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Collection Actions: 2.3.10 Client Intake Checklist

This checklist provides information that the attorney should obtain in the first client interview or through other means. The checklist is also available online as companion material to this treatise (see under Practice Tools).

Client Information

Collection Actions: 2.4.1 Introduction

Whether or not an attorney takes a consumer’s case, the attorney can offer basic advice concerning minimizing the impact of the debt collector’s postjudgment remedies. This advice will have immediate utility if a default or other judgment has already been entered and can also educate the consumer as to the stakes involved in defending a collection action pro se, as well as the steps to take to avoid the worst consequences of losing the case.

Collection Actions: 2.1.5 Reason #5: Alleviation of Emotional Distress

Being sued can be extremely upsetting for some clients, particularly older and vulnerable consumers. Some may never have been sued in their whole lives and can become very distressed over a suit, even for a relatively minor debt. That distress can have medical consequences, which can be accentuated when the consumer cannot obtain legal representation to explain to them what is happening and to defend the consumer’s interests.

Collection Actions: 2.1.9 Reason #9: Development of Expertise and a Name in the Community

Attorneys report very good results representing consumers in collection actions, particularly those brought by debt buyers. Many attorneys build on this success to develop expertise defending against collection actions. That capability in turn enhances one’s reputation as a consumer attorney among judges, other attorneys, and the community at large, thus leading to increased referrals of other collection cases and also other consumer law matters.

Collection Actions: 2.9.2.2 Settlement Language Requiring the Debt Collector to Completely Remove Disputed Debt from the Credit Report

A settlement of the debt can include a provision requiring the collector to seek to clean up the consumer’s credit report. Reproduced below is a sample settlement provision that requires the creditor to withdraw the entire report of the disputed debt. This withdrawal is sometimes referred to as a “hard delete.” The credit record will then be altogether silent about the debt and will not even provide a basis for another creditor, interested in the creditworthiness of the consumer, to inquire further. This approach is often the simplest solution for the consumer and the safest.

Collection Actions: 2.9.2.3 Settlement Language Requiring Debt Collector to Withdraw Only Adverse Information from the Credit Report

Sometimes the consumer wishes to keep information about an account in the credit report to show a history of payments and only wishes to delete adverse information supplied about the account. To accomplish this goal, the settlement provisions must carefully delineate what information cannot be furnished to an agency because it might be construed unfavorably to the client. Relevant sample settlement language is found below.

Collection Actions: 4.2.1 Introduction

This section focuses on three forms of evidence collectors commonly use: the consumer’s admissions, affidavits, and business records. This section provides merely an overview of the subject as it relates to collection actions. It does not replace a thorough knowledge of a state’s rules of evidence. The discussion should also be supplemented with review of general treatises on evidence.

Collection Actions: 4.2.4.5 The Consumer’s Discovery As to the Affiant’s Knowledge

When the collector brings a summary judgment motion and appends business records and an affidavit to authenticate them, the consumer may wish to question whether the affiant has sufficient knowledge as to how those records were created and kept. Federal Rule of Civil Procedure 56(d) and comparable state rules allow the consumer to ask the court to allow discovery of these facts. Nevertheless, the court has discretion whether to allow such discovery and, in any event, deposing an out-of-state affiant may be expensive.

Collection Actions: 4.2.4.6 Consumer Authentication of Creditor’s Business Records

At trial, the collector may seek to avoid bringing in a witness to authenticate business records by trying to have the consumer do so. This can be avoided if the consumer is not in court and has not been timely subpoenaed to attend. Even if consumers are in court, the consumers should state that they are not familiar with how the records were created, do not have their own copies of records in their possession, and do not recall whether any copies they did receive are exact copies of the records the collector is asking them to authenticate.

Home Foreclosures: 8.8.1 Introduction

Mandatory arbitration clauses are less pervasive in mortgage loans than in other consumer transactions, but they may still be found in certain older mortgage loans or related documents. For example, arbitration clauses were common in mortgage loans consummated before 2004—Freddie Mac stopped purchasing mortgages subject to mandatory arbitration as of August 1, 2004, and Fannie Mae stopped purchasing such mortgages effective October 1, 2004.

