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Summaries of Current NCLC eReports

Last updated 3/13/14

This page mirrors the summary page of NCLC eReports found at www.nclc.org/webaccess. If you are a registered user with access to NCLC eReports, you may click an article's headline to read the article. (Login may be required.)

FDCPA Violation to Offer to Settle Debt Without Disclosing Debt is Time-Barred

by Robert Hobbs and Charles Delbaum
NCLC eReports, Mar. 2014, No. 7
Debt Collection

The Seventh Circuit on March 11 has just found that it can be a FDCPA violation for a collector to settle a debt with a consumer without disclosing that the debt is outside the applicable statute of limitations. This is an important decision in that it is at variance with Third and Eighth Circuit rulings that collecting on a time-barred debt does not violate the FDCPA as long as the collector does not threaten litigation.

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Supreme Court Tells Bankruptcy Courts They Can No Longer "Surcharge" Debtors' Exemptions

by John Rao
NCLC eReports, Mar. 2014, No. 6
Bankruptcy

On March 4, the Supreme Court issued a unanimous opinion overruling the lower courts that had "surcharged" a debtor's claim of exemption to pay for expenses to recover property for the estate resulting from the debtor's bad conduct. This ruling also has broader implications where bankruptcy courts exercise equitable authority to disallow an exemption or bar a debtor from amending schedules.

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HUD Clarifies Expanded Eligibility for FHA-HAMP Loan Modifications

by Geoff Walsh
NCLC eReports, Mar. 2014, No. 5
Foreclosures and Servicing

HUD has just released a FAQ that has important implications for the operation of FHA-HAMP loan modifications. Through three examples, the FAQ shows that modifications are available without inclusion of a partial claim, that modifications are available even where the arrearage exceeds the partial claim cap, and that partial claims can only reduce modified monthly payments as needed to reach target payment amounts.

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New RESPA Loss Mitigation Procedures (Part 2)

by John Rao
NCLC eReports, Mar. 2014, No. 4
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the CFPB’s new 2013 RESPA and TILA Servicing Rules that went into effect on January 10, 2014. This article (Part 2) focuses on the procedures a servicer must follow if a borrower requests loss mitigation assistance.

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State Enforcement Actions Not Bound by Arbitration Requirement

by David Seligman
NCLC eReports, Mar. 2014, No. 3
Arbitration

A recent Iowa Supreme Court case finds that a state enforcement action on behalf of an individual is not bound by an arbitration clause between that individual and the enforcement action’s defendant. This ruling has important implications not just for state agencies but also for individuals.

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Gotcha Concerning Debt Buyer Calculation of Credit Card Interest

by Jon Sheldon
NCLC eReports, Mar. 2014, No. 2
Debt Collection

A recent federal court decision certified and granted summary judgment for a class as to Fair Debt Collection Practices Act liability where the debt buyer assessed additional interest starting from the date the card issuer charged off the debt, instead of from the date when the debt buyer purchased the debt. This ruling may have widespread applicability.

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Four-Year Limitation Period for Collection of Past-Due Gas Bill

by Jon Sheldon
NCLC eReports, Mar. 2014, No. 1
Utilities; Debt Collection

Many may find it surprising that a four-year statute of limitations applies to the collection of a delinquent natural gas heating bill, and not a longer limitations period for written or even unwritten contracts. This may not only lead to a dismissal of a collection action but may provide the consumer with an FDCPA claim.

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Servicer Cannot Evade Bankr. Rule 3002.1 Fee Notice Requirement by Claiming It Is Merely "Tracking" Fees

by John Rao
NCLC eReports, Feb. 2014, No. 4
Bankruptcy; Foreclosures and Servicing

Bankruptcy Rule 3002.1(c) now requires the creditor to give notice of any postpetition fees or charges assessed against the debtor's account within 180 days of when they are incurred. Prior to this change, litigation brought to challenge the assessment of fees during the bankruptcy typically was not successful because the servicer would claim that it was simply "tracking" the fees and not attempting to collect them. A recent bankruptcy court opinion has found that the "tracking" approach is not an effective defense to a servicer's violation of Rule 3002.1(c).

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New RESPA Loss Mitigation Procedures

by John Rao
NCLC eReports, Feb. 2014, No. 3
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the CFPB's new 2013 RESPA and TILA Servicing Rules that went into effect on January 10, 2014. This article focuses on the procedures a servicer must follow if a borrower requests loss mitigation assistance.

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Settlement Strategies When Suing on a Defective Vehicle

by Ronald Burdge
NCLC eReports, February 2014, No. 2
Auto Sales and Finance; Litigation Tips

This article explains the advantages of settling with the financing entity and includes suggested terms of such a settlement before engaging in litigation with the auto dealer.

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How to Keep Current (for Free) on State AG Consumer Litigation

by Stuart Rossman
NCLC eReports, February 2014, No. 1
UDAP, FTC

The National State Attorneys General Program at Columbia Law School compiles a free monthly digital newsletter of all state attorney general consumer protection actions. This article provides more information and a weblink.

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New RESPA "Continuity of Contact" Requirements for Borrowers in Default

by John Rao
NCLC eReports, Jan. 2014, No. 8
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the CFPB's new 2013 RESPA and TILA Servicing Rules that went into effect on January 10, 2014. This article focuses on the servicer requirement to maintain a continuity of contact with a borrower in default.

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Fourteen Tips in Arguing for Punitive Damages

Based upon material submitted by Bernard Brown
NCLC eReports, Jan. 2014, No. 7
Litigation Tips; Auto Sales and Finance

This article lists 14 tips on arguing for punitive damages in consumer cases, based upon the experience of a consumer attorney who for over thirty years has shown remarkable skill in obtaining such awards.

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Mortgage Origination Rules Going Into Effect January 10 and 18

by Andrew Pizor
NCLC eReports, Jan. 2014, No. 6
Mortgage Loans; Truth in Lending

This article is a quick listing of new CFPB rules on mortgage origination going into effect January 10 and 18. More detail can be found in NCLC's newly released Truth in Lending 2013 Supplement (Dec. 2013, 658 pp.).

