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Jury Instructions, Drakeford v. Capital Benefit, Case No. 3:20-cv-04161-WHO (N.D. Cal. Mar. 25, 2022)

This is a jury instruction in a federal case in the Northern District of California concerning a homeowner's challenge to foreclosure practices, including violations of TILA, RESPA, FDCPA, the California debt collection statute, and breach of fiduciary duty.  The instructions include a number of general items of relevance to most consumer litigation and then instructions related to the homeowner's specific legal claims.  These instructions are mentioned in a decision favoring the homeowner in Drakeford v. Cap. Benefit, Inc., 2022 WL 2643984 (N.D. Cal.

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Complaint in Motter v. Synergetic Communications, Inc. (2023)

This is a 2023 FDCPA complaint that pleads facts to support constitutional Article III standing in federal court. The complaint specifies concrete injury from an invasion of privacy and the time and expense of having his attorney send defendants a letter.  The complaint was drafted by the Illinois firm of Philipps & Philipps and the Missouri firm of the Callahan Law Firm.

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Class Complaint in Mack v. Resurgent Capital Services (2023)

This is a 2023 FDCPA class class complaint dealing with a consumer disputing a debt and asking for verification.  When the account was collected by a second agency, the consumer's requests were ignored and a new letter was sent. The complaint was drafted by the Illinois firms of Philipps & Philipps and SMITHMARCO.

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Complaint in Holloway v. Firstsource Advantage (2023)

This is a 2023 FDCPA complaint that takes care to plead facts to support constitutional Article III standing in federal court. The complaint specifies the plaintiff's concrete injury from an invasion of her privacy, seclusion, and the right to counsel; from her emotional distress; and from the cost to her of additional time, money, and effort to assert her rights. The complaint was drafted by the Illinois firm of Philipps & Philipps.

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Verified Motion to Set Aside Default and for Leave to File an Answer and Affirmative Defenses (CIT Bank v. Delander)

This is motion to set aside a default judgment on a foreclosure action concerning a reverse mortgage and leave to file an answer and defenses. The excusable neglect is based on the homeowner’s age and cognitive difficulties.

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Amended Notice of Taking Deposition Duces Tecum (CIT Bank v. Lofton)

This is a notice of taking the Florida deposition of a corporate representative in a case involving an attempt to foreclose on a reverse mortgage based on non-occupancy where the property was in fact occupied, including a list of documents that the deponent should bring and be prepared to describe.

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Motion for Punitive Damages (Nationstar Mortgage v. Spencer)

This is a Florida motion to add a claim for punitive damages to existing counterclaims that allege various torts in a case where the lender attempted to foreclose on a reverse mortgage based on non-occupancy where the property was in fact occupied, where the lender should clearly have known the property was occupied.

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Notice of Taking Deposition of Corporate Representative (CIT Bank v. Lofton)

This is a notice of taking the Florida deposition of a corporate representative in a case involving an attempt to foreclose on a reverse mortgage based on non-occupancy where the property was in fact occupied, including a list of documents that the deponent should bring and be prepared to describe.

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Request for Admissions (NationStar Mortgage v. Thompson)

This is a request for admissions sent by a Florida homeowner to the reverse mortgage lender seeking the lender’s admission that the home was in fact occupied, despite the lender taking actions as if the home was unoccupied.

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Sample Affidavit of Occupancy

This is a sample affidavit stating that the homeowner is occupying a residence. This sample affidavit can be used to verify that the borrower is occupying the home in connection with a mortgagee’s acceleration of the debt or attempted foreclosure based on non-occupancy. It can be helpful to also attach any supporting documents, such as utility bills, to show that the property is occupied. The servicer may also want the borrower to sign their standard occupancy form.

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Answer and Counterclaims as to Reverse Mortgage (Reverse Mortgage Funding v. Miles)

This is a 2019 defense to a foreclosure action on a reverse mortgage and counterclaims by a class of consumers against the reverse mortgage lender, filed by Mehri & Skalet and Legal Counsel for the Elderly in Superior Court for the District of Columbia.  The reverse mortgage lender ignored the provision set out in the deed of trust and federal law that non-borrowing spouses are entitled to a deferral of due and payable status when the borrower spouse dies, as long as they continue living in their homes.  Claims involve breach of contract, bad faith, unclean hands,

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Reply Supporting Motion to Dismiss Cross-Claim (Reverse Mortgage Solutions v. HUD)

This is a case involving a pre-2014 reverse mortgage.  This is a reply pleading by HUD in support of its motion to dismiss the homeowner’s cross-claim against HUD in the Wilson case.  HUD’s initial brief and the homeowner’s reply brief are also included as a companion material to this treatise. The spouse of a now-deceased borrower on a HUD insured reverse mortgage challenged HUD’s pre-2014 reverse-mortgage insurance program requirements as either unlawful or arbitrary.

