FYI: Fla App Ct (4th DCA) Holds "Force-Placed Insurance" Counterclaims in Foreclosure Were Time-Barred

The District Court of Appeal of the State of Florida, Fourth District, recently affirmed the trial court's dismissal of the borrowers' permissive counterclaims based on violations of the Florida Unfair Trade Insurance Practices Act ("FUTIPA") in connection with an alleged "forced-placed insurance scheme," as the allegations were barred by the applicable four year statute of limitations. 

 

The Court upheld the dismissal of the borrowers' remaining compulsory counterclaims without prejudice for lack of jurisdiction, as the compulsory counterclaims were not appealable until a final disposition of the original case was obtained on the merits.

 

A copy of the opinion is available at: Link to Opinion

 

In 2009, a mortgagee brought a foreclosure action against the borrowers. The borrowers filed their answer, affirmative defenses, and two counterclaims for breach of contract and defamation. 

 

The borrowers alleged that mortgagee's predecessor improperly purchased so-called "force-placed insurance" on the property and created an impound/escrow account with a deficit exceeding $15,000 (the price of the insurance). The borrowers alleged that mortgagee's predecessor then misapplied the borrowers' principal and interest payments to pay down the escrow account.

 

In their counterclaims, the borrowers alleged that after mortgagee acquired the loan, it exacerbated the problem by increasing the deficit in the impound/escrow account for the payment of property taxes that had already been paid, which supposedly created a "phantom default."

 

Subsequently, in 2014, the borrowers filed an amended answer which included nine counterclaims.   The counterclaims set forth additional facts regarding an alleged "Illegal Force-Placed Insurance Scheme," which the borrower claimed was "the unconscionable above-market premiums, undisclosed commissions, and illegal kickbacks in the nature of reinsurance premiums and subsidized administrative services."

 

Thereafter, the mortgagee moved to dismiss all of the borrowers' counterclaims with prejudice.  After a hearing, the trial court granted the motion to dismiss.  The borrowers appealed despite mortgagee's foreclosure claims remaining pending.

 

On appeal, the Fourth District sua sponte raised the issue of whether the trial court granting the borrowers' counterclaims constituted a final appealable order.  "An order is considered final if it 'disposes of the cause on its merits leaving no questions open for judicial determination except for the execution or enforcement of the decree if necessary.'" Nero v. Cont'l Country Club R.O., Inc., 979 So. 2d 263, 266 (Fla. 5th DCA 2007) (quoting Welch v. Resolution Tr. Corp., 590 So. 2d 1098, 1099 (Fla. 5th DCA 1991)). 

 

The Appellate Court determined that the borrowers' appeal from the order dismissing their counterclaims was not considered a "final order" because it did not dispose of the case on the merits, as mortgagee's foreclosure was still pending.

 

However, the Fourth District exercised jurisdiction based upon the trial court's dismissal of a counterclaim "adjudicate[ing] a distinct and severable cause of action." S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 100 (Fla. 1974); accord Agriesti v. Clevetrust Realty Inv'rs, 381 So. 2d 753, 753-54 (Fla. 4th DCA 1980). 

 

In determining whether the trial court's order was appealable, the Appellate Court looked to distinctions between permissive and compulsory counterclaims.  If the court found that the counterclaims were permissive, then the partial final judgment adjudicating the counterclaims were immediately appealable.  On the other hand, if the court found the dismissed counterclaims were compulsory, then the order dismissing the counterclaim was not appealable until a final disposition of the original case had been obtained on the merits.  Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So. 2d 507, 509 (Fla. 2d DCA 1993).

 

By definition, a permissive counterclaim does not arise out of the transaction or occurrence that is the subject matter of the main claim.  Fla. R. Civ. P. 1.170(b). 

 

Compulsory counterclaims bear a "logical relationship" to the plaintiff's claims in that they arise out of the "same aggregate of operative facts as the original claim." Londono v. Turkey Creek, Inc., 609 So. 2d 14, 20 (Fla. 1992) (quoting Neil v. S. Fla. Auto Painters, Inc., 397 So. 2d 1160, 1164 (Fla. 3d DCA 1981)).