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New RESPA Early Intervention Requirements for Borrowers in Default

by John Rao
NCLC eReports, Jan. 2014, No. 5
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the CFPB's new 2013 RESPA and TILA Servicing Rules that go into effect on January 10, 2014. This article focuses on the early intervention requirements.

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Avoiding RESPA's Affiliated Business Defense When Suing for Settlement Service Kickbacks

by Andrew Pizor
NCLC eReports, Jan. 2014, No. 4
Mortgage Lending

RESPA prohibits kickbacks for the referral of settlement services, but some companies abuse the "affiliated business arrangement" exemption by setting up sham intermediaries. This article indicates lessons to be drawn from a recent Sixth Circuit case as to the standards consumer attorneys should use to challenge these sham arrangements.

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Free Spine Stickers Indicating Volume 1 or 2 of Newly Released Fair Credit Reporting

NCLC eReports, Jan. 2014, No. 3
NCLC Announcements

Email publications@nclc.org to receive free spine stickers indicating the volume number of the newly released Fair Credit Reporting.

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Recent Favorable Arbitration Cases of Note

by David Seligman
NCLC eReports, Jan. 2014, No. 2
Arbitration

This article reviews four December, 2013 decisions limiting arbitration provisions. Two cases find unenforceable requirements that consumers arbitrate their disputes against attorneys concerning debt settlement scams, at least in part based on state attorney ethics rules. A third case strikes down an arbitration requirement found outside a retail installment sales agreement. A fourth case finds limits on judicial review of an arbitration award to be unenforceable.

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Wait, There's More to the CFPB's 2013 Year in Review!

by Lauren Saunders
NCLC eReports, Jan. 2014, No. 1
UDAP/FTC; Truth in Lending; Student Loans; Other Consumer Credit; Mortgage Loans; Foreclosures and Servicing; Auto Sales and Finance; Arbitration

This article updates the prior article on the CFPB's 2013 year accomplishments with some late-breaking, December CFPB developments.

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2013 Year in Review: The Consumer Financial Protection Bureau

by Lauren Saunders
NCLC eReports, Dec. 2013, No. 8
UDAP/FTC; Truth in Lending; Student Loans; Other Consumer Credit; Mortgage Loans; Foreclosures and Servicing; Fair Credit Reporting; Debt Collection; Banking, Checks, EFT; Auto Sales and Finance; Arbitration

2013 has been an active one for the Consumer Financial Protection Bureau (CFPB). The agency marked its two-year anniversary in July, and under newly confirmed director Richard Cordray it has been acting in an increasing number of areas to confront problems consumers face with financial products and services. This article describes only a portion of the CFPB's important work in 2013.

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NCLC Releases Ten New Consumer Law Treatise Updates

by Jon Sheldon
NCLC eReports, Dec. 2013, No. 7
NCLC Announcements

NCLC has just released ten new updates to our consumer law series and subscribers should receive them before Christmas. This article lists the ten updates and provides ordering information for those not on automatic subscription status.

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New RESPA Rules Change Qualified Written Request Procedure (Part 2)

by John Rao
NCLC eReports, Dec. 2013, No. 6
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the CFPB's new 2013 RESPA and TILA Servicing Rules that go into effect on January 10, 2014. This article (Part 2) focuses on the final rule dealing with new requirements as to a servicer's duty to respond to borrower requests for information. Part 1 focused on the new requirements regarding borrower notices of error.

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Identifying Card Issuer and Card Type from Card Number

by Jon Sheldon
NCLC eReports, Dec. 2013, No. 5
Other Consumer Credit

A free website indicates the card issuer, card type, and other information from the first six digits of the card number.

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New RESPA Rules Change Qualified Written Request Procedure (Part 1)

by John Rao
NCLC eReports, Dec. 2013, No. 4
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the CFPB's new 2013 RESPA and TILA Servicing Rules that go into effect on January 10, 2014. This article (Part 1) focuses on the final rule dealing with new requirements as to a servicer's duty to respond to borrower notices of error. Part 2 will focus on the new requirements regarding borrower requests for information.

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Debt Buyers Face a Heavy Burden in Claiming that Purchased Deficiency Claims Are Non-Dischargeable in Bankruptcy

by Siu Yan Chan and John Rao
NCLC eReports, Dec. 2013, No. 3
Bankruptcy; Debt Collection

Practitioners can expect increasing amounts of collection efforts by debt buyers on home mortgage deficiency claims. Where the consumer files bankruptcy, the debt buyer may claim the debt non-dischargeable because of fraud on the mortgage application. This article explains why such debt buyer claims will generally be unsuccessful.

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New Edition of Foreclosure Prevention Counseling Released in December

by Jon Sheldon
NCLC eReports, Dec. 2013, No. 2
NCLC Announcements

NCLC has released in December a long-overdue, thoroughly revised edition of our popular Foreclosure Prevention Counseling, a handbook for housing counselors, lawyers and others assisting homeowners in trouble with their mortgages. This article describes the chapters, appendices, companion website and how to order.

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Courts Find Internet Payday Lenders Must Obey State Law

by Andrew Pizor
NCLC eReports, Dec. 2013, No. 1
Other Consumer Credit

A growing number of courts find that Internet payday lenders must comply with a state's law where they make loans to that state's residents. This article surveys these federal and state decisions and discusses the broader implications of this case law.

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New Rule on Duty to Provide Timely Mortgage Payoff Statements

by John Rao
NCLC eReports, Nov. 2013, No. 4
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the 2013 RESPA and TILA Servicing Rules issued by the Consumer Financial Protection Bureau that go into effect on January 10, 2014. This article focuses on the final rule dealing with mortgage payoff statements.

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New Rights to Rehabilitate Defaulted Federal Student Loans

by Deanne Loonin
NCLC eReports, Nov. 2013, No. 3
Student Loans

Many students in default on their federal student loans are being pushed by collection agencies into rehabilitation plans with unaffordable monthly payments. New rules will significantly lower monthly payments, provide a faster path to stop wage garnishment, and offer students further protections concerning rehabilitation plans.

