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Mortgage Servicing and Loan Modifications: 3.3.9.3.3 Compliance with requests for identity of mortgage owner

The Dodd-Frank Act added section 2605(k)(1)(D) to RESPA, which requires a servicer to respond within ten business days to a borrower’s request for the identity, address, and other relevant contact information about the owner or assignee of a mortgage loan.460 The CFPB implemented this provision by making such requests generally subject to the requirements for requests for information under Regulation X § 1024.36.

Consumer Arbitration Agreements: 2.6.1 Introduction

It is a complex question whether a party can take an interlocutory appeal of a judicial order concerning the enforcement of an arbitration requirement. The answer depends on whether the order is from federal or state court, whether the order denies enforcement of an arbitration clause or enforces it, and whether the court acts by dismissing the case or by staying the litigation or by ordering arbitration.

Consumer Arbitration Agreements: 2.6.2 Interlocutory Federal Appeals of Orders Denying Arbitration

Section 16(a) of the Federal Arbitration Act (FAA) permits appeals from: district court orders refusing to stay litigation in favor of arbitration under FAA section 3;140 orders denying petitions to compel arbitration under FAA section 4;141 interlocutory orders sustaining in whole or in part injunctions against arbitration;142 and any other order with respect to arbitration that is a “final decision.”

Consumer Arbitration Agreements: 2.6.3.3 Is Court’s Action a Stay or a Dismissal?

Green Tree168 recognized, in dicta, that FAA section 16(b)(1) prohibits an appeal if the district court enters a stay of litigation instead of dismissing all claims.169 But the availability of an immediate appeal should turn on whether a court’s order staying litigation pending arbitration is functionally a final order, even if it is styled as a stay of litigation.

Consumer Arbitration Agreements: 2.6.3.6 Petitions for Writ of Mandamus

Even though there is typically no appellate jurisdiction of appeals from federal court orders compelling arbitration and staying proceedings, some consumers have had success petitioning for a writ of mandamus from the appellate court. A writ of mandamus is an exceptional remedy awarded at the discretion of the appellate court. Typically, it is not available solely because the district court has committed error. Rather, the party seeking the writ must also establish, among other things, that the error cannot be remedied after appeal from a final judgment.

Consumer Arbitration Agreements: 2.6.5.1 The Consumer’s Appeal

Rules regarding appeals from arbitration orders may be more favorable to workers and consumers in the state courts than they are in federal court under FAA section 16 for appeals from federal courts.188 States will often follow the federal rule and allow for an immediate appeal after the plaintiff’s case is dismissed.189 Courts in some states allow the plaintiff to take an immediate appeal of an or

Consumer Arbitration Agreements: 2.6.5.3 Deadlines to Appeal

When states do permit immediate appeals of orders denying or compelling arbitration, make sure to check the state’s procedural rules for the relevant timeline for filing a notice of appeal.200 Not only companies but consumers and workers may face risks if they fail to seek interlocutory appeal of an order compelling arbitration when it is available.

Consumer Arbitration Agreements: 2.7.1 General

An emerging and unsettled issue in the class certification context is whether a class action may be certified even if some members of the class might have agreed to arbitrate their claims against the defendant on an individual basis. The enforceability of “class waivers” is discussed in § 8.7.6.1, infra.

Consumer Arbitration Agreements: 2.7.2 The Burden Is on the Defendant

Requiring potential class members to prove the absence of an affirmative defense in order to be part of a class not only inverts the burden of proof, which lies with the defendant, but places the burden on parties who frequently do not have access to the relevant evidence. In effect this requirement makes it harder for plaintiffs to join together in a class than it would be for those plaintiffs to win on the merits of their claims.208

Consumer Arbitration Agreements: 2.7.4 Formation of Arbitration Agreement After Filing of a Class Complaint

An issue that often arises when the defendant has an ongoing relationship with a putative class of consumers or workers is what happens when a defendant attempts to enter into arbitration agreements with putative class members before a class has been certified. A defendant clearly cannot attempt to obtain an arbitration agreement from a named plaintiff without going through the plaintiff’s counsel, as doing so would amount to communication with a represented party.

Mortgage Servicing and Loan Modifications: 2.10.8.5 Application of Payments to Late Charges

Assuming the servicer has correctly imposed and calculated a late charge, there will also be a question of how that charge should be paid off. For delinquent loans, the uniform security instrument is somewhat confusing as to whether late fees may be paid while principal and interest payments remain outstanding. The 2001 version of the security instrument says “payments shall be applied to each Periodic Payment in the order in which it became due. Any remaining amounts shall be applied first to late charges . . .

Mortgage Servicing and Loan Modifications: 2.11 Challenges for Successors in Interest

It can be particularly challenging to prevent a foreclosure when the owner inherited a home or was awarded it in a divorce. Often these homeowners were not the original borrower on the mortgage loan but have lived in the house for years, or even decades. These homeowners are called “successors in interest” or “successors” because they succeeded to ownership of the home after a death or family breakup.

Mortgage Servicing and Loan Modifications: 2.14 Credit Reporting Issues

Almost any mortgage servicing error, such as the misapplication of payments or improper force-placed insurance, can eventually lead to incorrect credit reporting.294 Other problems arise in servicers’ reporting of short sales and loan modifications. Post-bankruptcy reporting of home mortgage loans is also an area fraught with error.295 Even borrowers who have fully paid off their loans have experienced credit reporting issues.

Credit Discrimination: 12.4.2.2 National Bank Act and OCC Preemption of State Credit Discrimination Statutes

It is implicit in a 2009 Supreme Court decision that federal banking laws and OCC regulations do not preempt the application of state credit discrimination statutes to national banks and federal savings and loan associations. In Cuomo v. Clearing House,122 the Court held that states could enforce non-preempted state laws. The Court assumed that state credit discrimination statutes as applied to national banks were valid and not preempted by the National Bank Act.

Student Loan Law: 3.5.1 Introduction

There are five repayment plans tied to a borrower’s income: (1) the Income-Based Repayment (IBR) plan; (2) the Income-Contingent Repayment (ICR) plan; (3) the Pay As You Earn (PAYE) plan; (4) the Saving on a Valuable Education (SAVE) plan—which is an updated and more generous version of the Revised Pay As You Earn (REPAYE) plan—and (5) the Income-Sensitive Repayment (ISR) plan. With the exception of the rarely-used ISR plan, all of the income-driven repayment (IDR) plans work in a similar way.

Student Loan Law: 3.5.2 Brief History of IDR Plans

The Income-Contingent Repayment (ICR) plan was a precursor to the more recently developed IBR, PAYE, REPAYE, and SAVE plans. It was designed not only to benefit low-income borrowers, but also, according to Senator Kennedy in 1993, to “provide borrowers with a variety of repayment plans, including an income-contingent repayment plan, so that borrowers[’] . . .

Student Loan Law: 3.5.3.1 Generally

Because IBR, PAYE, and REPAYE/SAVE are similar and share a number of terms, all three plans are discussed together in this section, with differences in terms flagged. Income-Based Repayment (IBR) went into effect on July 1, 2009. Congress amended the IBR statute to provide for a more generous repayment formula (sometimes referred to as “New IBR”) for borrowers who take out loans after July 1, 2014. Then, in December 2012, the Department implemented PAYE, which was designed to accelerate implementation of the more generous repayment formula.