 

Here, the Fourth District found that the borrowers' counterclaims for breach of contract, breach of implied covenant of good faith and fair dealing, unconscionability, violation of the FCRCPA, conspiracy to violate the FCRCPA, defamation per se, and violation of the FCCPA were compulsory because they each bore a logical relationship to the foreclosure.  Having found those counterclaims compulsory, the Appellate Court dismissed the appeal without prejudice for lack of jurisdiction because the trial court did not reach a disposition on the merits.

 

Turning to the borrowers' two counterclaims based upon an alleged violation of the FUITPA, the Appellate Court found these counterclaims permissive as they were based on allegations that mortgagee's predecessor participated in a force-placed insurance scheme. 

 

The Fourth District held that "[t]he 'purchase of insurance at above-market premiums, undisclosed commissions, and illegal kickbacks' constitutes separate and distinct activity that does not arise out of the 'same aggregate of operative facts' as the acts giving rise to the foreclosure"  (quoting Neil, 397 So. 2d at 1164).  As a result, the Appellate Court held that it had jurisdiction to reach the merits of the dismissal of those two counterclaims.

 

In assessing the merits of the borrowers' permissive counterclaims appeal, the Appellate Court affirmed the trial court's dismissal because the counterclaims were not timely filed.  The statute of limitations to bring an action under the FUITPA is four years.  § 95.11(3)(f), Fla. Stat. (2014). 

 

The facts giving rise to the borrowers' FUITPA claims occurred between 2005 and 2008, and the borrowers did not plead their FUITPA claims until 2014.  Thus, the Appellate Court held that the four-year statute of limitations barred the borrowers' FUITPA counterclaims as a matter of law, and affirmed the trial court's order dismissing those claims.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: Fla App Ct (5th DCA) Confirms Admissibility of Prior Servicer's Records, Substantial Compliance As to Notice of Default

The District Court of Appeal of the State of Florida, Fifth District, recently affirmed a final judgment of foreclosure in favor of a mortgagee, holding that:

 

a) the trial court did not abuse its discretion in determining that the bank's witness was competent to testify about and in admitting the prior servicer's loan history records into evidence;

b) the default letter was not defective because it substantially complied with paragraph 22 of the mortgage; and

c) the borrowers failed to present competent evidence that the loan was subject to Federal Housing Administration (FHA) regulations governing the servicing of federally insured loans.

 

A copy of the opinion is available at:  Link to Opinion

 

The borrowers obtained a loan for $167,200 in 2008.  They defaulted by failing to pay the installment due October 1, 2011 under the note.  The mortgagee sent them a default letter pursuant to paragraph 22 of the mortgage.  The borrowers failed to reinstate the loan and the mortgagee sued to foreclose the mortgage in January of 2013.

 

At trial, the mortgagee presented one witness, a veteran employee who "testified as to her familiarity with the manner in which [the servicer] creates, stores, and maintains its business records [as well as] her familiarity with [the servicer's] boarding process when it receives loan history data from a prior servicer of the loan and how that data is then converted and entered into [the servicer's] system."

 

The borrowers objected to the admission of the loan history into evidence on the basis that the mortgagee's witness lacked personal knowledge of any records created before the servicer's merger with the original lender. The trial court overruled the objection and admitted the loan history into evidence and entered a final judgment of foreclosure against the borrowers, from which they appealed.

 

On appeal, the borrowers argued that 1) the trial erred by admitting the loan payment history into evidence; and 2) the trial court should have granted their motion for involuntary dismissal because the bank failed to comply with the conditions precedent set for in paragraph 22 of the mortgage; and 3) the bank failed to comply with HUD regulations requiring a certain form notice of default and a face-to-face meeting or a reasonable effort to hold such meeting before the loan is three months in default.

 

Relying upon its earlier decision in Nationstar Mortgage, LLC v. Berdecia, which "discussed the evidentiary foundation necessary for the admissibility of mortgage documents under the business records hearsay exception, including records of a prior holder or servicer of the note … [and] held that 'the authenticating witness need not be 'the person who actually prepared the business records[,]' … but that 'the witness must be 'well enough acquainted with the activity to give the testimony[,]" the Appellate Court concluded that "the trial court did not abuse its discretion in determining that [the bank's] witness was competent to testify and in admitting the loan history records into evidence."

 

In addition, because the borrowers did not contest the default date, which occurred approximately two years after the mortgagee acquired the note, the loan history records from the prior note holder "were not critical to [the mortgagee] establishing [borrowers'] default and the monies owed under the note."