Home Foreclosures: 4.2.1 The Servicer Foreclosing As Agent for the Owner or Holder of the Loan

When a servicer seeks to foreclose as the agent for the owner or holder of the loan, the servicer must meet two basic tests. First, the servicer must act on behalf of a principal that has the right to enforce the obligation.3 Second, the principal must have delegated authority to the servicer to perform the particular activity in question.4 Servicers may fall short on either count.

Home Foreclosures: 4.2.2 The Servicer Foreclosing As the Holder of the Loan

A number of factors affect whether a mortgage servicer may foreclose or conduct certain foreclosure-related activities in its own name. In judicial proceedings, the concepts of standing and real party in interest, discussed above in relation to foreclosures generally, apply to the servicer acting as the foreclosing party.14

Home Foreclosures: 4.3.1 Introduction

As noted in § 4.2, supra, the right of servicers to foreclose on behalf of lenders may be governed by state statutes, including the Uniform Commercial Code, agency law, and the contracts between the servicers and the parties possessing the right to foreclose.

Home Foreclosures: 4.3.2.1 Generally

If Fannie Mae commences a foreclosure in its name, it must meet the same standing requirements as other parties in judicial foreclosure states. These requirements are discussed in §§ 2.2 and 3.3, supra.

Home Foreclosures: 4.3.3.1 Generally

If Freddie Mac commences a foreclosure in its name, it must meet the same standing requirements as other parties in judicial foreclosure states. These requirements are discussed in §§ 2.2 and 3.3, supra.

Home Foreclosures: 4.3.3.2 Freddie Mac’s Version of Fannie Mae’s “Phantom Transfer” Provisions

Since April 24, 2014, Freddie Mac’s Seller/Servicer Guide includes a version of Fannie Mae’s phantom transfer of the notes from the custodian to the servicer. Freddie Mac, however, uses the phrase “constructive possession.”120 In Freddie Mac’s case, the servicer may request either “actual or constructive possession” of the note by completing and signing Form 1036.121 If the servicer requests actual possession, the custodian must promptly deliver the note.

Home Foreclosures: 4.4.2 The Unreliability of MERS Records

Consumers contacting MERS’s toll-free telephone number or utilizing its public website will only learn the name of their mortgage servicer.173 To the extent that MERS provides information about the owner of a loan, the information is dependent on servicer input, and often unreliable.

Home Foreclosures: 4.4.3 MERS Holds No Right to Payment

In discussing MERS role in foreclosures one cardinal point cannot be emphasized enough. MERS has no right to payment of the amounts due under a note. What is typically understood to be the “beneficial” interest in a mortgage, the right to collect payments and enforce the obligation—is exactly the interest MERS consistently disavows. Much of the confusion over MERS role has arisen from the boilerplate language in MERS’s security instruments, particularly deeds of trust. These define MERS as the “beneficiary” under the deed of trust.

Home Foreclosures: 4.4.4 MERS Prohibits Conduct of Foreclosures in Its Name

Prior to 2011, MERS member entities often conducted foreclosures in the name of MERS. In non-judicial foreclosures it was a common practice for the foreclosing party to serve and record documents listing MERS as the foreclosing entity and to conduct the foreclosure sale in the name of MERS. In judicial foreclosures, MERS would be named as the plaintiff party. The case caption might designate MERS as acting on behalf of the beneficiary of the loan. However, in many instances the pleadings and related documents identified only MERS as the foreclosing party.

Home Foreclosures: 4.5.1 Court Decisions Barring MERS from Foreclosing

MERS’s 2011 change in policy did not occur in vacuum. MERS was reacting to an increasing number of court decisions holding that valid foreclosures could not take place in MERS’s name. Particular state statutes and court rules often played a critical role in these decisions. The courts focused on two points regarding MERS’s role. One was MERS’s status as solely a nominee without any interest in the underlying debt obligation. The other was MERS’s purported role as a common agent designated to act on behalf of all MERS members.