Updates - Page 39 of 44 - Noonan & Lieberman

Eleventh Circuit holds that foreclosure proceedings are not debt collection activities under the FDCPA

In a recent unpublished opinion by the United States Court of Appeals for the Eleventh Circuit, Warren vs. Countrywide Home Loans, No. 08-16171 (11th Cir., August 14, 2009) the Court chose to follow the reasoning used by many district courts (citations omitted) that ”an enforcer of a security interest, such…

Even if the bona fide error defense were available to mistakes of law under…

In January 2006 an owner of defaulted debt sent a letter to each class member announcing it just purchased the debt and identified the debt collector it retained. The letter contained all of the required disclosures but was accompanied by a second document titled Privacy Notice of Financial Information. The…

Kansas Supreme Court finds that MERS has no tangible interest in note and mortgage…

In Landmark Nat. Bank v. Kesler, No. 98,489 (Kan., August 28, 2009) the senior mortgagee filed a foreclosure action but neglected to notice MERS or Sovereign, who held the junior mortgage. After the trial court entered judgment for the senior mortgagee, the property was sold at sheriff’s sale. Sovereign and…

The Eighth Circuit refused to apply a Minnesota statute that invalidates a mortgage unless…

On July 17 the U.S. Court of Appeals for the Eighth Circuit refused to apply a Minnesota statute that invalidates a mortgage unless both spouses sign the loan documents, saying the case qualifies for an exception under Minnesota case law. In Karnitz v. Wells Fargo Bank NA, No. 08-21 (8th…

The risk of negative amortization was not a material disclosure triggering the right to…

In Jordan v. Paul Financial, LLC, NO. C 07-04496 SI (N.D.Cal., July 01, 2009) the plaintiff sued for rescission under TILA contending that the creditor’s alleged failure to adequately disclose the risk of negative amortization is a material disclosure for purposes of the extended three-year statute of limitations for rescission.…

Consumer has no TILA claim if her signature was forged

In Anthony v. Anthony, NO. 08-21520-CIV (S.D.Fla., July 27, 2009) the evidence that the loan documents are forgeries was undisputed. It was also undisputed that the Plaintiff was not present at a closing and did not execute the forged documents. The question the court had to resolve then was whether…

The existence of only one copy of the Notice of the Right to Cancel…

The Plaintiff in Burgueno v. GMAC Bank, NO. CV-08-1642-PHX-ROS (D.Ariz., July 23, 2009) alleged that he did not receive a proper Notice of Right to Rescind. As is customary at closing the Plaintiff signed an acknowledgment that he had received two copies of the notice. However, he also asserted there…

Technical Flaw in Notice to Rescind Did Not Support Longer Period for Rescission

In Melfi v. WMC Mortgage Corp., No. 09-1066, (1st Cir., June 11, 2009) the U.S. Court of Appeals for the First Circuit held that a technical violation of TILA and Regulation Z did not trigger the longer three-year rescission period becuase the documents gave reasonable notice to the borrower that…

Seventh Circuit holds that the Rooker-Feldman doctrine does not bar claim for injury caused…

The Court of Appeals for the Seventh Circuit reversed a district court’s finding that a lender’s loan fraud recovery action was barred by the _Rooker-Feldman_ doctrine and claim preclusion due to prior credit bids entered in the foreclosures of the loans. In Freedom Mortgage Corp. v. Burnham Mortgage, Inc., No.…

Assignee may have to answer for an originator’s RESPA violations

In a question that has vexed litigants and the courts for years a district court in New Jersey, in a thinly-reasoned opinion, held that assignee is liable for the assignor’s RESPA violations. In Carmen v. Metrocities Mortg. Corp., Civ. No. 08-2729 (D.N.J., May 18, 2009), the court found that an…