 

Turning the to the borrowers' argument that that default letter was defective, the Appellate Court first noted that they failed to preserve their argument that the letter failed to specify the default because they did not raise it in the trial court.

 

It then concluded that, even if they had preserved this argument, it, like the borrowers' other argument that the letter did not sufficiently explain how to cure the default, both lacked merit. This is because the law only requires substantial, not strict, compliance with conditions precedent, and the Court found the letter at issue was not "confusing or misleading."

 

The Appellate Court also rejected the borrowers' arguments based on non-compliance with the FHA regulations governing "the mortgage servicing responsibilities of lending institutions with regard to mortgages insured by HUD", because they failed to present competent evidence that the loan was subject to the FHA regulations.

 

Citing Florida Supreme Court precedent, the Appellate Court reasoned that "the burden of proving each element of an affirmative defense rests on the party that asserts the defense."  The Appellate Court noted that just because the note and mortgage in the case at bar indicated on their face that they were Fannie Mae/Freddie Mac uniform instruments did not mean that the mortgage at issue was federally insured or that the FHA regulations applied.

 

Because the borrowers bore the burden of proving that the FHA regulations applied to the mortgage at issue and were conditions precedent to foreclosure, and they failed to present competent evidence at trial to meet their burden, the final judgment of foreclosure was affirmed in its entirety.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: NC Fed Ct Rejects Defendant's TCPA Arguments as to "Revocation of Consent" and "ATDS"

The U.S. District Court for the Eastern District of North Carolina recently rejected a defendant's arguments that its contract with the plaintiff did not allow revocation of prior express consent under the federal Telephone Consumer Protection Act ("TCPA"), and that the defendant's telephone communication system was not an "automatic telephone dialing system" under the TCPA.

 

A copy of the opinion is available at:  Link to Opinion

In 2013, the plaintiff requested that the defendant install cable services at her home, and agreed to a services agreement the included a paragraph titled, "Robo-Calls," stating: "[Defendant] (or persons acting on our behalf) may use automated dialing systems or artificial or recorded voices to contact you or leave you messages if you do not answer."  The plaintiff also provided the defendant with her cell phone number.

 

In October, 2013, the defendant began calling the plaintiff's cell phone regarding an unpaid installation fee. The plaintiff disputed the debt, and during a live telephone conversation on January 14, 2014, the plaintiff claimed she instructed the defendant to cease all calls to her cell phone.

 

However, between January 29 and February 11, 2014, the plaintiff received on her cell phone six additional calls from the defendant, four of which she answered and two of which were voicemail messages. Approximately one month thereafter, on March 10, 2014, the plaintiff brought this action against the defendant.

 

The defendant called the plaintiff using its proprietary communication system, the Outbound Enterprise Interactive Voice Response ("IVR"). The IVR was integrated with the defendant's billing system, which contained information about customer accounts, including customers' telephone numbers.

 

Each day, the IVR reviewed the billing system to identify overdue accounts and call the telephone numbers associated with those accounts. If a call was not answered, the IVR left a voicemail message asking the customer to return the call. If a call was answered, the IVR played a message asking to speak with the account holder, and if the call recipient indicated that she was the account holder then the IVR played another message providing information about the overdue account.

 

The plaintiff alleged that the defendant committed six violations of 47 U.S.C. § 227(b) through calls placed to her cell phone between January 29 and February 11, 2014. 

 

As you may recall, the TCPA imposes liability as follows:

 

It shall be unlawful . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a paging service, cellular telephone service, . . . or any service for which the called party is charged for the call.

 

47 U.S.C. § 227(b)(1)(A)(iii).

 

The TCPA, at 47 U.S.C. § 227(b), allows calls made with "prior express consent of the called party."  Accordingly, prior express consent is an affirmative defense to liability under the TCPA.

 

With respect to revocation of prior express consent, the Federal Communications Commission ("FCC") recently issued a Declaratory Ruling and Order ("2015 FCC Ruling"), clarifying that under the TCPA "[c]onsumers have a right to revoke consent, using any reasonable method including orally or in writing. Consumers generally may revoke, for example, by way of a consumer-initiated call, directly in response to a call initiated or made by a caller."  In the Matter of Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7996 ¶ 64, 2015 WL 4387780 (2015).

