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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How IRS Form 982 Can Aid Financial Institutions with Debtor Settlements

February 24, 2016      |      Nicholas K. Rohner, Esq.   

For any financial institution seeking to negotiate with one of its debtors over a lump-sum settlement of the debtor's delinquent, unsecured debt,(1) one potential roadblock is IRS Form 1099-C. This form reports the amount of a debtor's debt that is forgiven or canceled, and although a debtor is unlikely to want any such debt to be taxed as income, financial institutions are required by law to issue this form. In light of these facts, the issue becomes how to keep debtors from walking away from a mutually beneficial settlement. One possible solution is IRS Form 982, which allows a debtor to exclude the amount canceled from his income up to the extent of his insolvency at the time the debt is settled....

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Obtaining a Cognovit Judgment in Ohio Requires Strict Adherence to Statutory Requirements

February 3, 2016      |      David S. Brown, Esq.   

Ohio Revised Code § 2323.13 outlines the procedure applicable to reducing a cognovit note to judgment. In order for the trial court to be vested with subject matter jurisdiction, three elements are required....

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An Update to Michigan's Creation of a Single, State-Wide Court Electronic Filing System

January 13, 2016      |      Jennifer T. Dillow, Esq.   

On December 22, 2015, Michigan Governor Rick Snyder approved a package of bills that will create and provide for the funding of a single, state-wide court electronic filing system. Taking effect January 1, 2016, the new law creates the Judicial Electronic Filing Fund within the Michigan Treasury, the purpose of which is to support the implementation, operation, and maintenance of the single, state-wide electronic filing system....

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Loss Mitigation Agreements and the Statute of Frauds

January 6, 2016      |      Larry R. Rothenberg, Esq.   

Getting an agreement in writing is a sure way to avoid misunderstandings regarding the terms of the agreement, or whether there actually was an agreement. In the real estate loan loss mitigation context, various types of agreements, such as loan modifications, short sales, and forbearance agreements, are common. The case of U.S. Bank vs. Stewart decided by Ohio's Seventh District Court of Appeals on December 28, 2015, illustrates the importance for both borrowers and loan servicers, of ensuring that loss mitigation agreements are in writing and signed by the other party, in order for the agreement to be enforceable under the Statute of Frauds....

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Death of an Ohio Survivorship Owner, and Due Diligence by the Mortgage Holder

December 29, 2015      |      Larry R. Rothenberg, Esq.   

The Court of Appeals for Hamilton County, Ohio, issued a decision on December 23, 2015, in direct contradiction to a decision rendered by the Court of Appeals for the adjacent Butler County a year earlier, on virtually identical facts. Both cases dealt with a mortgage holder's right to foreclose after the death of the sole signer of a mortgage on property owned jointly with a right of survivorship....

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