Access to Utility Service: 7.2.2.4 DELETED—Consumption-Based Discounts
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As noted in NCLC’s Home Foreclosures,438 courts have the authority to consider Younger abstention only if the state court case falls within one of three categories.
As noted in NCLC’s Home Foreclosures,451 if a state court case falls within one of the three categories to which Younger abstention may apply, then the court should still take the second step of evaluating whether the three criteria set forth in Middlesex also app
State court eviction or foreclosure proceedings involve only private parties, and RESPA, TILA, and other consumer-based claims do not generally challenge a state’s enforcement efforts. Therefore, these cases should not be held to implicate important state interests under Younger.460 Accordingly, some federal courts have enjoined state courts from proceeding with foreclosure actions.
The Younger abstention doctrine prevents a federal court from issuing declaratory or injunctive relief that would interfere with certain types of pending state proceedings. This doctrine grows out of the 1971 Supreme Court decision, Younger v.
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.
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.
The most common sources of documents are: the homeowner; the lender or owner of the loan; the settlement agent; the title insurance company; the broker; the servicer; and the registry of deeds or other public office where security interests are recorded.
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 loan documents should be reviewed in all foreclosure cases for preconditions that may be necessary before commencing an action against the lender and for indications of abusive lending or other claims in the origination of the loan that may provide significant remedies.
One reason for the shift from credit insurance to debt protection products is the relative lack of regulation of debt protection products.
The “right to enforce” a negotiable note under U.C.C. § 3-301 is distinct from the “ownership” of a note. The owner of the note and the holder of the note can be different entities. The note’s owner, sometimes referred to as the note’s “beneficiary,” is the party ultimately entitled to receive the proceeds of payment on the note. When the holder and owner are different entities, there is typically a contractual relationship between the two parties. The contract gives the note holder the authority to enforce the note.
This section discusses the subset of electronic consumer credit contracts that are secured by real property.
In 2010, Congress directed the Consumer Financial Protection Bureau to create “a single, integrated disclosure” form combining the existing HUD-1 settlement statement and TILA disclosure form.758 In 2011, the CFPB embarked on an extensive project to fulfill this Congressional mandate.
Section 1026.19(e) contains the rules governing timing, waiting periods, shopping, a list of providers, predisclosure imposition of fees, the good faith standard, estimates, and changed circumstances, and related rules governing the early disclosures, now named the “Loan Estimate.” These rules are discussed at §§ 4.4.7.2.1,
Regulation Z § 1026.19(f) contains the rules governing timing, waiting periods, imposition of fees for preparation and delivery of the disclosures, estimates, changed circumstances, and permitted changes between the early and final disclosures, and related rules governing the final disclosures, now named the “Closing Disclosure.” These rules are discussed at §§ 4.4.7.4,
Disclosures in variable rate transactions must be given for the full term of the transaction and must be based on the terms in effect at the time of consummation.1226 However, in a seller buydown that is reflected in the credit contract or in a consumer buydown, the official interpretations give special rules for disclosing a composite annual percentage rate.1227
State Odometer Statute: Ala. Code § 8-19-5(15) (UDAP)
Prohibited acts: Disconnect, turn back, replace, or reset the odometer of any vehicle to reduce mileage indicated with intent to deceive.
Private civil remedies: Greater of actual damages or $100, or treble the actual damages upon certain conditions; costs and attorney fees.
State Odometer Statute: Alaska Stat. §§ 45.50.471(b)(18), 45.50.561
Prohibited acts: Disconnect, turn back or reset the odometer of a vehicle to reduce the mileage indicated.
Scope: Trade or commerce.
Persons protected: Any person who suffers loss of money or property.
State Odometer Statute: Ariz. Rev. Stat. Ann. § 44-1223
Prohibited acts: (1) Advertise for sale, sell, use or install any device which causes an odometer to inaccurately register mileage driven; (2) Operate a vehicle with a disconnected or nonfunctional odometer on a street or highway; (3) Replace, disconnect, turn back or reset an odometer with intent to reduce mileage indicated; (4) Sell or offer to sell a vehicle whose odometer does not register the true mileage driven, with intent to defraud.