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Second Circuit: Mortgagee Subject to FDCPA Under the False Name Exception

by Robert Hobbs
NCLC eReports, Nov. 2013, No. 2
Debt Collection; Foreclosures and Servicing

On November 13, the Second Circuit for the first time discussed the FDCPA's application to the foreclosure process, finding that the mortgage company could be covered by the Act by collecting using a false name. In this case, the mortgage company used a law firm to merely send out collection letters in the law firm's name even though the firm was not significantly engaged in collection on the debt.

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California Supreme Court Breathes New Life into Unconscionability Challenges to Arbitration Requirements

by David H. Seligman
NCLC eReports, Nov. 2013, No. 1
Arbitration

An October 17 ruling from the California Supreme Court clarifies the extent to which state unconscionability challenges remain viable despite the U.S. Supreme Court ruling in Concepcion that the Federal Arbitration Act preempts state unconscionability challenges to class arbitration waiver provisions.

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New RESPA Rule on Force-Placed Insurance: Notice Requirements and Basis for Charging Borrower (Part 2 of 2)

by John Rao
NCLC eReports, Oct. 2013, No. 7
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the 2013 RESPA and TILA Servicing Rules that go into effect on January 10, 2014. This article (part 2 of 2) focuses on the notice requirements under the rule dealing with force-placed insurance. Part 1 covered a new substantive protection that limits the use of force-placed insurance when a borrower has an escrow account.

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Significant Consumer Protection Added to Final Rule Implementing Force-Placed Insurance Restrictions (Part 1 of 2)

by John Rao
NCLC eReports, Oct. 2013, No. 6
Foreclosures and Servicing

This article is part of a series of NCLC eReports covering the 2013 RESPA and TILA Servicing Rules that go into effect on January 10, 2014. This two-part article focuses on the force-placed insurance restrictions. Part 1 discusses a new substantive protection that should limit the use of force-placed insurance. Part 2 covers the rule's notice requirements.

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Recent Fair Debt Collection Practices Act Appellate Decisions

by Bob Hobbs
NCLC eReports, Oct. 2013, No. 5
Debt Collection

A review of recent appellate court decisions relating to the FDCPA.

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Hawaii Supreme Court Sets Out Tough Standard as to Consumer Assent to Arbitration

by David H. Seligman
NCLC eReports, Oct. 2013, No. 4
Arbitration

The Hawaii Supreme Court on September 26, in Siopes v. Kaiser Health Plan, Inc., ruled that an arbitration clause is not enforceable where the consumer was not on notice (either actual or constructive) of the arbitration clause found in the transaction documents. Although the law is becoming increasingly favorable to parties seeking to enforce arbitration requirements, arbitration remains a creature of contract, and a plaintiff cannot be bound by an arbitration clause to which he or she has not assented, as determined by state contract law.

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Waiver of Arbitration as to Named Plaintiff Allows Class Action to Proceed

by David H. Seligman
NCLC eReports, Oct. 2013, No. 3
Arbitration; Class Actions

A September 13 appellate decision allows a class action to proceed in court where the defendant participated extensively in the case while it was in court, before the individual plaintiffs sought class certification. The waiver of the arbitration clause as to the individual plaintiffs applies to the class as well.

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Employee Payroll Card Rights in a Nutshell

by Lauren Saunders
NCLC eReports, Oct. 2013, No. 2
Banking, Checks, EFT

Employers are increasingly eliminating paper paychecks and paying wages electronically. For employees who do not set up direct deposit, employers may pay wages by depositing funds onto a payroll card provided by the employer. This article sets out basic employee protections for such cards.

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Groundbreaking Ruling Protects from Foreclosure Spouses Not Named on Reverse Mortgages

by Jean Constantine Davis and Craig Briskin
NCLC eReports, Oct. 2013, No. 1
Foreclosures and Servicing

A federal court for the first time, on September 30 has just found that the HECM reverse mortgage statute protects a surviving spouse from foreclosure upon the other spouse's death, even if the surviving spouse is not on the mortgage. The plaintiffs' attorneys describe the case and the ruling in this article.

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Fast Facts on the Debt Buyer Industry

by Jon Sheldon
NCLC eReports, Sept. 2013, No. 9
Debt Collection

2012 saw some interesting changes in the debt buyer industry. This article lists five of them.

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Getting Proper Service on the Right Party for Lien Stripping (Part 2 of 2)

by John Rao
NCLC eReports, Sept. 2013, No. 8
Bankruptcy; Foreclosures and Servicing

This article (part 2 of 2) provides step-by-step instructions on how to properly serve the respondent in a bankruptcy lien stripping procedure. Part 1 provided tips on identifying the property party to name as the respondent.

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HUD's New Clarification of FHA Loss Mitigation Rules Helps Homeowners

by Geoff Walsh
NCLC eReports, Sept. 2013, No. 7
Foreclosures and Servicing

A new HUD Mortgagee Letter will help homeowners obtain loan modifications on their FHA-insured mortgages. Standards are liberalized in three important respects from those set out in the HUD Mortgagee Letter of November 16, 2012.

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2012 HMDA Data Released

by Jon Sheldon
NCLC eReports, Sept. 2013, No. 6
Mortgage Loans

2012 HMDA data has just been released. In addition, the CFPB has launched an online tool to provide easy access to the data. Additional tools to analyze the data are promised for the future.

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OCC Requires Chase to Change Collection Litigation and Debt Sales Practices

by Robert Hobbs
NCLC eReports, Sept. 2013, No. 5
Debt Collection

The OCC has on September 19 entered into a consent order with Chase requiring it to revamp its practices in bringing collection lawsuits and selling its debt to debt buyers. This article summarizes the consent order and puts it into a broader framework.

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No HOLA Preemption of State Claims against Mortgage Servicer

by Andrew Pizor, with credit to Kent Qian of the National Housing Law Program for his original summary of the case
NCLC eReports, Sept. 2013, No. 4
Foreclosures and Servicing

While state claims against federal savings associations are often preempted for mortgages entered into prior to July 22, 2010, a recent federal decision indicates important limits to that preemption. Even for such older mortgages, state fraud, negligent misrepresentation, and promissory estoppel claims can be brought against the savings association's servicer -- in this case concerning mortgage modifications.

