Foreclosure

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.

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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.

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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.

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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.

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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.

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Cuyahoga County, Ohio Judge Nancy Margaret Russo Requires Property Status Report

by Lee Cuilli Lee Cuilli

Cuyahoga County Common Pleas Judge Nancy Margaret Russo recently implemented a new policy requiring something called a Property Status Report Form (“PSRF”) be filed in every foreclosure assigned to her docket. The PSRF was prepared by Judge Russo and has been circulated to creditors’ foreclosure counsel. A copy of the same is included as an attachment to this Bulletin. Failure to file a completed PSRF within twenty (20) days of the filing of the foreclosure may result in a dismissal without prejudice.

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