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Truth in Lending: E.3.2.6 Temporary Restraining Order

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

[CONSUMER]

Plaintiff

v.

LONG BEACH MORTGAGE COMPANY, WASHINGTON MUTUAL, and AIM FINANCIAL, INC.

Defendants

TEMPORARY RESTRAINING ORDER

In accordance with the Opinion issued on this date:

Truth in Lending: F.2 Sample First Set of Interrogatories

This set of interrogatories is based on interrogatories prepared by consumer law practitioners in several different cases.2 It is designed to be directed to both the original creditor and an assignee. If only one is sued, the questions should be edited accordingly. The original creditor is identified as “Original Creditor” and the assignee as “Assignee,” but those terms should be replaced by their actual names.

Truth in Lending: F.4 Sample Fair Credit Billing Act Interrogatories

A version of these interrogatories in Microsoft Word format is available at this treatise’s digital version under “Pleadings and Discovery.”54

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

SAMUEL N. PLAINTIFF

Plaintiff

v.

FLEET CREDIT CARD SERVICES L.P.

Defendant

FIRST SET OF INTERROGATORIES

Truth in Lending: F.6 Sample Consumer Leasing Act Interrogatories

This discovery is based on documents provided by Michael Donovan, David Searles, and Cary Flitter, all Pennsylvania attorneys with consumer law practices.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

BRIAN S. SMITH, MICHAEL PARKER and MICHELLE PARKER, h/w on behalf of themselves and all others similarly situated Plaintiffs

Plaintiff

v.

NISSAN MOTOR ACCEPTANCE CORP.

Defendant

CLASS ACTION

JURY TRIAL DEMANDED

Truth in Lending: F.7 Sample Consumer Leasing Act Request for Production of Documents

This discovery is based on documents provided by Michael Donovan, David Searles and Cary Flitter, all Pennsylvania attorneys with consumer law practices. It is based on the particular facts of a case and must be adapted by a competent professional for use in other cases. A version of this request in Microsoft Word format is available as online companion material to this treatise.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

Collection Actions: KANSAS

Has state opted out of federal bankruptcy exemptions? Yes, except as to 11 U.S.C. § 522(d)(10) (benefits, alimony, support, maintenance, certain pensions and similar payments). Kan. Stat. Ann. § 60-2312.

Is opt out limited to residents or domiciliaries of the state? Not specified. Kan. Stat. Ann. § 60-2312: “[N]o person, as an individual debtor under the [Bankruptcy Code], may elect exemptions pursuant to [§ 522(d)].”

Do state’s exemptions have extraterritorial application?

Collection Actions: KENTUCKY

Has state opted out of federal bankruptcy exemptions? No. Ky. Rev. Stat. Ann. § 427.170 (West).

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: No. Ky. Rev. Stat. Ann. § 427.060 (West) applies to “real or personal property . . . that such debtor or . . . dependent . . . uses as a permanent residence in this state.”

Collection Actions: MISSISSIPPI

Has state opted out of federal bankruptcy exemptions? Yes. Miss. Code Ann. § 85-3-2.

Is opt out limited to residents or domiciliaries of the state? Yes. Miss. Code Ann. § 85-3-2: “Residents of the State of Mississippi shall not be entitled to the federal exemptions . . . [in § 522(d)].”

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Collection Actions: OKLAHOMA

Has state opted out of federal bankruptcy exemptions? Yes. Okla. Stat. tit. 31, § 1(B).

Is opt out limited to residents or domiciliaries of the state? Yes. Okla. Stat. tit. 31, § 1(B): “No natural person residing in this state may exempt from the property of the estate in any bankruptcy proceeding the property specified in [§ 522)d)] . . . .”

Do state’s exemptions have extraterritorial application?

Collection Actions: OREGON

Has state opted out of federal bankruptcy exemptions? No. Or. Rev. Stat. § 18.300.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Yes. See In re Stratton, 269 B.R. 716 (Bankr. D. Or. 2001) (Oregon homestead exemption applied to property in California).

Personal property: Probably yes, based on In re Stratton, 269 B.R. 716 (Bankr. D. Or. 2001).

Collection Actions: PENNSYLVANIA

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: No exemption.

Personal property: Uncertain.

Wages: 23 Pa. Cons. Stat. § 3703; 42 Pa. Cons. Stat. § 8127.

Scope: Wages, salaries and commissions of individuals. 42 Pa. Cons. Stat. § 8127.

Collection Actions: VERMONT

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Yes. See In re Oliver, 182 B.R. 699 (Bankr. D. Vt. 1995) (debtor may use Vermont homestead to exempt proceeds of sale of property in another state).

Personal property: Uncertain.

Collection Actions: VIRGIN ISLANDS

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Wages: V.I. Code Ann. tit. 5, §§ 521, 522.

Collection Actions: WISCONSIN

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Probably not. Wis. Stat. § 815.18(5) provides: “A resident is entitled to the exemptions provided by this section. A non-resident is entitled to the exemptions provided by the law of the jurisdiction of his or her residence.”

Truth in Lending: Introduction

This appendix contains two sample rescission notices. The first, Appendix D.1, is an example of a relatively bare-bones TILA rescission notice, which is all that the statute requires.1 Some practitioners prefer to provide the creditor with much more information. The second, Appendix D.2, is an example of a rescission notice in a foreclosure rescue scam case. In this type of case, it is recommended to give the rescuer some explanation as to why the sale is in fact a loan covered by TILA.

Truth in Lending: D.1 Sample TILA Rescission Notice

VIA FIRST CLASS MAIL AND CERTIFIED MAIL,

RETURN RECEIPT REQUESTED

No. XXXXXXXXXXXXX

[Date]

Ben Benny

Benny’s Mortgage Company

Suite 130, Monterey Building

102 West Broadway

Tucson, Arizona 85701

RE: Homeowner, Mitchell and Martha

Account No. 00000000000

Transaction between Homeowners and Benny’s Mortgage Company dated November 12, 2014, involving a loan and mortgage secured by residential property at [address]

Dear Mr. Benny:

Truth in Lending: D.2 Sample TILA Rescission Notice in Foreclosure Rescue Scam Case

VIA FIRST CLASS MAIL AND CERTIFIED MAIL,

RETURN RECEIPT REQUESTED

No. XXXXXXXXXXXXX

[Date]

Ben Benny

Benny’s Homesavers, Inc.

123 Scammers Row

Gotcha, US 66666

RE: Smith, John and Mary

Account No. 123456

Transaction between Homeowners and Benny’s Homesavers, Inc. dated November 12, 2014, involving a sale-and-leaseback transaction involving residential property at [address]

Dear Mr. Benny:

Home Foreclosures: Introduction

This appendix is a summary of state laws governing the foreclosure of condominium and homeowner association assessment liens. It describes the method of foreclosure, the scope of the lien, required notices, permitted fees and interest, and the right, if available, to challenge the lien. It also describes the right of the unit owner to redeem the condominium unit after a sale.

Home Foreclosures: Alabama

Ala. Code §§ 35-8-1 to 35-8-22 (Condominium Ownership Act); §§ 35-8A-101 to 35-8A-417 (Uniform Condominium Act)

Applicability: The Uniform Condominium Act, Ala. Code §§ 35-8A-101 to 35-8A-417, applies to condominiums created after January 1, 1991. With limited exception (see §§ 35-8A-302(a)(10), 35-8A-315), the provisions of the Uniform Condominium Act summarized below also apply to condominiums created before the effective date.