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Consumer's Monetary Harm From Servicing Error as a Foreclosure Defense

by Andrew Pizor
NCLC eReports, Sept. 2013, No. 3
Foreclosures and Servicing

The Fifth Circuit has just ruled that a homeowner's monetary injury from a servicing error may provide the basis to undo a foreclosure. The case has broad implications concerning the ability to raise as a foreclosure defense servicing errors that cause monetary injury to the homeowner.

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California Enacts New Law Regulating Debt Buyers

by Margaret Dreschel and Ted Mermin
NCLC eReports, Sept. 2013, No. 2
Debt Collection

California has just enacted one of the nation's most sweeping statutes targeting debt buyer abuses, effective January 1, 2014. This article, written by a law student and one of the attorneys involved in the bill's drafting and enactment, describes the statute's provisions and rationale.

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New Federal Rule Insures Service on the Right Party for Lien Stripping (Part 1 of 2)

by John Rao
NCLC eReports, Sept. 2013, No. 1
Bankruptcy; Foreclosures and Servicing

A bankruptcy order stripping a mortgage lien, to be effective, must name the proper mortgage holder. A new RESPA rule lets homeowners obtain the holder's identity within 10 days of a request, and this article explains the rule, provides a sample request, and analyzes other tactics to obtain the mortgage holder's identity.

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State Supreme Court Rules Affidavit Insufficient to Show Ownership of Debt

by Jon Sheldon
NCLC eReports, August 2013, No. 13
Debt Collection

The Maine Supreme Court has just ruled that an affidavit is insufficient to show an assignment of a debt and that the actual assignment document must be produced. This is of special relevance to debt buyer collection lawsuits, which rarely produce a sufficient assignment document for the account at issue.

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Large Statutory Damage Awards for Auto-Dialed Calls to Cell Phones

by Jon Sheldon
NCLC eReports, August 2013, No. 12
Debt Collection; UDAP/FTC

Increasingly, creditors and debt collectors, in potential violation of the Telephone Consumer Protection Act, are using auto-dialed systems to place collection calls to consumer cell phones. Violations result in $500 per call. In a case of first impression for a U.S. circuit court, the Third Circuit allows the consumer to revoke consent to such calls that was made in the credit application, thus making 40 subsequent auto-dialed calls illegal.

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Sixth Circuit Dicta Says No Rescission Lawsuit after Three Years

by Andrew Pizor
NCLC eReports, August 2013, No. 11
Truth in Lending; Mortgage Loans

This article explains, despite potential creditor arguments, that an August Sixth Circuit decision does not clarify the law concerning the time deadline to file a lawsuit to enforce a TILA rescission notice. While the rescission notice should be sent within three years, the Circuits are divided as to whether the lawsuit to enforce the rescission must be filed within that period, and the new Sixth Circuit decision does nothing to resolve this split.

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New Website on Rights of Student Loan Borrowers

by Deanne Loonin
NCLC eReports, August 2013, No. 10
Student Loans; NCLC Announcements

NCLC's Student Loan Borrower Assistance website (free to the general public) is packed with helpful resources for students and their attorneys. The site has now been overhauled and improved. Go to www.studentloanborrowerassistance.org.

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Debt Buyer's Unsubstantiated Collection Action Violates the FDCPA

by Jon Sheldon
NCLC eReports, August 2013, No. 9
Debt Collection

A new Missouri Court of Appeals case finds a debt buyer's collection lawsuit to violate the FDCPA because it lacked evidence that it was the card issuer's assignee, it failed to produce evidence supporting its claim of money owed, and it sought attorney fees, interest and other charges without any substantiation.

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Mortgage Holder’s Liability for Mortgage Servicer TILA Violations

by Andrew Pizor
NCLC eReports, August 2013, No. 8
Truth in Lending; Foreclosures and Servicing

Truth in Lending imposes several obligations on mortgage servicers, and it is often important to raise those violations not against the servicer, but against the creditor or the creditor's assignee. This article explores various theories for raising TILA servicing violations against the original creditor or the party holding the mortgage loan.

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Courts Increasingly Un-Amused by Corporations Who Litigate in Court for a While Before Invoking Arbitration Clauses

by Paul Bland, @PblandBland, Public Justice
NCLC eReports, August 2013, No. 7
Arbitration

In this piece, cross-posted from the Public Citizen Law and Policy blog, Public Justice's Paul Bland discusses a silver lining in recent arbitration-related case law.

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How the Oregon Supreme Court's Decisions in Brandrup and Niday Limit MERS' Role in Non-Judicial Foreclosures

by Geoff Walsh
NCLC eReports, Aug. 2013, No. 6
Foreclosures and Servicing

Two recent Oregon Supreme Court cases limit the ability of MERS or its assignee servicers to conduct non-judicial foreclosures, and the principles enunciated in these cases should have implications nationwide for both non-judicial and judicial foreclosures by MERS and its assignees.

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9th Circuit: Foreclosure Despite Modification Agreement May Violate ECOA, But FDCPA Inapplicable

by Robert Hobbs
NCLC eReports, Aug. 2013, No. 5
Foreclosures and Servicing; Other Consumer Credit; Debt Collection

The Ninth Circuit has just ruled that a threatened foreclosure despite an in-place modification agreement can violate the ECOA adverse notice requirement. The mortgage holder's actions do not violate the FDCPA because the statute does not apply to creditors.

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Growing Use of Class Arbitration Where Arbitration Clause Silent on Availability

by Jon Sheldon
NCLC eReports, Aug. 2013, No. 4
Arbitration; Class Actions

The Eleventh Circuit, following the Supreme Court's holding in Sutter, has affirmed an arbitrator's decision to allow class arbitration where the arbitration clause is silent as to its availability. This is a good reminder that seeking class arbitration is an important option where the arbitration clause is silent as to its availability.

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Title Agent's Charge Not RESPA Violation But May Be UDAP Violation

by Andrew Pizor
NCLC eReports, Aug. 2013, No. 3
Mortgage Loans; UDAP/FTC

A July 19 Third Circuit decision finds an overpriced recording release fee charge not a RESPA violation but a potential UDAP violation.

