Alerts

Proposed Changes to Ohio Medicaid Eligibility Will Require Wider Use of Miller Trusts

May 3, 2016      |      Thomas R. Kendall, Esq.   

Income requirements for Medicaid eligibility could be changing thanks to rule amendments proposed by the Ohio Department of Medicaid (ODM). According to ODM’s proposal, Ohio will convert from a “209(b)” state to a “Section 1634” state starting July 1, 2016. This means that, when determining Medicaid eligibility, Ohio will implement an income cap equal to three times the Supplemental Security Income Federal Benefit Rate....

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Kentucky Supreme Court Permits Limited-Representation Agreements by Debt Settlement Companies

April 7, 2016      |      James T. Hart, Esq.   

When negotiating resolutions for debtors, most creditors’ attorneys have dealt with debt settlement companies at some point. The number of debt "adjusting," "relief" or "assistance" companies have proliferated in recent years. Many companies have expanded their services to include not just negotiation, but also active assistance in the legal process....

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Use It or Lose It When Pursuing Personal Deficiency Judgments

April 6, 2016      |      Charles A. Walgreen, Esq.   

On June 5, 2015, the First District of the Illinois Appellate Court issued its decision in LSREF2 Nova Investments III, LLC v. Michelle Coleman, relating to breach-of-note actions following a mortgage foreclosure. The decision impacts how all mortgage lenders in Illinois should pursue personal deficiency judgments....

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Use It or Lose It When Pursuing Personal Deficiency Judgments

April 6, 2016      |      Charles A. Walgreen, Esq.   

On June 5, 2015, the First District of the Illinois Appellate Court issued a decision relating to breach-of-note actions following a mortgage foreclosure. The decision impacts how all mortgage lenders in Illinois should pursue personal deficiency judgments....

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Congress Extends Foreclosure Relief for Servicemembers on Active Duty through 2017

March 23, 2016      |      Larry R. Rothenberg, Esq.   

On March 21, 2016, the U.S. House of Representatives passed the "Foreclosure Relief and Extension for Servicemembers Act of 2015." The original legislation provided servicemembers protection from foreclosure for nine months after their active duty terminated; it was later extended to one year, but only through 2015. The new bill will make the 12-month period applicable again through 2017, after which time, if Congress takes no other action, it will return to nine months....

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Mortgage Servicer Successfully Wields Bona Fide Error Defense Against FDCPA Claim: Would Your Procedures Hold Up, Too?

March 22, 2016      |      Larry R. Rothenberg, Esq.   

A mortgage servicer servicing loans for another entity is generally subject to the Fair Debt Collection Practices Act (FDCPA), which imposes liability for communications to a borrower containing false, deceptive or misleading representations. The FDCPA affords a narrow carve-out to the general rule of strict liability: The "bona fide error" defense, as construed by the courts, is designed to protect against liability for genuine errors such as clerical or factual mistakes. (The defense is not available for mistakes of law or misinterpretations of the FDCPA's requirements.) To successfully assert this defense, a debt collector must establish all three of the following conditions; that the violation: (1) was not intentional; (2) was the result of a bona fide error; and (3) occurred despite the maintenance of procedures reasonably adapted to avoid the error. A recent federal district court case illustrates a winning application of the bona fide error defense. The borrower had filed a class-action suit against both the servicer and the owner of the loan, based on the servicer having sent two monthly billing statements which did not reflect credit for the amount recovered from a completed foreclosure sale, and after the debt had been discharged in bankruptcy....

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