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Federal Deception Law: 6.3.4.2 Analyzing a Dialer’s “Capacity”

The TCPA’s requirement of consent for calls made with an ATDS does not focus on how the device produced, stored, or dialed the particular telephone number that was called, but rather requires that the device have the “capacity—(A) to store or produce numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”175

Federal Deception Law: 6.3.4.3.1 A predictive dialer is likely to use a random or sequential number generator to store or produce telephone numbers to be called

Most pre-Facebook interpretations of the role of a random or sequential number generator in the ATDS definition focused on whether the resulting telephone numbers themselves were random or sequential numbers. However, when read carefully, the statutory definition does not include such a requirement. The definition only requires that the device use a random or sequential number generator to store or produce telephone numbers to be called. In other words, the numbers that are randomly or sequentially generated need not be the telephone numbers themselves.

Federal Deception Law: 6.3.4.3.3 Legislative history and the purpose of the TCPA’s autodialer restriction

Callers might object to this interpretation on the basis that the Facebook decision refers to the sequential number generator portion of the ATDS definition as targeted toward equipment that ties up multiple lines of a business simultaneously,210 which might imply that a device is an ATDS only if it produces consecutive telephone numbers. However, the Court never represented this concern as the only problem that the restrictions on autodialers were intended to address.

Mortgage Servicing and Loan Modifications: 8.2.1 Overview

The National Housing Act requires lenders to engage in loss mitigation upon the default or imminent default of an FHA-insured mortgage.5 While the Department of Housing and Urban Development (HUD) does not guarantee an alternative for foreclosure for every FHA-insured borrower, lenders must review all loans for possible alternatives to foreclosure.6 A lender may proceed to foreclosure only after ensuring that it has met all of its servicing obligations and the loan is at least three months past due.

Mortgage Servicing and Loan Modifications: 12.3.6.1 Overview

The Department of Housing and Urban Development (HUD) has provided expanded relief for borrowers who have Federal Housing Administration (FHA)-insured loans and face COVID-19 hardships. As with its standard loss mitigation program, HUD generally makes COVID-19 policy updates through mortgagee letters, which communicate program updates to servicers. HUD periodically incorporates its COVID-19 updates into Handbook 4000.1. However, this section will cite to the mortgagee letters.

Mortgage Servicing and Loan Modifications: 8.2.2.1 Generally

FHA’s loss mitigation program has evolved dramatically, both in terms of the available options and the eligibility rules. Advocates will continue to represent borrowers who have been denied under former rules or who have defaulted on loan modifications made through poorly designed and obsolete programs. In litigation, lender attorneys routinely mention borrowers’ past failures in order to excuse their clients’ noncompliance.

Mortgage Servicing and Loan Modifications: 8.2.2.2 The Role of HUD’s Single Family Housing Policy Handbook

In order to address this confusion and provide a clear source for its guidance, in 2014, HUD began drafting its Single Family Housing Policy Handbook, which included a section on default servicing.24 HUD intended the handbook to consolidate previous policy and provide a comprehensive guide. However, HUD’s initial draft on default servicing left off important, previously issued HUD guidance and did not address common issues that arise in the default servicing process, which other loss mitigation protocols cover.

Mortgage Servicing and Loan Modifications: 8.2.3.4 FHA-HAMP Calculation Examples

The best way to illustrate the FHA-HAMP calculation is through examples. Below are three examples that are variations on an initial fact pattern stated up front. For each example, assume that the waterfall directs the borrower to FHA-HAMP and that all other eligibility requirements (owner-occupied, hardship, origination, among other things) are satisfied. Assume also that the borrower has never received a previous loan modification or partial claim.

Mortgage Servicing and Loan Modifications: 8.2.6 Refinance Programs

Streamlined Refinance: The discussion above focused on options for borrowers in default. Borrowers who are current on an existing FHA-insured loan may be able to refinance with a new FHA-insured loan and reduce monthly payments through the streamline refinance option.242 The new FHA-insured loan may be made by the original lender or a different lender who participates in the FHA insurance program.

Mortgage Lending: 9.6.1 Generally

There are a number of different factors affecting the maximum interest rate a lender may charge on a mortgage loan. Certain loan programs, at the state or federal level, may have specific rules.

Mortgage Lending: 9.2.2 State Opt-Out of FHA and VA Loan Preemption

States may opt out of the preemption of state law for FHA and VA insured loans. A state can opt out of FHA preemption by enacting a statute after December 21, 1979, that limits interest, points, or other charges for such loans.35 The opt-out applies to loans extended after the state statute’s enactment. But one court has held that this opt-out relates to the FHA cap on interest rates and not to the FHA definition of interest.36

Mortgage Lending: 9.2.3 Relationship of FHA and VA Preemption to DIDA Preemption of Manufactured-Home Loans

The removal of state interest ceilings on manufactured-home loans insured by the FHA and VA intersects with the manufactured home provisions of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDA).45 DIDA preempts interest rate ceilings on first lien manufactured-home loans only on the condition that the manufactured-home lenders comply with federal banking agency consumer protection regulations.46 However the Eleventh Circuit, in Doyle v.

Mortgage Lending: 9.6.4 Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act sets a six percent cap on interest rates for certain debts owed by military servicemembers. The cap applies to any debt incurred before the servicemember enters active duty and for which payments are due while the servicemember is on active duty.212 Mortgages as well as other obligations are covered.213 Interest in excess of six percent must be forgiven, not just deferred.214