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NCLC Releases Ten New Updates for the Consumer Law Practice Series

by Jon Sheldon
NCLC eReports, Aug. 2013, No. 2
NCLC Announcements

NCLC has just released 10 updates for our consumer law treatises, including revised editions of Consumer Class Actions, Consumer Banking and Payments Law, and Credit Discrimination.

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Bankruptcy Discharge Can Render Arbitration Requirement Unenforceable

by Jon Sheldon
NCLC eReports, Aug. 2013, No. 1
Arbitration; Bankruptcy; Debt Collection

Courts have found that a bankruptcy discharge can render an arbitration agreement unenforceable. For example, where a debt buyer continues to seek payment on a debt discharged in bankruptcy, the debt buyer cannot raise an arbitration requirement in response to the consumer's FDCPA claim that the debt buyer is illegally seeking collection of a discharged debt.

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Important Changes re Student Loan Repayments Effective July 1, 2013

by Deanne Loonin
NCLC eReports, July 2013, No. 2
Student Loans

New federal student loan regulations went into effect on July 1. The rules alter the process of obtaining reduced student loan payments based upon the borrower's income and also change the method of applying to discharge student loans based upon the borrower's disability.

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Sixth Circuit Holds that IRA is Exempt Despite Lien Provision in Brokerage Firm Agreement

by John Rao
NCLC eReports, July 2013, No. 1
Bankruptcy; Exemptions

A June 17, 2013 Sixth Circuit decision finds that IRA funds are exempt in a bankruptcy even when the individual's brokerage firm has taken a lien on the funds in the IRA account at that brokerage.

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Overcoming the Supreme Court's Ruling that Arbitration Can Eliminate Federal Rights

by Jon Sheldon
NCLC eReports, June 2013, No. 9
Arbitration; Class Actions

The Supreme Court has just upheld a ban on class arbitration that deprives litigants of the ability to vindicate their rights under the federal anti-trust statutes. This article examines the practical implications of this ruling for class action practitioners.

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Revised Treasury Rule Protecting Exempt Benefits Goes Into Effect June 28, 2013

by Carolyn Carter
NCLC eReports, June 2013, No. 8
Banking, Checks, EFT; Debt Collection

The Treasury Department has issued a final rule, effective June 28, that protects from both garnishment and a freeze a certain amount of federal benefits deposited into a consumer's bank account. This final rule amends the interim final rule that was effective on May 1, 2011, and this article examines changes enacted by the final rule.

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New Report Sheds Light on Legal Challenges to Student Loan "Debt Relief" Industry Abuses

by Deanne Loonin
NCLC eReports, June 2013, No. 7
Student Loans

A new industry is promising assistance to consumers in trouble with their student loan repayments. A new NCLC report finds the industry rife with abuses, many of which clearly violate federal and state law--offering victims powerful remedies.

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Supreme Court Considers Whether Disparate Impact Claims Cognizable Under the Fair Housing Act

by Stuart Rossman
NCLC eReports, June 2013, No. 6
Mortgage Loans; Class Actions

The Supreme Court has just accepted certiorari in a challenge to the applicability of a disparate impact standard in FHA claims concerning mortgage discrimination. Any Supreme Court ruling in this area could have a major impact on many pending and potential class actions. This article discusses whether there will be a Supreme Court decision in this case, and what that decision might be.

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Fourth Circuit Approves Lien Stripping in No-Discharge Case

by John Rao
NCLC eReports, June 2013, No. 5
Bankruptcy

An issue that has divided the bankruptcy courts is whether a debtor may strip off a wholly unsecured mortgage in a case in which the debtor is not eligible to receive a discharge. The Fourth Circuit in In re Davis is the first Circuit Court to address the issue, and it has held in a 2-1 decision that strip off in a no-discharge chapter 13 case is permissible.

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First Circuit Holds Judgment Debtors' Wages Not Protected by FDCPA Convenient Forum Requirement

by Robert Hobbs
NCLC eReports, June 2013, No. 4
Debt Collection

An important FDCPA protection prohibits collectors and attorneys from bringing lawsuits against consumers in an inconvenient forum As indicated by a recent First Circuit decision, the courts are split on whether this protection applies to a post-judgment proceeding to garnish the consumer's wages. This article examines the First Circuit decision and considers ways to distinguish it.

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U.S. Supreme Court Allows Class-Wide Arbitration to Proceed

by Jon Sheldon
NCLC eReports, June 2013, No. 3
Arbitration; Class Actions

On June 10, the Supreme Court in Oxford Health Plans LLC v. Sutter upheld an arbitrator's decision that a "silent" arbitration clause should be interpreted as allowing for class-wide arbitration, distinguishing its 2010 holding in Stolt-Nielsen.

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New CFPB Servicing Regulations Apply to Borrowers in Bankruptcy

by John Rao
NCLC eReports, June 2013, No. 2
Bankruptcy; Foreclosures and Servicing

New CFPB servicing regulations go far beyond those previously promulgated by HUD. These regulations have important implications for borrowers in bankruptcy. This lengthy article focuses on the important changes the new servicing rules will have for homeowners filing bankruptcy. Subsequent articles will examine the new regulations more broadly.

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TILA Rescission Tender Using Installment Payments

by Andrew Pizor
NCLC eReports, June 2013, No. 1
Truth in Lending

A New York state trial court has recently found that the TIL rescission tender requirement could be met by the homeowner making installment payments, using HAMP guidelines to structure the installments. The decision has just been upheld on appeal.

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Limiting the Applicability of New Eleventh Circuit TIL Rescission Case

by Andrew Pizor
NCLC eReports, May 2013, No. 9
Truth in Lending

This article argues for a limited applicability of a recent Eleventh Circuit decision finding no right to rescind despite material disclosure violations.

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HAMP Extended Through December 31, 2015

by Diane Thompson
NCLC eReports, May 2013, No. 8
Foreclosures and Servicing; Mortgage Loans

The HAMP home loan modification program has been extended another two years, through December 31, 2015.

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Second Circuit: FDCPA Violated Where Collection Notice Requires a Writing to Dispute the Debt

by Robert Hobbs
NCLC eReports, May 2013, No. 7
Debt Collection

A May 29 Second Circuit decision provides that a consumer's dispute of a debt need not be in writing, and that requiring such a writing is an FDCPA violation. In addition, the decision implies that other consumer communications with collectors asserting rights need not be in writing either.