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HUD Memo Supporting Motion to Dismiss Homeowners' Cross-Claim (Reverse Mortgage Solutions v. HUD)

This is a case involving a pre-2014 reverse mortgage.  This is a reply pleading by the HUD in support of its motion to dismiss the homeowner’s cross-claim against HUD in the Wilson case.  HUD’s initial brief and the homeowner’s reply brief are also included as a companion material to this treatise. The spouse of a now-deceased borrower on a HUD insured reverse mortgage challenged HUD’s pre-2014 reverse-mortgage insurance program requirements as either unlawful or arbitrary.

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Homeowners' Response to HUD's Motion to Dismiss Crossclaim (Reverse Mortgage Solutions v. HUD)

This is a case involving a pre-2014 reverse mortgage.  This is the consumer’s pleading in Wilson in response to HUD’s motion the homeowner’s crossclaim against HUD. HUD’s brief and reply brief are also included as a companion material to this treatise. The spouse of a now-deceased borrower on a HUD insured reverse mortgage challenged HUD’s pre-2014 reverse-mortgage insurance program requirements as either unlawful or arbitrary and that the crossclaim is moot.

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Complaint, Spaulding v. HUD (N.D. Ga. Sept. 14, 2018)

This is a 2018 complaint brought by Atlanta Legal Aid against HUD in federal court in the Northern District of Georgia involving an APA challenge involving a pre-2014 HECM reverse mortgage.  The claim is that HECM regulations do not sufficiently protect surviving spouses who are not listed on a reverse mortgage, so as to allow the surviving spouse to stay in the home.

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Sample Allegations re Spouse's Title or Right to Remain

These two sample allegations could be added to a complaint challenging HUD’s pre 2014 MOE (mortgage option election) requirement that the spouse obtain good, marketable title or legal right to remain in the property within 90 days of the borrower’s death.

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Complaint, Morford v. Compu-Link Corp. (Cal. Super. Ct. Jan. 7, 2019)

This is a 2019 complaint filed by Legal Services of Northern California in California Superior Court involving a reverse mortgage.  Soon after the plaintiff’s husband’s death, the plaintiff applied to the creditor to stay in her home through the MOE (mortgage option election) program. However, defendants erroneously denied her application and instead started the foreclosure process. The complaint seeks to stop the imminent foreclosure sale and compel defendants to honor her MOE application and allow her to remain living in her home.

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Complaint for Wrongful Foreclosure (Morford v. Compu-Link Corp.) (with exhibits)

 This is a 2019 complaint filed by Legal Services of Northern California in California Superior Court involving a reverse mortgage.  Soon after the plaintiff’s husband’s death, the plaintiff applied to the creditor to stay in her home through the MOE (mortgage option election) program. However, defendants erroneously denied her application and instead started the foreclosure process. The complaint seeks to stop the imminent foreclosure sale and compel defendants to honor her MOE application and allow her to remain living in her home.

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Briggs v. Strategic Fin. Sols., No. 1:22-cv-03705 (N.D. Ill. July 18, 2022)

This is a class action complaint against a debt settlement organization that used the attorney model. It alleges common law fraud, violation of the Illinois Consumer Fraud Act, unjust enrichment, violation of the Illinois Rules of Professional Conduct (for attorneys), and the Illinois Debt Settlement Consumer Protection Act. The facts of the complaint provide an extensive description of how debt settlement operators attempt to evade laws regulating debt relief services by attempting to use attorneys as a front for their operations.

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Sweet v. Cardona, No. 3:19-cv-03674-WHA (N.D. Cal. July 25, 2022)

Defendants’ Consolidated Opposition to Motions for Intervention

This class action lawsuit presents a dispute between student loan borrowers and the U.S. Department of Education (“Department”) regarding the Department’s process for reviewing and adjudicating borrowers’ applications for the Department to relieve them of their loan repayment obligations based on the alleged misconduct of the schools they attended.

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Respondent's Brief, No. F085918 (Cal. Ct. App. Aug. 14, 2023)

The complaint asserts causes of action for fraudulent misrepresentation, fraudulent concealment, violations of the Consumers Legal Remedies Act, Civ. Code §1782 et seq.; the Elder Abuse and Dependent Adult Civil Protection Act, Welf. & Inst. Code §15600, et seq.; the Home Solicitation Sales Act, Civ. Code §1689.5 et seq.; Bus. & Prof. Code §7150 et seq.; and the Unfair Competition Law, Bus. & Prof. Code §17200 et seq. against both Appellants and a cause of action for violations of the Rosenthal Fair Debt Collection Practices Act, Civ. Code §1788 et seq.

