Sixth Circuit Resolved Split In Lower Courts When It Held That A Chapter 13…

The Sixth Circuit resolved a split in the Southern District of Ohio as to whether the proper arrearage amount in a Chapter 13 plan includes fees and costs permitted by the contract terms and applicable non-bankruptcy law even where the debt is undersecured. In Deutsche Bank National Ass’n v. Tucker,…

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When The Mortgagor Rescinded Under Tila But Lacked The Means To Tender The Loan…

In Avelo Mortg., LLC v. Jeffery, A-0765-08T1 (N.J. Super. Ct. App. Div. July 15, 2010) the Borrowers defended a foreclosure action by arguing that the failure of the lender to comply with their notice of rescission entitles them to a dismissal of the foreclosure complaint because the security interest is…

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Vaguely Worded Complaint Pleading A Violation Of The Fair Housing Act Meets The Higher…

The Seventh Circuit in Swanson v. Citibank, N.A., 10-1122 (7th Cir. July 2010) has allowed a vaguely worded complaint alleging violations of the Fair Housing Act to proceed despite a strong dissent from Judge Posner. In this case the Plaintiff applied for a home-equity loan with the Bank having been…

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A Servicer’s Written Offer To Discuss Foreclosure Alternatives With A Delinquent Borrower Is A…

In Gburek v. Litton Loan Servicing LP, 08-3776, (7th Cir. July 27, 2010) the servicer sent a delinquent borrower a letter offering to discuss ways she could avoid losing her home a foreclosure and asking for current financial information. A few days later, she received a letter from a firm…

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Mortgage Loan Servicer is a Real Party in Interest

The right of a mortgage loan servicer to sue has been the subject of much litigation and not only in the mortgage foreclosure area. In a recent Seventh Circuit opinion, CWCapital Asset Mgmt., LLC v. Chicago Properties, LLC, 09-3506 (7th Cir. June 29, 2010) a mortgage servicer sued the mortgagor…

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Claim For Collecting A Discharged Debt Cannot Be Pursued Outside The Bankruptcy Court

In Townsend v. M & T Mortg. Corp., 3:09CV1866 (M.D. Pa. June 23, 2010) the Plaintiffs sued in District Court for the Defendant’s attempt to collect a debt that had been previously discharged in Bankruptcy. The Plaintiffs asserted that recovery was available under §§ 524(a)(2) and 105(a) of the U.S.…

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Mortgagor Has No Right Or Standing To Enforce The HAMP Regulations Against A Servicer…

The Home Affordable Modification Program (HAMP) has lately been cited by disgruntled mortgagors who did not receive a loan modification to their liking. The latest of these cases has gone the way of almost all the rest: mortgagors are not third party beneficiaries under the program so they have no…

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Claim That Violations Were Apparent On The Face Of The Disclosures Means That Violations…

In an attempt to invoke the equitable tolling doctrine on a TILA damage claim against an assignee the plaintiff in Conder v. Home Sav. of Am., CV 077051AGCT (C.D. Cal. June 14, 2010) alleged that the disclosures provided to him before his loan closed violated TILA by failing to adequately…

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Borrower’s self serving statement not enough to rebut the presumption of delivery of the…

The Third Circuit has weighed in on the quantum of proof necessary to carry a TILA claim centering on a creditor’s failure to provide two copies of the notice of the right to cancel. In Jobe v. Argent Mortg. Co., LLC, 09-3677, 2010 WL 1255683 (3d Cir. Apr. 2, 2010)…

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Demanding too much in a loan modification agreement constitutes bad faith on the lender’s…

A state court judge in Suffolk County New York ruled in favor of the mortgagors in a mortgage foreclosure action, arguing that the mortgagee did not act in good faith and deliberately tried to ruin the couple’s chance of keeping their home. In Emigrant Mortgage Co. Inc. v. Corcione, No.…

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