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Home Foreclosures: 3.2.1 Overview

When considering a claim or defense that involves the authority to foreclose, advocates need to obtain as much information as early as possible about who owns the homeowner’s note and who is the current assignee of the security instrument. Without formal discovery, finding out these facts may not be easy. In the past, public records were a reliable source of this information. Today, land records contain little useful documentation about ownership of mortgage loans.

Home Foreclosures: 8.4.1 Introduction

Whether an advocate is defending a foreclosure or bringing an affirmative case, there are often numerous potential parties against whom claims and defenses can be raised.

Home Foreclosures: 4.1 Introduction

This treatise often refers to the party conducting a foreclosure as the “lender.” We use this term for the sake of convenience. As discussed in prior chapters, the entity that originally lent the money to the homeowner is seldom the party that is foreclosing. An assignee or transferee has almost always stepped into the shoes of the original lender. A servicer then conducts the foreclosure, acting on behalf of an assignee or transferee whose rights flow from the original lender.

Home Foreclosures: 14.3.5 Recovery of Attorney Fees

Most condominium statutes provide that the prevailing party may recover attorney fees in actions to enforce the bylaws and/or declaration, to enforce provisions of the condominium act, or to collect assessments and fines.221 However, as with other issues in this area, because the law differs from state to state, a given state’s law should be consulted to determine under what particular circumstances a unit owner will be liable for attorney fees.

Fair Debt Collection: 7.4.13 Unlicensed Debt Collection

Thirty-two states require at least some debt collectors to be licensed, registered, or bonded.1281 Because section 1692e(5) of the FDCPA prohibits threats “to take any action that cannot legally be taken or that is not intended to be taken,” a threat of a collection lawsuit by a debt collector that is not licensed according to state law may violate that provision. The FDCPA § 1692e(5) violation is not that the collector is unlicensed, but rather that the lack of a proper license according to state law makes the threatened action unlawful.

Fair Debt Collection: 7.4.13a.2 FDCPA Claims Where Medical Debt Violates the Federal No Surprises Act

Effective generally for medical insurance plan years beginning on or after January 1, 2022, the federal No Surprises Act1299 protects consumers with private health insurance from surprise medical bills when they receive emergency services, non-emergency services from nonparticipating providers at participating health care facilities, and air ambulance services from nonparticipating providers of air ambulance services.

Collection Actions: 5.3.4.1 Generally

The default rule is that, absent an agreement or state law that makes spouses liable, consumers are not liable for their spouses’ debts.151 Nevertheless, state law does make spouses liable in certain situations, particularly in community property states. Other states also have “necessaries” laws making spouses liable in discrete contexts. Thus, even if a spouse is only an authorized user, that spouse may still be liable in some states and, in some situations, for their spouse’s debts.

Fair Debt Collection: 7.4.13a.3 Nursing Home Debt

Under the Nursing Home Reform Act, a nursing facility that participates in Medicaid, or a skilled nursing facility that participates in Medicare, may not request or require as a condition of a resident’s admission or continued stay that the facility receive a guarantee of payment from a third party, such as a relative or representative.1302 Contractual provisions that violate that prohibition are illegal and unenforceable.

Fair Credit Reporting: 14.1 Introduction

This chapter discusses practical advice and considerations regarding consumer reporting, including advice for consumers. While consumers justifiably are concerned about their credit record, sometimes this concern is misplaced and leads to improper choices.

Fair Credit Reporting: 14.2.1 Overview

Consumers should understand that certain uses of a consumer report are not allowed, while others are permitted even without the consumer’s knowledge or consent.

Fair Credit Reporting: 14.2.2 User’s Curiosity; General Publication in the Community

The FCRA prohibits an individual from obtaining a consumer report solely for curiosity, gossip, or to determine an individual’s general reputation.4 A person cannot seek a report for an impermissible purpose, and when someone obtains a report for a legitimate purpose (e.g., to evaluate a credit application), that person cannot then use the report for an impermissible purpose, such as to spread gossip about the applicant’s credit record.

Fair Credit Reporting: 14.2.3 Publication of Bad Debt Lists

Consumer reporting agencies cannot publish bad debt lists, because not every reader of a list will have a permissible purpose to obtain information on every individual on the list.6 Moreover, CRAs cannot publish bad debt lists of consumers where the consumers are identifiable to the public.

Fair Credit Reporting: 14.2.4 Divorce and Custody Proceedings, Tort Suits, Criminal Actions, Immigration Matters, and Other Litigation

There is generally no permissible purpose for a spouse or other individual to obtain a consumer report to help litigate a divorce or a child custody proceeding, or to aid calculation of a child support award.12 Creditors may have a permissible purpose in discovering the existence or outcome of such litigation, and a spouse may be able to obtain a consumer report to assist in collecting payment pursuant to an order or agreement establishing a creditor-debtor relationship with the other spouse.

Fair Credit Reporting: 14.2.5 Using a Consumer’s Credit History to Evaluate Other Family Members and Associates

The consumer’s report cannot be used when a spouse or other associate applies for insurance, employment, or for other non-credit matters.17 Where the spouse or other associate applies for credit, the consumer’s credit history can only be used where that person is relying on the consumer’s income or assets in the credit application, or where the consumer will be liable on the account.18 This exception allows the creditor to look at a spouse’s consumer report if: the applicant lives in a community pro

Fair Credit Reporting: 14.2.6 Dissemination of the Consumer’s Medical and Personal Information

Before a CRA can release medical information about a consumer for employment, credit, or insurance-related purposes, the CRA must obtain the consumer’s consent.25 The CRA can report information concerning payment of medical bills as long as the nature of the medical service is not revealed.26 Medical information can also be used to determine a consumer’s eligibility for special programs designed to meet the needs of consumers with medical conditions.27

Fair Credit Reporting: 14.3.1 Overview

A creditor or collection agency threat that nonpayment of a delinquent debt will ruin a consumer’s credit record is “a powerful tool designed, in part, to wrench compliance with payment terms.”29 However, consumers should not give great weight to such threats.

Fair Credit Reporting: 14.3.2 How Debts in Collection Are Reported

Most creditors subscribe to one or more nationwide consumer reporting agencies (Equifax, Experian, TransUnion), allowing the creditor not only to receive reports, but also to supply information to the CRA. Typically, information is reported in a standardized fashion each month by computer on all of the creditor’s accounts. The consumer’s file at a nationwide CRA is constantly updated with the current payment status, the amount owed, how many days a debt is delinquent, and what collection actions have been taken. This happens automatically.

Fair Credit Reporting: 14.3.3 False Threats to Report a Debt

Conversely, if a creditor does not subscribe to a nationwide CRA, it is highly unlikely that the creditor will respond to a consumer’s nonpayment by attempting to furnish that fact to a CRA with whom it is not associated, and the CRA is unlikely to accept the information from a nonsubscriber. Similarly, an independent collection agency hired by a creditor is unlikely to report information to a nationwide CRA just because the consumer does not respond to the debt collector’s collection attempts.