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…
Read More »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…
Read More »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…
Read More »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…
Read More »In response to a servicer’s proof of claim representing pre-petition arrearages the debtor in Saylor v. Select Portfolio Servicing, Inc., 3:07-cv-00229 (M.D.Ala., June 9 2008) filed a Qualified Written Request under § 2605 of RESPA to review the charges the servicer assessed under the mortgage. Some of the charges predated…
Read More »The Third Circuit in In Re: Mansaray-Ruffin, 05-4790 (3rd Cir., June 24, 2008) affirmed a Bankruptcy court’s rejection of a debtor’s attempt to invalidate a secured mortgage lien by characterizing the lien as invalid in her confirmed plan. The debtor argued that the claim was successfully invalidated because she treated…
Read More »The debtors contended in In re Rodriguez, 07-24687 (Bkrtcy.D.N.J., July 22, 2008) that Countrywide’s post-petition escrow analysis of the mortgage account constituted an unlawful post-petition collection of a pre-petition obligation resulting in repetitive and excessive payments by the Debtor of significantly more than what would have been paid but for…
Read More »In this Chapter 13 case, In re Kemp, No. 08-18700 (Bkrtcy.D.N.J., July 17, 2008), the court concluded the debtor could reclassify his secured claim arising from a second mortgage on his residence as an unsecured claim, by stripping creditor’s lien based on residence’s value, without filing an adversary proceeding. The…
Read More »In Fritz v. GMAC Mortgage Corp., 07-C-1019 (E.D.Wis., July 17, 2008) the mortgagee, GMAC, obtained a judgment of foreclosure in an earlier state court proceeding brought in the name of MERS. In response to a subsequent federal TILA suit, GMAC argued that the _Rooker-Feldman_ doctrine precluded federal jurisdiction. A Wisconsin…
Read More »In Oppong v. First Union Mortg. Corp., 02-2149 (E.D. Pa., July 24, 2008), debtor sued Wells Fargo, the new servicer, for failing to provide her with a fresh validation notice before taking actions to collect debt. The court concluded that even assuming that Wells Fargo was acting as a debt…
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