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May 2013 Release of Second Edition of Bankruptcy Basics

by Jon Sheldon
NCLC eReports, May 2013, No. 6
NCLC Announcements; Bankruptcy

Bankruptcy Basics is a step-by-step guide for attorneys filing their first bankruptcy case and for paralegals under an attorney’s supervision. In May, NCLC released a Second Edition, updated with the latest forms, rules, dollar amounts and other requirements.

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Using Loss Mitigation or Bankruptcy to Stop a Reverse Mortgage Foreclosure

by Margot Saunders
NCLC eReports, May 2013, No. 5
Mortgage Loans; Foreclosures and Servicing; Bankruptcy

A common reason for a reverse mortgage foreclosure is the homeowner does not keep up with taxes or property insurance premiums. This article describes how either loss mitigation options or a chapter 13 bankruptcy may avoid such foreclosure.

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CFPB Postpones Ban on Financing Single-Premium Credit Insurance in Mortgages

by Andrew Pizor
NCLC eReports, May 2013, No. 4
Mortgage Loans, Truth in Lending

The CFPB has just delayed the June 1 effective date on a ban on financing
single-premium financing in mortgage loans.

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Consumer Rights Litigation Conference, November 7-10, in D.C.

by Robert Hobbs
NCLC eReports, May 2013, No. 3
NCLC Announcements

Save the date for NCLC's next Consumer Rights Litigation Conference in Washington D.C., November 7-10.

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Effective June 1, Regulation Z Prohibits Arbitration in Mortgage Loans

by Jon Sheldon
NCLC eReports, May 2013, No. 2
Arbitration; Mortgage Loans; Truth in Lending

Effective June 1, Regulation Z prohibits arbitration in mortgage loans. For the near future, the key issue will be whether this ban applies retroactively to loans consummated prior to June 1. This article discusses that retroactive application.

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May 7 Release of Instant Evidence (2d ed.), a Quick Guide to Federal Evidence & Objections

by Jon Sheldon
NCLC eReports, May 2013, No. 1
NCLC Announcements

Instant Evidence, a 21-page guide to federal evidence and objections, laminated and spiral-bound, is now available in its second edition.

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Nifty Tip in Bringing FDCPA and TILA Claims

by Robert Hobbs
NCLC eReports, April 2013, No. 9
Debt Collection

A helpful litigation tip: bona fide error defenses must be pleaded with particularity.

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New Case on Federal Preemption of Mortgage Loan Servicing Claims

by Carolyn Carter
NCLC eReports, April 2013, No. 8
Mortgage Loans; Foreclosures and Servicing

This article focuses on federal preemption of mortgage loan servicing claims, as analyzed in two recent California cases.

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New Supreme Court Decision: The Application of FRCP 68 in Collective and Class Actions

by Stuart Rossman
NCLC eReports, April 2013, No. 7
Class Actions

On April 16, the Supreme Court decided the case of Genesis Healthcare Corp. v. Symczyk, 2013 WL 1567370, a collective action brought by the Respondent, Symczyk, under the Fair Labor Standards Act of 1938 on behalf of herself and "other employees similarly situated." After Symczyk did not respond to a personal offer of judgment under Federal Rule of Civil Procedure 68, the federal district court, finding that the offer fully satisfied her claim, concluded that the individual case was moot and dismissed the entire suit for lack of subject matter jurisdiction. The Third Circuit Court of Appeals reversed, holding that Symczyk's individual claim was moot but that her collective action was not.

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Significant Recent Fair Debt Collection Practices Act Decisions

by Robert Hobbs and Joanne Faulkner
NCLC eReports, April 2013, No. 6
Debt Collection

Over 500 pages of FDCPA case summaries are found in NCLC's Fair Debt Collection Appx. K (7th ed. 2011 and 2012 Supp.). This article and future articles will provide an advance look (prior to the 2013 Supplement's release) at case summaries for some of the most recent significant FDCPA cases.

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Can MERS Avoid Recording Fees and Does MERS Deceive Consumers?

by Geoff Walsh
NCLC eReports, April 2013, No. 5
Foreclosures and Servicing, Mortgage Loans

The Mortgage Electronic Registration Systems (MERS) privately records transfers of ownership of mortgage loans. Recent case law examines whether MERS has been illegally avoiding recording fees and public recording of transfers, and also whether consumers can bring deception actions regarding a loan's ownership where MERS is involved in its transfer.

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Contract Claims Enforcing HAMP Trial Period Plans and Permanent Modifications

by Arielle Cohen and Kent Qian,
NCLC eReports, April 2013, No. 4
Foreclosures and Servicing

When servicers fail to fulfill their commitments under HAMP trial period plans or permanent modification agreements, homeowners have breach of contract claims against the servicer. This article examines the various legal issues that arise in such breach of contract litigation.

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New IRS Guidance Limits Adverse Tax Consequences of HAMP Loan Modifications Involving Principal Forgiveness

by Diane Thompson
NCLC eReports, April 2013, No. 3
Foreclosures and Servicing, Mortgage Loans

A January 24 IRS guidance offers homeowners new options for limiting the tax consequences of principal forgiveness in connection with HAMP loan modifications. It is important to understand this guidance because the homeowner must affirmatively opt for a particular tax treatment. This option applies not only to tax returns for 2012 and future years, but also to prior tax years, allowing for amended returns.

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The Supreme Court Plays a Game of 3-Card Monte

by Stuart Rossman
NCLC eReports, April 2013, No. 2
Class Actions

On March 27, the Supreme Court issued its latest opinion on class certification. This article explains what the opinion did not decide, what it did, and what the case implies for future class actions.

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The Costs of Confidentiality

by Jennifer S. Wagner, Managing Attorney, Mountain State Justice, Inc.
NCLC eReports, April 2013, No. 1
Litigation Tips

This article sets out the case against and implications of including confidentiality clauses in settlement agreements.

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Third Circuit: Collector Urging Consumer to Call with Any Dispute Overshadows FDCPA Requirement That Verification Request Be in Writing

by Robert Hobbs
NCLC eReports, March 2013, No. 8
Debt Collection

The Third Circuit has just ruled that a collector's notice urging the consumer to call concerning any dispute overshadows the FDCPA requirement that the consumer’s right to obtain verification or dispute a debt be in writing (i.e. calling would not be sufficient).

