Residential Real Estate Civil Procedure Consumer Protection

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High Court’s Encino Decision Means No Deference for CFPB View on RESPA, PHH Argues

On June 23, PHH filed a letter in the D.C. Circuit supplementing its appeal briefing in PHH Corp v. CFPB, No. 15-1177. For those of you who may have missed our prior posts on this, PHH is appealing a decision made by CFPB...more

Supreme Court of Texas; Recent Texas Home Equity Lending Decisions

On May 20, 2016, the Supreme Court of Texas (the "Court") issued its opinions in two cases involving Texas home equity lending – Garofolo v. Ocwen Loan Servicing and Wood v. HSBC Bank USA. The decisions are important for the...more

Consumer Financial Services Newsletter - May 2016

Debt Collection Letters Now Have a Safe Harbor In The Second Circuit - Avila v. Riexinger & Associates, LLC, 15-1548, --- F.3d ---- , 2016 WL 1104776 (2d Cir. March 22, 2016) - The U.S. Court of Appeals for the...more

New York Court Finds Borrower Must Strictly Comply with Notice Requirements to Hold Servicer Liable Under Regulation X

In an issue of first impression, the Supreme Court of New York refused to find a loan servicer violated Regulation X by initiating foreclosure when a borrower failed to strictly comply with the servicer’s instructions for...more

Problems With the CFPB’s Argument: An Analysis of the D.C. Circuit Oral Arguments on Statute of Limitations

What began as a challenge to the Consumer Financial Protection Bureau’s (“CFPB”) $109 million enforcement ruling against the mortgage company PHH Corp. (“PHH”) for alleged violations of the Real Estate Settlement Procedures...more

Michigan Consumer Protection Act Claims Do Not Require Proof of Intent to Deceive

Because the Michigan Consumer Protection Act (MCPA) was derivative of common law fraud, many have argued that all claims brought under the MCPA require a plaintiff to prove fraud-like elements in order to create liability...more

CFPB Field Hearing May Unveil New Rule on Arbitration Agreements

The CFPB is continuing its march towards a new rule governing the use of arbitration clauses in consumer lending contracts. On April 20, the Bureau announced its next step will be to conduct a field hearing in Albuquerque,...more

US Court of Appeals for the Ninth Circuit Upholds CFPB Director’s Authority to Sue

A divided US Court of Appeals for the Ninth Circuit ruled that the Director of the US Consumer Financial Protection Bureau had the authority and standing to bring a civil enforcement claim against a California attorney and...more

Do RESPA’s Loss Mitigation Procedures Really Apply After a Borrower Leaves a Residence?

The Consumer Financial Protection Bureau (CFPB)’s mortgage servicing rules, which took effect on January 10, 2014, contain a number of detailed loss mitigation procedures that servicers must follow after a payment default. ...more

Florida’s Third DCA Withdraws Opinion Impacting Mortgage Lenders

Last April, we provided an update on the Florida Third District Court of Appeal’s opinion in Deutsche Bank Trust Company Americas v. Beauvais. In that decision, the Third District held a dismissal without prejudice does not...more

Oral Arguments in PHH Case Signal Trouble for CFPB

The D.C. Circuit held oral arguments on April 12, 2016 in the case PHH Corp v. Consumer Financial Protection Bureau (CFPB), a case challenging the CFPB’s constitutionality as well as its interpretations of the Real Estate...more

Split Florida Court Withdraws Beauvais Opinion to Hold that Dismissal Without Prejudice of Foreclosure Action Does Not Bar Second...

After a rare en banc oral argument, the court withdrew its earlier opinion and released a new en banc decision holding that dismissal of a foreclosure action accelerating payment on one default does not time-bar a subsequent...more

Constitutionality of CFPB structure at issue in D.C. Circuit oral argument

The constitutionality of the CFPB’s structure was front and center at this past Tuesday’s oral argument in PHH Corporation et al. v. CFPB before the U.S. Court of Appeals for the D.C. Circuit. The case involves PHH’s appeal...more

Alaska Supreme Court Extends FDCPA Coverage to Trustees Involved in Non-Judicial Foreclosures

In Alaska Trustee, LLC and Stephen Routh v. Brett Ambridge and Josephine Ambridge, the Alaska Supreme Court considered whether Alaska Trustee and Routh were “debt collectors” subject to liability under the Federal Debt...more

California Supreme Court Weighs in on Standing

The California Supreme Court recently held that borrowers may have standing to challenge an assignment of a deed of trust in a wrongful foreclosure action where they assert that the assignment is void. The decision likely...more

Recent Eleventh Circuit Reversal Sparks Upward Trend in Estimated-Fee FDCPA Litigation

On December 3, 2015, the Eleventh Circuit issued an opinion that has carved a path for plaintiffs challenging their communications with loan servicers. The decision, Prescott v. Seterus, Inc., reversed a grant of summary...more

Loan Modification Differences Continue to Preclude Class Certification

Last month, the United States District Court for the Eastern District of California issued the latest in a string of decisions denying class certification in cases of alleged misconduct regarding residential mortgage loan...more

Jesinoski Update: TILA Rescission in a Post-Jesinoski World

A little over one year ago, the U.S. Supreme Court issued its ruling in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015), which resolved a circuit court spit regarding how a mortgage borrower may exercise the...more

Fannie And Freddie – Newly Implemented Independent Dispute Resolution

On February 2, 2016, Freddie Mac and Fannie Mae took another step towards helping sellers of loans manage risk more effectively, and in turn, strengthen the home lending system. Through concurrently released...more

CFPB Enforcement Update

This update analyzes the trends and patterns in the Consumer Financial Protection Bureau’s publicly available enforcement actions. Leveraging the analysis in our December 2014 White Paper, CFPB Enforcement by the Numbers...more

CFPB Director’s Divisive View of RESPA Limitations Period Central to Ongoing UDAAP Action

In the ongoing Integrity Advance enforcement action by the Consumer Financial Protection Bureau (“CFPB” or “Bureau”), the Office of Enforcement this month filed a brief arguing that its claims for alleged unfair, deceptive,...more

Consumer & Class Action Litigation Newsletter - January 2016

Plaintiff's Attempts to Turn Alleged "Clicking" and "Dead Air" into a TCPA Violation Rejected - Norman v. AllianceOne Receivables Mgmt., Inc., No. 15-1780, 2015 WL 9286778 (7th Cir. Dec. 22, 2015) - The Seventh...more

Can Lenders Foreclose While a Borrower’s Loan Modification Application is Under Review?

A recent decision by the California Court of Appeal held that the practice called “dual tracking” – when a lender forecloses on a property while the borrower’s application for a loan modification is under review – violates...more

The Moronta Decision in Massachusetts – Determining A Borrower’s Ability To Repay

A recent decision by the Massachusetts Court of Appeals highlights some of the challenges lenders may face when seeking the dismissal of allegations of unfair and deceptive lending practices in connection with a loan that...more

TILA Notice Requirement Not Retroactive: Ninth Circuit

The Ninth Circuit Court of Appeals recently ruled that a 2009 amendment to the Truth in Lending Act (TILA) does not apply retroactively. In a putative class action, Plaintiffs Mohammad and Rosa Talaie brought a claim...more

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