline provided in the amended version of RESPA does not apply to QWRs submitted prior to the amendment's effective date. Plaintiff Christopher Schneider ("Plaintiff") sought a temporary restraining order enjoining Defendants Bank of America, N.A., BAC Home Loans Servicing, LP, and Quality Loan Service ...
In early 2010, the Florida Supreme Court amended Rule 1.110(b) of the Florida Rules of Civil Procedure to require that all residential foreclosure complaints be verified. The Rule requires a simple recitation:
Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.
Fla. R. Civ. P. 1.110. Despite this straightforward language, foreclosure defendants regularly rely on this rule to seek dismissal of a foreclosure action on a variety of theories. Nonetheless,Florida Appellate ...