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Career Colls. & Schs. of Tex. v. U.S. Dep’t of Educ., No. 23-50491 (5th Cir. Aug. 7, 2023)

IT IS ORDERED that Appellant’s Opposed Emergency Motion for Injunction Pending Appeal of the borrower-defense and closed-school provisions of a “Rule” governing student loan discharges, 87 Fed. Reg. 65904 (Nov. 1, 2022), is GRANTED.

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2023-06-19 TAC Discovery Dispute

Maine Attorney Thomas Cox representing the homeowner in a foreclosure case sent discovery to Deutsche Bank National Trust Co, as trustees for a trust holding the consumer's mortgage. The response from the trustee's attorney objected to much of the discovery.

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Complaint, Baptiste-Elmine v. Richland & Falkowski, PLLC (E.D.N.Y. Oct. 11, 2021)

First Amended Complaint filed Oct. 11, 2021, E.D.N.Y., by Rachel Geballe Brooklyn Legal Services.  

Claims against servicer and its law firm. FDCPA and UDAP claims, statute of limitation.

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Complaint, Rasmussen v. RRA Opportunity Trust (N.Y. Sup. Ct. Aug. 13, 2019)

This 2019 New York state court complaint seeks pursuant to New York law to cancel a home equity line of credit (HELC) mortgage and enjoin any action against the homeowner’s property because the statute of limitations has run after the creditor accelerated the HELC payments. In addition, the creditor failed to comply with federal requirements (the 2MP program) concerning modification of the first mortgage that should have extinguished the HELC.  The action is brought by Petroff Amshen LLP.

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Complaint, Defour v. United Asset Mgmt. (E.D. Va. Dec. 17, 2021)

Complaint filed Dec. 17, 2021,  E.D. Va. by Kristi Kelly. 

TILA  §1641(g) class claim against United on behalf of class of all consumers with loans assigned to United in past year who did not receive §1641(g) notice.  FDCPA claims under §§1692e & f  for foreclosing and claiming interest and fees not owed.  Contractual cure notice stated incorrect cure amount.  Breach of contract claim based on non-compliance with condition precedent (service of accurate notice) required by deed of trust.

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Complaint, Kumi v. United Asset Mgmt. (N.D. Ga. Dec. 3, 2021)

Complaint filed Dec. 3, 2021 N.D. Ga. by Rachel Scott Atlanta Legal Aid.   

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Complaint, Rivera v. Interstate TD Investments, L.L.C. (E.D. Pa. July 28, 2017)

First Amended Complaint dated July 17, 2017, E.D. Pa. by Joanne Werdel Community Legal Services Phila.  

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Complaint, Escobar v. Wilmington Savings Fund Soc. FSB (Bankr. D. Mass. 2021)

Adversary proceeding objecting to bankruptcy proof of claim, Bankr. D. Mass. 2021 by Roger Bertling Harvard Legal Clinic,  

Claims focused on origination. Seeks recoupment and set off to deny or reduce creditor claim.  2005 80/20 loan. Payments exceeded borrower income, no underwriting. Claims: (1) UDAP; (2) breach of covenant of good faith and fair dealing focused on foreclosing unconscionable loan without loss mitigation; (3) unconscionability.

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Complaint, Kobler v. PHH Mortg. Corp. (D.N.J. 2023)

Mishandling of loan modification implementation: RESPA NOE, pattern and practice, breach of contract, breach of covenant of good faith and fair dealing. Javier Merino.  

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Complaint, Markovski v. Community Loan Servicing L.L.C. (D.N.J. 2023)

Complaint.  Loss mitigation, trial plan and modification implementation. RESPA (NOE & RFI), UDAP, breach of contract, covenant of good faith and fair dealing, specific allegations of harm.  Javier Merino

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Complaint, Janice v. Truist Fin. Corp. (D.N.J. 2024)

Mishandling of modification, escrow disputes, deferral transition.  RESPA NOE.  Javier Merino.

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Qualified Written Request, Kumi to FCI Lender Servs. (Nov. 17, 2021)

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Complaint, Phouthachack v. Wilmington Sav. Fund Soc. (E.D. Cal. Jan. 25, 2021)

First Amended Complaint for Wrongful Foreclosure,  E.D. Cal. filed Jan. 25, 2021, by Evan Livingstone, Calif. Rural Legal Assistance. Home already foreclosed and sold to bona fide purchaser, action for damages only. Franklin is servicer for Wilmington. Notice of default and notice of sale did not list correct amount due on second mortgage. Six claims: (1) breach of contract against Wilmington.

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Discovery Requests, Davis v. The Money Source, Inc. (D. Conn. 2021)

Homeowner’s discovery requests (combined interrogatories and document requests) to defendant servicer. Loss mitigation, fees, property inspections. Jeff Gentes.  

