Mortgage Lending: NORTH CAROLINA
N.C. Gen. Stat. § 53-244.110; N.C. Gen. Stat. §§ 53-255 to 53-272 (Reverse Mortgage Act)
Definition and Scope
N.C. Gen. Stat. § 53-244.110; N.C. Gen. Stat. §§ 53-255 to 53-272 (Reverse Mortgage Act)
Definition and Scope
N.D. Cent. Code § 35-01-05.2; N.D. Admin. Code 75-02-02.1-28
Definition and Scope
There is no explicit definition of “reverse mortgage.”
Origination
Authorized Lenders: No applicable law.
Disclosures: No applicable law.
Application and Approval: No applicable law.
Ohio Rev. Code Ann. §§ 1349.25, 5163.32 (West); Ohio Admin. Code 5160:1-3-05.5
Definition and Scope
Reverse mortgage excluded from definition of “consumer credit mortgage loan transaction” for purposes of consumer credit mortgage loan statute. For purpose of statute “reverse mortgage transaction” has the same meaning as in section 152(a) of the “Home Ownership and Equity Protection Act of 1994,” 108 Stat. 2190, 15 U.S.C. 1602 and the regulations adopted thereunder. § 1349.25.
Okla. Stat. tit. 14A, §§ 1-301(18), 3-309.5
Definition and Scope
Or. Rev. Stat. §§ 86A.100, 86A.195, 86A.196; Or. Admin. R. 461-145-0330
Definition and Scope
“Reverse mortgage” means a residential mortgage transaction in which the lender provides loan proceeds to a borrower in a lump sum or in monthly installments with the expectation that the borrower will repay the loan from the proceeds of a sale or transfer of the real property that secures the loan. § 86A.196.
Origination
7 Pa. Cons. Stat. § 6126(7); 73 Pa. Cons. Stat. § 201-7(a); 10 Pa. Code §§ 49.1 to 49.3 (Reverse Mortgages Statement of Policy)
Definition and Scope
This Guideline addresses improper communications from defendants to class members.1 The issue has arisen most often when a defendant tries to undermine the class by picking off class members.2 Common ways defendants attempt to do so include trying to convince class or punitive class members to: (1) opt out, (2) release their claims, (3) enter into out-of-court settlements, or (4) compromise their factual situations in some way.3 In one case, a defe
Class counsel should generally oppose confidentiality agreements in connection with class action litigation and class settlements.
Although the law varies among jurisdictions, generally the public has a First Amendment and common law right of access to court records. The default rule is that documents filed in court are not confidential. Only if the party seeking confidentiality can meet the high bar for sealing court records is confidentiality appropriate.
Class counsel must bear in mind the critical importance of impressing on their named-plaintiff clients that individuals who accept the role of class representative have more at stake than their own claims. The representative takes on a fiduciary responsibility to the class.
Defendants sometimes make settlement offers or offers of judgment under Federal Rule of Civil Procedure 68 to a named plaintiff in an effort to defeat a putative class action.
Competing class actions seldom result in benefits to class members as a whole. Before filing suit, class counsel should attempt to learn of any existing cases and communicate with counsel in the other cases. Class counsel should encourage joint litigation of related lawsuits, both in discovery and in settlement:
Determining best practices when there are overlapping or competing class actions presents difficult issues. When multiple class actions are pending, with different counsel, a settlement in one case may preclude continued prosecution of claims in another case. The potential for damage to class members’ interests is significant.
Coupon settlements should rarely be used.64
The use of coupon class action settlements in which relief to class members is made in the form of coupons redeemable on future purchases from the defendant, sometimes to the exclusion of any cash to the class members, was a contentious issue in the 1990’s into the 2000’s. Their misuse, including in situations where plaintiffs’ counsel claimed entitlement to a fee for a percentage of the coupons issued (not redeemed), was one of the concerns behind the 2005 passage of the Class Action Fairness Act which, in 28 U.S.C.
Counsel must adhere to the highest possible standards of advocacy and ethical conduct when proposing distribution of monetary damages through cy pres settlement provisions.
Courts have widely adopted the use of cy pres in class actions as a means to distribute money belonging to the class, where distribution to individuals is not feasible.70 Forcing the defendant to disgorge undeserved profits is an important goal of a consumer class action, and cy pres, appropriately used, advances that goal.
Reversion of remaining settlement or judgment funds to a defendant is seldom appropriate.
A defendant may seek a provision in a settlement agreement requiring reversion of leftover money. Reversion to the defendant is almost never appropriate because it undermines a key purposes of class actions—forcing disgorgement of income from a defendant’s unlawful practice.
Courts typically approve monetary service awards for class representatives to recognize their willingness to represent absent class members, actively participate in the litigation, and assume potential personal and financial risk for being associated with the litigation.
Courts routinely approve service awards to compensate class representatives for their efforts on behalf of the class.90 Class representatives contribute to the litigation in ways that unnamed class members do not; for example, providing valuable facts during the initial case investigation, providing written discovery responses and producing documents, being deposed, allowing access to their homes or personal property, serving as witnesses at trial, and participating in settlement negotiations.91
A class action settlement agreement’s release-of-claims provision should:
A class action settlement should generally release only class claims alleged in the complaint. Settlements that release non-certified or non-pleaded claims raise concerns about both procedural unfairness and substantive inadequacy. The procedural fairness concern is that class members may not have had notice of the added-on claims at the time they had the right to exclude themselves from the class (and declined to exercise that right).
Notice of a proposed class action settlement should use simple, plain language that describes the salient aspects of a class, including the settlement terms. Notice should be provided in both summary and full forms.136