 

The defendant telecommunications service company argued that the TCPA and the defendant's services agreement afforded the plaintiff no right to revoke her prior consent to receive autodialed telephone calls from the defendant.  The defendant also argued it did not use an automated telephone dialing system ("ATDS") as defined in the TCPA, and that the content of its calls fell outside the scope of the TCPA.

 

The defendant sought summary judgment regarding the issue of revocation of prior consent on two bases: first, that the TCPA does not provide the plaintiff the right to revoke her prior consent to autodialed calls; and second, that the parties' services agreement precludes such revocation.  The plaintiff countered that she revoked her prior consent through oral instructions to the defendant on January 14, 2015, as well as through 17 subsequent calls to the defendant.

 

The Fourth Circuit Court of Appeals had not yet ruled on the issue of revocation of consent under the TCPA.  Accordingly, the Court looked to the Third and Eleventh Circuit Courts of Appeals' rulings that consent is revocable under the TCPA.

 

The District Court here reasoned that in cases involving revocation of consent under the TCPA, a consumer complaining about unwanted telephone calls often has a contractual relationship with the company placing those calls.  When a consumer enters into a contract with a service provider, the contract may require that the consumer provide her telephone number and consent to receiving automated or prerecorded calls.  Provision of a cell phone number demonstrates express consent by the cell phone subscriber to be contacted at that number.

 

However, the Court held, such a contract does not prevent a consumer from revoking her prior express consent pursuant to the TCPA. The District Court noted that other courts have held that parties lack legal authority to contract around rights provided by the TCPA.

 

Here, the parties agreed that the plaintiff gave her prior express consent to receive calls from the defendant's IVR system.  The defendant also did not dispute that the plaintiff instructed the defendant to discontinue telephone calls regarding the disputed debt. However, the defendant disputed whether such instructions effected a valid revocation under the TCPA and the services agreement.

 

In light of the FCC Ruling and existing case precedent, the Court held that there was a genuine issue of material fact regarding whether the plaintiff's instructions to the defendant constituted a valid revocation. 

 

The District Court further held that the defendant's position that the TCPA affords no right to revoke consent was "ill-founded," because the defendant's motion for summary judgment was filed without benefit of the recent 2015 FCC Ruling, and because the defendant's argument relied upon a handful of non-binding district court opinions that themselves acknowledge other courts' recognition of revocation. The District Court further noted that the validity of these cases is called into question by the 2015 FCC Ruling.

 

The Court additionally held that the defendant's other argument, that its services agreement prevented the plaintiff's revocation under the TCPA, also lacked legal support.  The defendant attempted to distinguish its services agreement from courts' readings of other contracts on the basis that it contains a clause explicitly addressing autodialing.  The Court disagreed that the distinction was remarkable where consumers' provision of their telephone numbers represents the same express consent as their signature on a contract.

 

The District Court reasoned that the plain language of the services agreement is silent with respect to revocation of consent to autodialed and prerecorded voice calls.  Moreover, the defendant presented an unsigned, form copy of the agreement, which it uses for all of its customers, and the terms appear not to be negotiable; and use of an autodialing system is not an essential term of the agreement.

 

For all of these reasons, the Court held that the plaintiff had a valid right to revoke her prior express consent pursuant to the TCPA.

 

Regarding whether the defendant's IVR was an ATDS, the defendant contended that the "present capacity" of the IVR did not include the ability to use a random or sequential number generator.  The plaintiff disagreed, pointing to the IVR's present and potential ability to dial telephone numbers from a preprogrammed calling list without human intervention.  The Court agreed with the plaintiff, holding that the defendant's IVR was an ATDS as that term is used for purposes of the TCPA. See § 227(a)(1).

 

The District Court further noted that independent of the TCPA's prohibition on nonconsensual telephone calls made using an ATDS, the TCPA also imposes liability on parties that use an artificial or prerecorded voice to call a cell phone without prior consent. § 227(b)(1)(A)(iii).  Therefore, independent of the Court's determination regarding the defendant's use of an ATDS, the Court ruled that the plaintiff established a genuine issue of material fact that defendant's IVR satisfies § 227(b)(1)(A) through its use of prerecorded voice messages.

