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Mortgage Servicing and Loan Modifications: 11.7.2.4 How Courts Have Applied Younger in Foreclosure and Post-Foreclosure Eviction Cases

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.

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.

Home Foreclosures: 2.2.5.2 The Distinction Between a Holder and the “Owner” of the Note

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.

Truth in Lending: 5.11.2.1 Overview

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.

Truth in Lending: 5.11.2.7.1 Introduction

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,

Truth in Lending: 5.11.2.8.1 Overview; format requirements

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,

Truth in Lending: 5.12.2.4 General Variable Rate Disclosure Rules

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

Truth in Lending: 10.4.1 Overview

The statute501 and Regulation Z502 clearly contemplate that the consumer has an extended right to rescind when required rescission information and forms or the enumerated “material” disclosures503 are not properly delivered.

Automobile Fraud: ALABAMA

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.

Automobile Fraud: ALASKA

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.

Automobile Fraud: ARIZONA

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.