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Third Circuit Finds Rescission Letter Sufficient to Exercise TILA Right to Rescind

by Andrew Pizor
NCLC eReports, March 2013, No. 7
Truth in Lending

The Third Circuit holds that a homeowner need only send a valid and timely rescission notice in order to rescind under the Truth in Lending Act and need not file suit within three years to enforce the rescission. In doing so, the court joins the Fourth Circuit and splits with the Ninth and Tenth Circuits.

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What the CFPB Did in Its First Full Year (And So Far This Year)

by Alys Cohen
NCLC eReports, March 2013, No. 6
Mortgage Loans; Foreclosures and Servicing; Truth in Lending; Fair Credit Reporting; Other Consumer Credit; Banking, Checks, EFT

This article summarizes CFPB activities in 2012 and early 2013. It includes descriptions of various new rule provisions affecting mortgages, remittances, and Truth in Lending. The article also examines other CFPB reports and activities relating to credit reporting, fair lending, and credit card add-ons.

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First Circuit: Homeowners Have Standing to Challenge Assignment of Their Mortgages

by Geoff Walsh
NCLC eReports, March 2013, No. 5
Foreclosures and Servicing

Surprisingly, there is mixed case law as to whether a homeowner has standing to challenge the assignment of the homeowner’s mortgage. Two First Circuit decisions this February clearly hold that homeowners have such standing as part of their challenge to a foreclosure. This article also explains why a Sixth Circuit decision often cited by the industry does not hold to the contrary.

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Federal Bankruptcy Exemptions and Other Dollar Amounts To Increase April 1

by John Rao
NCLC eReports, March 2013, No. 4
Bankruptcy

On April 1, a number of Bankruptcy Code dollar amounts will be adjusted for inflation, including the dollar amounts for exemptions, means tests, and chapter 13 limitations. This article sets out all the new dollar amounts.

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Appellate Court Decision Signals the Death Knell for Refund Anticipation Checks (RACs)?

by Chi Chi Wu
NCLC eReports, March 2013, No. 3
Other Consumer Credit; Truth in Lending; UDAP

Over 18 million consumers in 2011 paid for tax preparation services with a refund anticipation check (RAC) -- payment for the services plus a "fee" is delayed until the tax refund is issued. A California appellate court finds that TILA applies (requiring APR disclosures over 200%) and that the RAC involved other deceptive practices.

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Unfair and Deficient Nationwide Robosigning Settlement Overturned

by Charles Delbaum
NCLC eReports, March 2013, No. 2
Class Actions; Debt Collection

The Sixth Circuit has thrown out as inadequate a nationwide settlement involving the debt buyer Midland’s robosigning practices. Many consumer attorneys had opposed the settlement as inadequate and as interfering with more adequate relief that might be obtained by other pending actions against Midland.

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7-2 U.S. Supreme Court Decision May Make FDCPA Consumer Plaintiffs Responsible for a Prevailing Debt Collector’s Costs

by Robert Hobbs
NCLC eReports, March, 2013, No. 1
Debt Collection

Supreme Court allows a prevailing defendant to recover Fed. R. Civ. P. 54(d)(1) attorney fees in an FDCPA case without a showing of bad faith even though fees under the FDCPA require such a showing.

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Everything You Need to Know About Federal Benefit Checks Effective March 1, 2013

by Margot Saunders
NCLC eReports, February 2013, No. 4
Banking, Checks, EFT

Effective March 1, 2013, paper checks for federal benefit payments are being phased out. This article examines remaining rights to receive paper checks, new protections from garnishment of federal benefit payments deposited in bank accounts, and the new Direct Express form of payment of federal benefits.

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Lien Stripping Updates

by John Rao
NCLC eReports, February 2013, No. 3
Bankruptcy; Mortgage Loans; Foreclosures and Servicing

A review of recent case law related to lien stripping and bankruptcy.

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Recent Decisions Under Bankruptcy Mortgage Rules

by John Rao
NCLC eReports, February 2013, No. 2
Bankruptcy; Mortgage Loans; Foreclosures and Servicing

A survey of recent mortgage-related bankruptcy decisions.

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Tax Implications of Statutory Student Loan Cancellation Programs

by Persis Yu
NCLC eReports, February 2013, No. 1
Student Loans

This article seeks to clarify whether forgiveness of student loan debt of various types must be treated as income to the student for purposes of a federal income tax filing. A previous article (January 2013 #16) focused on 1099 forms sent to students who had received disability discharges. This article deals more generally with the tax treatment of other forms of student loan debt forgiveness.

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Overview of FDCPA Coverage of Mortgages and Foreclosure Activities

by Robert Hobbs
NCLC eReports, January 2013, No. 19
Debt Collection; Foreclosures and Servicing

This article comprehensively examines the application of the FDCPA to foreclosure practices, particularly in light of recent case law.

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CFPB Revises HOEPA Rule

by Andrew Pizor
NCLC eReports, January 2013, No. 18
Truth in Lending; Mortgage Loans

The CFPB on January 10, 2013 issued a final HOEPA rule implementing Dodd-Frank's HOEPA changes, effective for mortgage loans consummated after January 10, 2014.

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Seats Available for FDCPA Training and Session on Defending Consumer State Court Defendants, March 7-9 in Baltimore

by Robert Hobbs
NCLC eReports, January 2013, No. 17
Debt Collection; NCLC Announcements

NCLC is conducting two trainings in Baltimore March 7 through 9. The first is introductory FDCPA training. The second is training on representing state court consumer debt collection defendants. Registration is still available.

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Federal Student Loan Borrowers Start Receiving 1099-C's for Loans Discharged for Death and Disability

by Persis Yu
NCLC eReports, January 2013, No. 16
Student Loans

Students whose loans have been forgiven because of death or disability will be receiving 1099-C's indicating that the forgiven debt is income. This article examines in particular the insolvency grounds to avoid treating that income as taxable.