 

Finally, the Court held that the defendant's argument that the content of its call fell outside the scope of the TCPA was without merit.  The defendant argued that its calls related to an overdue account, and not to telemarketing.  The Court held that "calls concerning plaintiff's disputed debt were analogous to debt-collection calls, which fall within the scope of the TCPA."

 

The Court concluded by noting that it was considering entering summary judgment in the plaintiff's favor, and ordered Defendant to show why summary judgment should not be entered against it.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Illinois   |   Indiana   |   Maryland   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC

 

 

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FYI: 6th Cir Holds Residential Loan Underwriters Not Entitled to Overtime Pay Under FLSA

The U.S. Court of Appeals for the Sixth Circuit recently that residential mortgage loan underwriters are not entitled to overtime pay because their job duties related to general business operations of the bank, and they performed those duties exercising discretion and independent judgment.

 

A copy of the opinion is available at:  Link to Opinion

 

The plaintiffs, former bank employees, filed a class action suit against a bank, alleging that it failed to compensation them for overtime work in violation of the federal Fair Standards Labor Act ("FLSA"), 29 U.S.C. §§ 201-219.  The plaintiffs moved to conditionally certify a class.  The district court certified a smaller class, comprised of underwriters working only with residential loan products.

 

The district court ruled that these underwriters are administrative employees within the meaning of FLSA, 29 U.S.C. § 213(a)(1) and 29 C.F.R. § 541.200(a), and therefore exempt from overtime pay under 29 U.S.C. § 207(a)(1).

 

In reaching its decision, the district court found that the bank's residential mortgage loan underwriters worked in a "bona fide administrative capacity" under the FLSA.  The district court also held that the work of the underwriters was similar to the examples of administrative work that the United States Department of Labor ("DOL") provided in its regulations.     

 

On appeal, the Sixth Circuit affirmed the ruling of the district court.

 

The Court noted that its opinion was limited strictly to those working with residential loans.  The Court explained that in the residential loan process, in general and with the bank in this case, the underwriter's duties are to: (1) confirm that the information provided by the borrower in the application is correct; and (2) determine whether the borrower qualifies for the desired loan. 

 

The Sixth Circuit found that this second duty means the underwriter is essentially reviewing the recommendation of the underwriter software.  In performing this review, the Court held that the underwriter exercises considerable discretion.  The underwriter applies the guidelines of the bank, the lending criteria of the bank, and any pertinent bank regulations to determine whether the level of risk associated with the bank making the loan is acceptable.  The Court noted that the bank's guidelines spans thousands of pages and catalogue several factors that the underwriter must consider in reaching a decision.  Thus, the underwriter exercises considerable discretion in determining whether the borrower should receive the loan.

 

The Court noted that the text of the FLSA supports its finding that the underwriters are administrative employees and not entitled to overtime pay.  The FLSA requires employers to pay workers overtime for work performed in excess of forty hours per week.  The statute, however, exempts those workers "employed in a bona fide . . . administrative . . . capacity."  29 U.S.C. § 213(a)(1). 

 

The Sixth Circuit identified the three elements that determine whether an employee is working in a "bona fide administrative capacity":

 

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week . . . ;

(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and

(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.     

 

See 29 C.F.R. § 541.200(a).  A worker who satisfies all three elements is not entitled to receive overtime pay under the FLSA.

 

The plaintiffs asserted that they did not satisfy the second and third elements above. 

 

As to the second element, the Sixth Circuit looked to DOL regulations that define administrative employees as those performing "work directly related to assisting with the running or servicing of the business."  29 C.F.R. § 541.201(a).  Thus, the Court found that administrative employees perform work that is "ancillary to an employer's principal production activity."

 

In this case, the Sixth Circuit found that the work of the underwriter is ancillary to the principal production activity of the bank, which is to sell loans.  The underwriter assists in the running and servicing of the bank by deciding whether the bank should extend a loan to a borrower.  But the underwriter does not actually create these loans or sell them.  Therefore, the underwriter performs work that is ancillary in nature.

 

The Court compared the work of the underwriter to the work of an insurance adjuster, in that both jobs "provide a service that does not generate business for their employers, but is necessary for their employers to do business."

 

Accordingly, the Sixth Circuit ruled that the bank's underwriting employees fall within the administrative exemption.

