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Unfair and Deceptive Acts and Practices: 5.4.11 Disparaging Competitors

It is unfair and deceptive to disparage the merchandise, services, or business of another by false or misleading representations.290 This can entail false statements about a competitor’s selling prices, business methods, credit terms, policies, financial condition,291 services,292 or overall product performance;293 use of misleading pictures, demonstrations, or comparisons;

Unfair and Deceptive Acts and Practices: 5.4.12 Impersonation of Government or Business

Scams involving impersonation of government entities and businesses are widespread, defrauding consumers of hundreds of millions of dollars a year.301 In 2022, the FTC proposed a Trade Regulation Rule to prohibit falsely posing as, or misrepresenting, one’s affiliation with a government entity, a business, or an officer of either.302 The proposed rule would also prohibit providing the means and instrument

Mortgage Servicing and Loan Modifications: 3.3.4.1 Generally

Effective January 10, 2014, a servicer is required to respond to any written request for information from a borrower that “states the information the borrower is requesting with respect to the borrower’s mortgage loan.”245 Unlike the earlier version of this regulation that applied to qualified written requests, the scope of an information request under Regulation X § 1024.36 is no longer tied solely to the concept of information that is “related to the servicing” of the loan.246 Rather, requests

Mortgage Servicing and Loan Modifications: 3.3.9.2.3 Reasonable investigation of error

Significantly, section 2605(e) is not simply a disclosure statute; it requires that servicers take affirmative action to investigate and correct a servicing error if an account dispute is asserted in a qualified written request or notice of error.434 By invoking the protections of section 2605(e), borrowers can challenge the misapplication of payments, improper evaluation of loss mitigation application, escrow overcharges, improper late fees or other charges, or any erroneous claim of default.435

Mortgage Servicing and Loan Modifications: 3.3.12 Pleading a Section 2605(e) Violation

A huge number of court actions were brought in response to the recent foreclosure crisis by unrepresented homeowners and inexperienced attorneys. This has produced numerous decisions, particularly from the U.S. District Courts, in which complaints alleging RESPA § 2605(e) violations were dismissed for failure to sufficiently plead the elements of the cause of action.

Mortgage Servicing and Loan Modifications: 3.5.3.2.3 Exemption if account is overdue or in foreclosure, or if borrower is in bankruptcy proceeding

Despite the mandatory language found in section 2609 and the lack of any statutory exemption, HUD has provided in Regulation X that a servicer need not provide the borrower with an annual escrow statement if the borrower is more than thirty days overdue at the time the servicer conducts the escrow analysis.639 This exemption also applies when the mortgage account is in foreclosure or when the borrower is in a bankruptcy proceeding.640 If the servicer does not provide an annual account statement

Mortgage Servicing and Loan Modifications: 3.8.7.6 Dual Tracking Restrictions After Initiation of Foreclosure

The servicer’s obligation to evaluate borrowers for all available loss mitigation options does not end once the servicer has made the first notice or filing of the foreclosure process. After taking the first step in the foreclosure process, the servicer may still be required to follow up on loss mitigation applications, attempt to finalize incomplete applications, and evaluate complete applications.

Mortgage Servicing and Loan Modifications: 3.11.2 Contractual Right to Notice of Violation and Opportunity to Cure

The Fannie Mae/Freddie Mac Single-Family Uniform Instrument contains a provision (section 20) that neither the borrower nor lender may “commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class)” against the other party alleging that the party “breached any provision of, or any duty owed by reason of,” the mortgage or deed of trust, without first giving the other party notice of the breach and a reasonable period to take corrective action.1491 Defendants in RESPA litigation have sought di

Mortgage Servicing and Loan Modifications: 3.12.2.1 Generally

The question of whether the plaintiff has standing to maintain an action in federal court is not typically raised in RESPA servicing actions seeking remedies under section 2605(f). This is because the challenges of pleading and proving a “pattern or practice” of noncompliance in order to obtain statutory damages under RESPA, as discussed below, means that plaintiffs generally do not bring RESPA actions seeking solely statutory damages.

Mortgage Servicing and Loan Modifications: 3.12.4.2 The “Pattern or Practice” Requirement

The availability of statutory damages is obviously limited by the evidentiary burden of showing a “pattern or practice” of noncompliance. It is conceivable that this requirement can be established through evidence of the servicer’s dealings simply with the named plaintiff in an action. In Ploog v. Homeside Lending, Inc.,1601 the plaintiff alleged that the servicer failed to respond to five separate qualified written requests she had sent to the servicer.

Unfair and Deceptive Acts and Practices: 6.9.1.4 Bank Fees

Older cases have held that excessive bank fees may be unconscionable.581 However, challenges to the size of bank fees are likely to be governed by permissive federal bank regulator guidances,582 by the law of the bank’s home state if the fee is deemed to be “interest,”583 or by parity laws that allow banks to charge the highest fee that any bank can charge.584 But imposing fees without authority, with

Unfair and Deceptive Acts and Practices: 10.4.4 Those Assisting Telemarketing Fraud

An FTC rule promulgated pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention Act declares it a deceptive act for a person to provide substantial assistance to a telemarketer while knowing or consciously avoiding knowledge that the telemarketer was violating the FTC rule.226 The FTC recognizes the following as examples of substantial assistance: providing lists of contacts to a seller or telemarketer that identify people who are over age fifty-five, have bad credit histories, or have been victimized previously by deceptive tel

Federal Deception Law: 4.3.5.1 General

There is significant consensus that a consumer’s recovery against a creditor for seller-related claims can include attorney fees.151 Ohio UDAP attorney fees are an exception to this rule, based on the fact that UDAP fees are available in Ohio only in the court’s discretion and only against sellers who intentionally violate the statute.152