Consumer Banking and Payments Law: 5.1.5.3.4a.2 Are transfers to purchase or sell crypto assets exempt from the EFTA?
The Commodity Futures Trading Commission (CFTC) has taken the position that some crypto assets are commodities.
The Commodity Futures Trading Commission (CFTC) has taken the position that some crypto assets are commodities.
Whether or not an access device was lost or stolen, the consumer’s liability is potentially unlimited if unauthorized charges are not reported within sixty days of the statement (or longer in certain situations). That unlimited liability, however, only applies to charges after the applicable reporting deadline, and only if they could have been prevented with timely notice.
In general, the EFTA’s provisions governing unauthorized transfers only impose duties on financial institutions that hold the accounts from which the transfer is made and on service providers that provide access devices for those accounts.871 The unauthorized use provisions do not address the payee that initiated or received the unauthorized transfer.
The institution is prohibited from imposing a fee or other charge upon the consumer for the investigation if a billing error has occurred, even if the error occurred in a different amount or manner than was alleged by the consumer.930 This includes any charge related to the investigation or to documentation, and also any fee for contacting customer service to inquire about a transaction or assert an error.931
In some cases, an EFT may be made through a platform or device provided by one institution, but is debited from an account at another institution. For example, a consumer may link their PayPal account to their bank account.
Ramirez acknowledges that “traditional tangible harms,” such as physical injury and loss of money, are concrete.1639 In every EFTA case it is important to undertake a thorough evaluation of any tangible losses that the violation caused.
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[Editor's note: This subsection has been deleted.]
Where an enforceable arbitration agreement forecloses class arbitration, class action litigation in court, and individual court litigation, adequate client representation may require raising the consumer’s claims in an individual arbitration proceeding. While this is not preferred, under some circumstances consumers may achieve good results, particularly if the selected arbitrator has an open mind on consumer claims.
Where an arbitration clause prohibits class-wide arbitration, an arbitrator is unlikely to allow such relief, and a court would almost certainly overturn a class-wide arbitration award. Most, but not all arbitration clauses prohibit class-wide relief—some are silent on the issue.
After several years of continued advocacy by consumers and servicers concerning the significant problems and denials due to MOE deadline issues, HUD substantially revised its policy with the issuance of Mortgagee Letter 2019-15 on September 23, 2019. Like the prior versions of the MOE, Mortgagee Letter 2019-15 gives lenders the option to assign the loan to HUD and allows an eligible non-borrowing spouse to remain in the home.
Definition and Scope
There is no explicit definition of “reverse mortgage.”
Origination
Authorized Lenders: No applicable law.
Disclosures: No applicable law.
Application and Approval: No applicable law.
Cooling Off Period: No applicable law.
Section 2.5 of this manual discusses the creation and transfer of electronic notes secured by real property.268 Topics covered include the foreclosing party’s burden to establish that an electronic note exists and that it is the party with authority to enforce the electronic note.
State statutes mandating foreclosure-related notices to borrowers are typically clear in defining the content of a required written notice and how it must be served. For example, a New York statute requires a ninety-day notice to the borrower before a lender can commence a judicial foreclosure.279 The notice must contain a prescribed text explaining how the New York foreclosure process works and describe steps the homeowner can take to avoid foreclosure.
An area of tension more likely to arise could involve foreclosure notices that are purely contract-based and not mandated by statute. The most important of these is the “paragraph 22” notice of default and right to cure that has been a staple term of the GSE standard security instrument for decades.
Prior to 2021, the GSE standard security instrument did not authorize service of notices, such as the paragraph 22 notice of default, by electronic means. For pre-2021 loans, any attempt to serve the notice electronically would have no effect.
Definition and Scope
There is no explicit definition of “reverse mortgage.”
Origination
Authorized Lenders: No applicable law.
Disclosures: No applicable law.
Application and Approval: No applicable law.
Cooling Off Period: No applicable law.
Definition and Scope
There is no explicit definition of “reverse mortgage.”
Origination
Authorized Lenders: No applicable law.
Disclosures: No applicable law.
Application and Approval: No applicable law.
Cooling Off Period: No applicable law.
(a) Issuance of regulations; exemptions. The Bureau is authorized to prescribe such rules and regulations, to make such interpretations, and to grant such reasonable exemptions for classes of transactions, as may be necessary to achieve the purposes of this chapter.
1. Record retention. As required by § 1024.38(c)(1), a servicer shall maintain records that document actions taken with respect to a borrower’s mortgage loan account until one year after the date a mortgage loan is discharged or servicing of a mortgage loan is transferred by the servicer to a transferee servicer.
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
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
Courts determine the enforceability of an arbitration clause unless there is a clear and unmistakable delegation to the arbitrator of the determination of arbitrability.