 

As to the third element, whether underwriters exercise discretion and independent judgment with respect to matters of significance, the Court cited to DOL regulations asserting that both factors involve "authority to make an independent choice, free from immediate direction or supervision."  29 C.F.R. § 541.202(c).

 

The Sixth Circuit agreed with the district court that the bank's need for human underwriters suggests that they perform more than just mechanical calculations.  The Court also agreed with the district court that underwriters exercise discretion and independent judgment because they have authority to waive or deviate from the bank's guidelines.

 

The Court further held that the discretion and independent judgment involved matters of significance.  The Sixth Circuit noted that the standard is whether the work itself is substantially important. 

 

The plaintiffs argued that their work is not substantially important because they do not bear responsibility for financial loss and do not determine the risk that the bank is willing to take for any given loan. 

 

The Sixth Circuit disagreed, however, finding that although the plaintiffs do not determine the bank's overall risk guidelines, the decisions they make significantly impact the business.  Moreover, the Court found that the underwriters do determine the level of risk the bank is willing to accept for any particular loan, especially because the underwriter's decision can, in certain cases, bind the bank to the risk associated with that loan.

 

Accordingly, the Sixth Circuit ruled that the residential mortgage loan underwriters exercise discretion and independent judgment with respect to matters of significance.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Illinois   |   Indiana   |   Maryland   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC

 

 

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FYI: INVITATION: Annual Consumer Financial Services Conference (CCFL | Sept. 15-16, 2016 | Chicago, Illinois)

Please join us at the Annual Consumer Financial Services Conference organized by The Conference on Consumer Finance Law.  The Conference will be hosted at the Loyola University Chicago School of Law, on September 15-16, 2016.

 

WHEN:  Sept. 15-16, 2016

WHERE:  Loyola University Chicago School of Law | Chicago, Illinois

CLE:  12.0 CLE Credits to Be Provided, including 1.0 hr of Ethics

PRICE:  $495 before July 1, 2016

 

 

For more information, including as to registration, sponsorship, and hotel accommodations, please see:

 

https://www.ccflonline.org/conference/

 

Hope to see you there!

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Illinois   |   Indiana   |   Maryland   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

Our updates and webinar presentations are available on the internet, in searchable format, at:

 

Financial Services Law Updates

 

and

 

The Consumer Financial Services Blog™

 

and

 

Webinars

 

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California Finance Law Developments

 

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Insurance Recovery Services

 

 

FYI: CFPB Reopens Comment Period on "Periodic Statements in Bankruptcy" Mortgage Servicing Amendments

The Consumer Financial Protection Bureau (CFPB) recently reopened the comment period for its proposed amendments to the mortgage servicing related rules under RESPA and TILA that generally would require servicers to provide modified periodic statements to consumers who have filed for bankruptcy.

 

The full announcement is available at:  Link to Announcement

 

As you may recall, in December of 2014, the CFPB published for notice and comment a proposed rule that among other things would require mortgage servicers to provide certain modified periodic statements to consumers in bankruptcy (subject to specific exceptions), with different disclosures and notices required for different types of bankruptcies.  The CFPB included model forms, stating "[p]rior to finalizing any such sample forms, the Bureau will publish and seek comment on a report summarizing the methods and results of the consumer testing."

 

The original comment period for the proposed rule closed on March 16, 2015. The CFPB notes that it received over 100 comment letters, as well as "additional oral ex parte presentations and written ex parte comments on the proposed rule" after the close of the comment period," and "conducted ex parte outreach to servicers to gain insight into their mortgage processing systems and capabilities to implement proposed changes to the servicing of loans in bankruptcy."  The CFPB also conducted consumer testing as to the model forms.

 

The CFPB is now reopening the comment period until May 26, 2016.

 

More specifically, the CFPB seeks comment "on the report summarizing consumer testing of sample periodic statement forms for consumers in bankruptcy." 

 

The report to which the CFPB refers -- Fors Marsh Group, Testing of Bankruptcy Periodic Statement Forms for Mortgage Servicing (Feb. 2016) – is supposed to be available at:

 

http://www.consumerfinance.gov/reports

 

but at the time of this update, it was not yet available.

 

The CFPB states that it is "is not soliciting comment on other aspects of the proposed rule, including the merits of the proposal to require periodic statements for consumers in bankruptcy under certain circumstances."

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
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Email: rwutscher@MauriceWutscher.com

 

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