Failure to advise insurer of foreclosure constituted increase in hazard allowing insurer to disallow…

A recent opinion from Tennessee that has generated some concern in the servicing industry. In US Bank, N.A. v. Tennessee Farmers Mutual Ins. Co., No. W2006-02536-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2007) the bank initiated foreclosure proceedings but did not notify the insurance company. Before the foreclosure process was complete,…

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Strict compliance with Tax Code excused in late redemption of sold taxes

Attached is In Re Application of County Treasurer (Hawkeye Investment v. Lanz) 1-06-3387 (Dec. 28, 2007) which is notable for the court’s refusal to strictly apply the Tax Code in an attempt by a homeowner to redeem after the period to redeem expired. It also holds that Section 22-45 of…

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Debt collector’s legal mistake not fatal because it was a bona fide error under…

In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469 (6th Cir., August 18, 2008) the Debtor brought an action against a debt collection law firm alleging violations of the FDCPA arising from the law firm’s use of a deceptive foreclosure notification. The debtor claimed that Defendants…

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Debtor’s pre-petition escrow obligations under the mortgage documents were claims for purposes of the…

The servicer in Campbell v. Countrywide Home Loans, Inc. 07-20499, — F.3d —-, (5th Cir. (Tex.), August 26, 2008 ) took the position that a debtor’s pre-petition escrow obligations under the mortgage documents were not claims for purposes of the Bankruptcy Code’s automatic stay. It therefore reasoned that it could…

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RESPA and TILA claim based on scheme by lender to direct inflated appraisals tossed…

The U.S. District Court for the Southern District of New York in Cedeno v. IndyMac Bancorp, Inc., 06 Civ. 6438 (S.D.N.Y., August 26, 2008) was asked to decide if a lenders failure to disclose to the plaintiff class that it selected appraisers and appraisal companies who performed faulty and defective…

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Mortgagor’s self-serving testimony that he did not receive TILA disclosures insufficient to rebut presumption…

In Chiles v. Ameriquest Mortg. Co. Slip Copy, 2008 WL 724612 (March 17, 2008 E.D.Pa. 2008.) the mortgagor contended that he was entitled to rescission under TILA due to the mortgagee’s failure provide the variable rate disclosures. The mortgagee produced evidence that Plaintiff acknowledged receipt of documents containing the variable…

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Getting around that tricky problem of proving that borrowers received two copies of the…

Two recent district court cases are noteworthy for their treatment of the proof required to defend a TILA claim seeking rescission for failure to provide the required number of copies of the right to cancel; one disposing of the claim on summary judgment and the other on a motion to…

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Lender fails in bringing Yamamoto motion by not establishing evidence that the borrower could…

In Williams v. Saxon Mortg. Co. 06-0799-WS-B (S.D.Ala., January 02, 2008) the lender unsuccessfully and prematurely invoked the Ninth Circuit’s ruling in _Yamamoto v. Bank of New York_, 329 F.3d 1167 (9th Cir.2003) to obtain judgment against a borrower. In moving for summary judgment on a TILA rescission claim, the…

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Plausible Deniability charge fails. Debt collector not required to independently determine if debtor filed…

Relying on Seventh Circuit precedent a Bankruptcy court in Ohio held that a debt collector did not violate the FDCPA in knowingly attempting to collect a discharged debt. In Gunter v. Kevin O’Brien and Associates, 2:05-ap-02257 (Bkrtcy. S.D.Ohio, June 17, 2008) the debt collectors claimed that it was unaware of…

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Despite a technical violation in the Notice of Right to Cancel it was sufficient…

The question presented in McMillian v. AMC Mortgage Services, Inc. 07-0773-WS-M (S.D.Ala., June 2008) was whether a disclosure of the three day right to cancel that left blank the final date to cancel violated TILA. The court concluded it did not because the notice form used clearly stated that the…

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