Foreclosure

Written Notice to Debtors Involving Junior Liens and Substitute H.B. 133

by Kim Hammond Kim Hammond

Ohio Revised Code 1349.72 was enacted in 2019. The statute requires servicers of second mortgages and junior liens on residential real property to mail a written notice to a borrower’s address before collecting or attempting to collect the debt. As originally enacted, the statute was vague and left lenders, servicers, and attorneys with more questions than answers: Did a letter have to be sent before sending an acceleration letter? Did the letter have to be sent prior to returning a phone call from a delinquent borrower? No one wants to make a mistake and be subject to a violation. Read more

Heir Who Pays Utilities for Home Inherited from Father Is Not a Consumer Under the FDCPA

by Christian Niklas Christian Niklas

A basic premise of debt collection law is that a creditor cannot collect a debt from someone whom does not owe that debt. However, what if one were to flip that premise? What if a person whom didn’t owe a debt filed suit under the FDCPA against a law firm which previously filed an “in rem” foreclosure action and named that person as a party in the foreclosure action? Read more

FHA Foreclosure Prevention Act of 2019 Introduced

by Kim Hammond Kim Hammond

Congresswoman Maxine Waters (D-CA), Chairwoman of the House Committee on Financial Services, introduced The FHA Foreclosure Prevention Act of 2019 in an attempt to combat foreclosures for borrowers with FHA mortgages.  The Act would increase HUD oversight of FHA mortgage servicers in an effort to make sure every homeowner with an FHA mortgage is given fair opportunities to avoid foreclosure once they have defaulted. Read more

Mortgage foreclosure is debt collection under the FDCPA

by Dean Kanellis Dean Kanellis

FDCPALast June, the Sixth Circuit decided that a law firm could be liable, under the Fair Debt Collection Practices Act (“FDCPA”), for stating the wrong identity of the mortgage owner in a foreclosure complaint. In effect, the Sixth Circuit held that a pre-assignment foreclosure filing could violate the FDCPA. Earlier this month, the same court decided another case involving the application of the FDCPA to judicial foreclosure proceedings. This latest case strongly suggests that misstatements in a foreclosure complaint, and presumably other court filings, subject not only the plaintiff’s attorney to the FDCPA, but the loan servicer client as well.

Read more

Pre-assignment foreclosure filing may violate the Fair Debt Collection Practices Act

by Dean Kanellis Dean Kanellis

The Sixth Circuit Court of Appeals, in Wallace v. Washington Mutual, recently announced that filing a foreclosure complaint, before the note and mortgage have been transferred and assigned to the Plaintiff, may violate the Fair Debt Collection Practices Act (the “FDCPA”). More importantly, the court noted that the FDCPA may be violated even if state law permits the Plaintiff to cure a real-party in interest defect after the complaint is filed. Finally, although the defendant in this case was the law firm that represented the foreclosure plaintiff, depending on the circumstances, a servicer may be liable under the same theory that was announced by this court.

Read more

Homeowners Can Sue Over HAMP Denial

by Dean Kanellis Dean Kanellis

A homeowner who was denied a permanent loan modification can sue her lender for fraud and other state law claims. According to the Seventh Circuit Court of Appeals, while HAMP does not provide for a private right of action, it does not preempt valid state law claims that a borrower may otherwise be able to raise.

Read more

Cuyahoga County Requires Attorney Affidavits

by Dean Kanellis Dean Kanellis

I am writing to let you know that, as a consequence of the robo-signing allegations that have recently come to light, the Common Pleas Court for Cuyahoga County, Ohio is in the final stages of formulating new rules that will apply to all mortgage foreclosure cases.

Read more

Update Regarding Title Report Showdown in Cuyahoga County

by Lee Cuilli Lee Cuilli

Last November our office sent a bulletin advising of a dispute regarding title report endorsements that arose in Cuyahoga County. At that time, the Ohio Title Insurance Ratings Bureau announced a change to its policy regarding judicial title report forms and strictly forbid the use of title report endorsements previously used in Cuyahoga County.

Read more