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Complaint, Breen v. Midfirst Bank (D. Conn. May 2024)

Breen v. Midfirst Bank, D. Conn., Complaint May 2024  application of payments, escrow, UDAP, related Reg. X, and breach of contract. Lorraine Martinez Conn. Fair Housing

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Complaint, Tremalgio v. PHH Corp. (D. Conn. Apr. 2023)

Tremalgio v. PHH Corp., D. Conn. April 2023.  Complaint.  Loss mitigation-related UDAP, RESPA, harm related to implementation of loan modification  Jeff Gentes

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Class Complaint Concerning Sim Card Swaps, Bayani v. T-Mobile

This is a 2023 class complaint filed in the Western District of Washington that the mobile phone carrier failed to protect customers personal and financial information and that this resulted in a SIM card swapping scam, so that the scammer gained control of the customers’ phone number and phone account without gaining possession of the customer’s phone.  Claims against T-Mobile included negligence, negligent hiring and supervision, UDAP, violations of the Federal Communications Act, and other federal claims.

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Individual Complaint Concerning Sim Card Swaps, Terpin v. ATT Mobility

This is a 2020 individual complaint filed in the Central District of California that the mobile phone carrier failed to protect customers personal and financial information and that this resulted in a SIM card swapping scam, so that the scammer gained control of the customers’ phone number and phone account without gaining possession of the customer’s phone.  Claims against ATT included that the agreement and disclaimers were unconscionable and against public policy, deceit by concealment, misrepresentation, negligence, negligent hiring and supervision, breach of contract, and vi

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Individual Complaint Concerning Sim Card Swaps, Williams v. ATT Mobility

This is a 2019 individual complaint filed in the Eastern District of North Carolina that the mobile phone carrier failed to protect customers personal and financial information and that this resulted in a SIM card swapping scam, so that the scammer gained control of the customers’ phone number and phone account without gaining possession of the customer’s phone.  Claims against ATT included negligence, negligent hiring and supervision, the North Carolina Anti-Hacking statute, UDAP, and violations of the Federal Communications Act and the Computer Fraud and Abuse Act.

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Colburn v. Collection Professionals

This is a federal court complaint and various attachments filed by David Philipps or Palos Hills, Illinois, and Bradform Botes of Birmingham, Alabama on September 22, 2023,  in the Eastern District of Missouri alleging FDCPA violations involving failure to report that a debt is disputed (1692e(8)), and unfair or unconscionable collection actions (1692f).  The complaint also addresses federal court standing.

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Ebaugh v. Medicredit Inc.

This is a federal court complaint and various attachments filed by David Philipps and other attorneys of Philipps and Philipps of Palos Hills on August 31, 2023,  in the Eastern District of Missouri alleging FDCPA violations involving failure to cease communications and collections (1692c(c)), and communicating with a consumer represented by counsel (1692c(a)(2)). The complaint also addresses federal court standing.

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Gaskell v. Kinum, Inc.

This is a federal court complaint and various attachments filed by David Philipps and other attorneys of Philipps and Philipps of Palos Hills and John Steinkamp of Indianapolis, Indiana, on October 13, 2023,  in the Southern District of Indiana alleging FDCPA violations involving demanding a debt not owed (1692e), failure to cease communications and collections (1692c(c)), communicating with a consumer represented by counsel (1692c(a)(2)), and harassment or abuse (692d(2). The complaint also addresses federal court standing.

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Gilman v. TRS Recovery Services, Inc.

This is a federal court complaint  filed by David Philipps and other attorneys of Philipps and Philipps of Palos Hills on August 9, 2023,  in the Northern  District of Illinois alleging FDCPA violations involving  failure to cease collections of a dispute debt without providing validation (1692g(b)), failure to cease communications and collections (1692c(c)), false, misleading and deceptive statements (1692e),, and harassing or abusive practices (1692d). The complaint also addresses federal court standing.

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Brief, Baroni v. Wells Fargo Bank (9th Cir. Sept. 19, 2016)

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Request for Admissions, U.S. Bank v. McDowell (N.C. Super. Ct. June 10, 2015)

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Motion and Memo to Compel Deposition, Wigod v. Wells Fargo Bank (N.D. Ill. June 13, 2012)

Motion to compel Rule 30(b)(6) deposition (over loan modification review procedures) Wigod v. Wells Fargo Bank N.D. Ill. June 13, 2012 WIGOD, Finlinson and Finlinson, on behalf of themselves and all others similarly situated, Plaintiffs, v. WELLS FARGO BANK, N.A.

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Request for Documents, U.S. Bank v. McDowell (N.C. Super. Ct. June 19, 2015)