Where plaintiffs assert civil claims alleging violations of the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. §§ 1692-1692p, against mortgage lenders and their servicers, the defendants should assess the claims to determine whether they are subject to immediate dismissal. The first question that should be considered is whether the lender or servicer even qualifies as a “debt collector” pursuant to the FDCPA. If the answer to that question is “yes,” then the next question needing an answer is “what are the most effective available defenses?”
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Litigation
Second Circuit Withdraws Decision In Wake of TransUnion v. Ramirez and Holds That Plaintiffs Seeking To Form Class For Unrecorded Mortgage Discharges Lack Article III Standing
On November 17, 2021, on its review en banc of its prior decision, the United States Court of Appeals for the Second Circuit changed its course in Maddox v. The Bank Of New York Trust Company, N.A., docket number 19-1774, and held that the plaintiffs’ allegations “fail to support their Article III standing, and…
De-Acceleration Notices, Post-Engel
In the wake of the Court of Appeals’ landmark decision in Freedom Mortgage v. Engel, 2021 NY Slip Op 01090 (2021), the Second Department has subsequently followed the guidance in Engel in modifying a lender’s burden in rebutting statute of limitation challenges. In Engel, the Court of Appeals, reversing contrary Second Department holdings, held that a voluntary dismissal, by itself, constituted an affirmative act to revoke a lender’s acceleration of a mortgage loan, thus resetting the six-year statute of limitations to commence a mortgage foreclosure action. Now, the Second Department, in U.S. Bank v. Papanikolaw, __ A.D.3d __ (2d Dept. 2021), has held that the transmittal of a de-acceleration letter to the borrower, without more, similarly constitutes an affirmative act to revoke a lender’s acceleration.
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Supreme Court Declares CDC Eviction Moratorium Unconstitutional
Late Thursday evening, the Supreme Court of the United States issued an opinion to reinstate a court order blocking the Centers for Disease Control and Prevention’s (“CDC”) nationwide moratorium on residential evictions.
In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act, which, in part, imposed a 120-day eviction moratorium on properties…
Agency Director Ousted Immediately Following the Supreme Court’s Ruling that the FHFA’s Structure to be Unconstitutional
In a 7-2 decision, the Supreme Court of the United States ruled that the Federal Housing Finance Agency’s (“FHFA”) statutory structure, which protected its director from being removed from position “only for cause”, violated the Constitution’s separation of powers. Writing for the majority in Collins, et al. v. Yellen, et al., Nos. 19-422 and 19-563, Justice Alito found that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” The Supreme Court found this structure to violate the Constitution and reasoned that “the President must be able to remove not just officers who disobey his commands but also those he finds to be negligent and inefficient[.]” Hours after the Supreme Court rendered its ruling, President Biden removed FHFA’s Director, Mark Calabria.
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New Settlement Exhibits CFPB’s Continued Focus on Transparency for Short-Term Loans
The Consumer Financial Protection Bureau (“CFPB”) recently took aim at Driver Loan LLC (the “Company”), a company which frequently offers loans to drivers of ride share services, for the Company’s alleged deceptive practices.[1] In its complaint, the CFPB described that, in addition to giving loans to drivers of Uber and Lyft, the Company also took deposits from consumers to fund these driver loans.[2] The CFPB alleged that the Company and its CEO created a deceptive business model because: (i) the Company told consumers they could deposit funds with it in FDIC insured accounts, although the accounts were not FDIC insured; (ii) consumers who deposited funds with the Company were promised a 15% rate of return which they did not receive; and (iii) the short term loans offered to drivers of ride share companies had an APR of, at times, over 900% when they were advertised as having APRs of 440%.[3]
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Strict Foreclosure and Reforeclosure – Options in Foreclosing on Omitted Parties
“The absence of a necessary party in a foreclosure action leaves that party’s rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party.” 6820 Ridge Realty LLC v. Goldman, 263 A.D.2d 22, 26 (2d Dept. 1999).
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CPLR 3216 Dismissal Demands Compliance from All – Courts Included
As vaccination rates increase, holds on foreclosure actions expire, and the courts slowly return to addressing their largely frozen foreclosure dockets, we can expect some familiar concerns to reappear. One common concern is the threat of dismissal pursuant to CPLR 3216 for unreasonable neglect to proceed. Given the severe disruption to mortgage litigation caused by the COVID-19 pandemic, and its effects on the staffing and continuity of many firms whose main focus is residential foreclosures, it would not be surprising to see an uptick in CPLR 3216 notices and/or CPLR 3216 dismissals. As with any dismissal, this poses a serious threat to lien enforceability and could lead to complete loss of the lien if, by the time of dismissal, the foreclosure is beyond or approaching six years since acceleration. Fortunately, the threat posed to mortgage liens is mitigated somewhat by the strict requirements imposed by the statutory language of CPLR 3216 and controlling case law.Continue Reading CPLR 3216 Dismissal Demands Compliance from All – Courts Included
SCOTUS Issues Anticipated Decision in Facebook, Inc. v. Duguid And Unanimously Reverses Ninth Circuit, Holding Facebook’s Text Notification System Did Not Meet the TCPA’s Definition of An Autodialer Because It Did Not Use A Random Or Sequential Number Generator
On April 1, 2021, the Supreme Court of the United States issued its highly anticipated decision in the Facebook Inc. v. Duguid matter. In a unanimous decision delivered by Justice Sonia Sotomayor, the Supreme Court addressed a hotly debated issue of statutory construction regarding the Telephone Consumer Protection Act (“TCPA”), and reversed the Court of Appeals for the Ninth Circuit’s decision holding that Facebook, Inc. (“Facebook”) used a text-message notification system that met the TCPA’s definition of an “autodialer.” In short, the Court held that Facebook’s notification equipment did not meet the definition of an autodialer because it does not use a random or sequential number generator. The Court rejected Plaintiff Noah Duguid’s more broad interpretation of the statute, noting that if an autodialer were any device that had the capacity to dial random numbers, the TCPA would encompass any equipment that stores and dials telephone numbers, such as a modern smartphone.
Continue Reading SCOTUS Issues Anticipated Decision in Facebook, Inc. v. Duguid And Unanimously Reverses Ninth Circuit, Holding Facebook’s Text Notification System Did Not Meet the TCPA’s Definition of An Autodialer Because It Did Not Use A Random Or Sequential Number Generator
To Forgive or Not to Forgive a CPLR 3215(c) Violation in a Residential Mortgage Foreclosure
CPLR 3215(c) requires a plaintiff to take proceedings for entry of judgment within one year of default or face dismissal of the action as abandoned, except where sufficient cause is shown why the complaint should not be dismissed. The purpose of this provision is to prevent a plaintiff from taking advantage of a defendant’s default where the plaintiff has also been guilty of inaction. See Myers v. Slutsky, 139 A.D.3d 2d 709 (2d Dep’t 2012).
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