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Different Outcomes in Two Appeals After FDCPA Plaintiffs Accept Offers of Judgment

by Robert Hobbs
NCLC eReports, January 2013, No. 15
Debt Collection

Two Ninth and Eleventh Circuits recently dealt with the survival of a case or controversy after the consumer accepted the debt collector's offer of judgment. Both courts applied the same standard but reached different outcomes because of the different postures of the cases.

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11th Cir.: Home Owner Association's Management Company Exempted from FDCPA as a "Fiduciary"

by Robert Hobbs
NCLC eReports, January 2013, No. 14
Debt Collection

The Eleventh Circuit has just ruled that a management company hired by a home owner association is not covered by the FDCPA under the statute's fiduciary exemption. This article examines and critiques the decision.

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Sixth Circuit: Foreclosure Subject to the Requirements of the Fair Debt Collection Practices Act (FDCPA)

by Robert Hobbs
NCLC eReports, January 2013, No. 13
Debt Collection

The Sixth Circuit in Glazer v. Chase Home Finance LLC, on January 14 determined that the FDCPA applies to foreclosures, expanding on its previous decisions and expanding on decisions favorable to homeowners from the Fourth, Fifth, Seventh, and Eleventh Circuits in mortgage cases.

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Surviving Spouses of Reverse Mortgage Borrowers Have Standing to Assert Protection from Displacement

by Jean Constantine-Davis, Senior Attorney, AARP Foundation Litigation and Craig Briskin, Partner, Mehri & Skalet, P.L.L.C.
NCLC eReports, January 2013, No. 12
Foreclosures and Servicing; Mortgage Loans

A January 4, 2013 D.C. Circuit ruling has important implications in overturning a HUD Rule and providing protections for surviving spouses of reverse mortgage borrowers who face foreclosure after the death of their spouses. Bennett v. Donovan holds that surviving spouses have standing to enforce the "Safeguard to prevent displacement of homeowner‚" in the federal reverse mortgage statute, because the statute also gives HUD the power to take ownership of mortgages to serve the program's goals.

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Advocate's Guide to the National Mortgage Settlement's Servicing Provisions (Part 3 of 3)

by Angelica Ornelas, Clinic Fellow of California Monitor Program
NCLC eReports, January 2013, No. 11
Foreclosures and Servicing; Bankruptcy

In Part 3 of this article on the National Mortgage Settlement, we describe the loan modifications, refinance programs, and other forms of consumer relief available under the agreement. Prior issues of NCLC Reports have described the default servicing and general servicing provisions of the Settlement.

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NCLC Releases Revised TIL Treatise and 8 Other Updates

by Jon Sheldon
NCLC eReports, January 2013, No. 10
NCLC Announcements

NCLC in December released nine important new updates to our Consumer Law Practice Series. Subscribers have already received them and others can order them on-line or by phone.

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New Protections for Military Personnel and Their Dependents

by Jeremiah Battle, Jr.
NCLC eReports, January 2013, No. 9
Other Consumer Credit

Amendments to the Military Lending Act, awaiting the President's signature, would create a private right of action and clarify the Act's coverage that limits payday, auto title, and refund anticipation loans to military personnel and their dependents.

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Congress Extends Through 2013 the Mortgage Forgiveness Debt Relief Act

by Andrew Pizor
NCLC eReports, January 2013, No. 8
Foreclosures and Servicing

Congress has extended the Mortgage Forgiveness Debt Relief Act for another year, until January 1, 2014. The Act allows homeowners to exclude from taxable income most discharged primary residence purchase money debt.

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Mandate for Electronic Deposit of Federal Benefit Payments Kicks in March 1, 2013

by Margot Saunders
NCLC eReports, January 2013, No. 7
Banking, Checks, EFT

Effective March 1, 2013, it will be much more difficult to receive paper checks for federal benefit payments. This article explains how to obtain a waiver from direct deposit and the best options where a waiver is not available, particularly for those without a bank account.

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Errata in NCLC's Foreclosures (4th ed. 2012) Treatise

NCLC eReports, January 2013, No. 6
Foreclosures and Servicing; NCLC Announcements

This errata corrects a footnote numbering problem in NCLC's Foreclosures chapter 6 (4th ed. 2012).

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Servicer Lockout of Borrowers in the Name of Property Preservation

by Andrew Pizor
NCLC eReports, January 2013, No. 5
Foreclosures and Servicing

Servicers sometimes illegally lock homeowners out of their own homes and also destroy or take personal property in the process. This article describes mortgage holder rights to enter and secure a home and consumer remedies where servicers or their agents improperly lock out residents or damage personal property.

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Supreme Court 9-to-1 Multiplier for Punitive Damages Not Applicable When Actual Damages Are Nominal

by Carolyn Carter
NCLC eReports, January 2013, No. 4
UDAP, FTC; Other Consumer Credit

Despite Supreme Court statements suggesting that punitive damages awards should not be more than nine times actual damages, large punitive damage awards are common where actual damages are nominal or very small. This article sets out case law and arguments why this is the case.

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Gore Standards Do Not Limit Statutory or Multiple Damages

by Carolyn Carter
NCLC eReports, January 2013, No. 3
UDAP/FTC; Other Consumer Credit

Now that Odometer Act statutory damages are $10,000, Truth in Lending statutory damages have been increased, and also where multiple statutory damages are assessed, consumer attorneys should expect corporations to raise due process challenges similar to those the Supreme Court has upheld as to the award of punitive damages. This article explains why these challenges should fail.

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Jan. 28 Scholarship Deadline for Baltimore Fair Debt Training Conference, March 7–8

by Robert Hobbs
NCLC eReports, January 2013, No. 2
NCLC Announcements; Debt Collection

January 28 is the deadline to apply for a scholarship for NCLC's Fair Debt Training Conference, to be held in Baltimore March 7 and 8.

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W. Va. Court Awards Millions for Debt Collection Violations Against CashCall

by Margot Saunders
NCLC eReports, January 2013, No. 1
Debt Collection; Banking, Checking, EFT

A state court has awarded the state and consumers millions of dollars under state law theories for CashCall's persistent phone calling, misrepresentation of its available creditor remedies, and Electronic Funds Transfer Act violations for requiring EFT payments on small loans.

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