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Mortgage Servicing and Loan Modifications: 11.7.5.1 Overview

Under the Rooker-Feldman doctrine, a federal court lacks subject matter jurisdiction over a claim that is the functional equivalent of an appeal from a state court judgment.506 The doctrine arose from two cases. In Rooker v. Fidelity Trust Co.,507 the plaintiff’s federal suit asked for a declaration that a state court judgment was null and void.

Mortgage Servicing and Loan Modifications: 11.1 Introduction

This chapter provides general guidance on litigating foreclosure and mortgage servicing related claims and defenses. The chapter is intended to be used in conjunction with all the chapters in this treatise, which discuss substantive and procedural defenses to foreclosures. In addition, advocates should consider substantive claims related to mortgage servicing, which are covered in this treatise.

Mortgage Servicing and Loan Modifications: 11.2.2.3 Storing Documents

Documents in mortgage lending cases may come from a number of different sources. In addition, what is not included in a set of documents may be more important than what is included. For this reason, document handling procedures and chain of custody issues are important should a case go to trial.

Mortgage Servicing and Loan Modifications: 11.9.2.1 Scope

The Truth in Lending Act (TILA), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), effectively prohibits forced arbitration of disputes involving closed-end loans secured by a dwelling and open-end loans secured by a consumer’s principal dwelling.187 TILA defines a residential mortgage loan as “a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the

Mortgage Servicing and Loan Modifications: 11.9.2.2 Two Separate TILA Provisions Limit Arbitration

In covered mortgage loans, TILA prohibits any terms that require arbitration or any other non-judicial procedure as the method for resolving any controversy or settling any claims arising out of the transaction (hereinafter referred to as the “(e)(1) provision”).197 The parties can agree to arbitration or a similar procedure at any time after a dispute or claim under the transaction arises.198

Mortgage Servicing and Loan Modifications: 11.9.2.4 Effective Date and Retroactive Application

There is no question that the TILA limitation on arbitration agreements in mortgage loans applies to any arbitration agreement entered into after June 1, 2013. This subsection considers the enforceability of arbitration agreements entered into before that date. Two issues are examined. First, whether the TILA requirement was effective as of June 1, 2013, or July 22, 2010. Second, whichever date is used, does the provision prevent the current enforcement of arbitration agreements entered into before the effective date?

Mortgage Servicing and Loan Modifications: 11.9.2.1 Scope

The Truth in Lending Act (TILA), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), effectively prohibits forced arbitration of disputes involving closed-end loans secured by a dwelling and open-end loans secured by a consumer’s principal dwelling.187 TILA defines a residential mortgage loan as “a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the

Mortgage Servicing and Loan Modifications: 11.9.2.2 Two Separate TILA Provisions Limit Arbitration

In covered mortgage loans, TILA prohibits any terms that require arbitration or any other non-judicial procedure as the method for resolving any controversy or settling any claims arising out of the transaction (hereinafter referred to as the “(e)(1) provision”).197 The parties can agree to arbitration or a similar procedure at any time after a dispute or claim under the transaction arises.198

Mortgage Servicing and Loan Modifications: 11.9.2.4 Effective Date and Retroactive Application

There is no question that the TILA limitation on arbitration agreements in mortgage loans applies to any arbitration agreement entered into after June 1, 2013. This subsection considers the enforceability of arbitration agreements entered into before that date. Two issues are examined. First, whether the TILA requirement was effective as of June 1, 2013, or July 22, 2010. Second, whichever date is used, does the provision prevent the current enforcement of arbitration agreements entered into before the effective date?

Mortgage Servicing and Loan Modifications: Introduction to Sample Pleadings

The digital version of this treatise includes under “Pleadings and Discovery” over 200 sample pleadings relating to injunction against sale, federally financed housing, RESPA, HOEPA, HAMP loan modifications, MERS, fraud and UDAP claims, land installment sales contracts, TILA rescission, servicing abuses, foreclosure rescue scams, bankruptcy, and other subjects. The pleadings include complaints, discovery requests, motions, briefs, proposed orders, and more.

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Veteran's Letter to VA Concerning Mortgage Foreclosure

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Sample Foreclosure Prevention Intake Form

This six-page intake form obtains client information concerning a threatened foreclosure:  basic information about the homeowner, the home, the mortgage, other mortgages and liens, an income budget, an expense budget, information on other debts and assets, and a comparison of income to expenses.

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Default and Delinquency Counseling Checklist

This checklist assists in foreclosure prevention counseling, setting out the various steps the counselor should follow.

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Sample Authorization to Release Information

This is a form that a homeowner can sign to authorize a housing counselor or attorney to obtain information about their mortgage loan from the mortgage servicer or other entity.