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Mortgage Servicing and Loan Modifications: 11.7.2.4 How Courts Have Applied Younger in Foreclosure and Post-Foreclosure Eviction Cases

State court eviction or foreclosure proceedings involve only private parties, and RESPA, TILA, and other consumer-based claims do not generally challenge a state’s enforcement efforts. Therefore, these cases should not be held to implicate important state interests under Younger.460 Accordingly, some federal courts have enjoined state courts from proceeding with foreclosure actions.

Mortgage Servicing and Loan Modifications: 11.7.5.1 Overview

Under the Rooker-Feldman doctrine, a federal court lacks subject matter jurisdiction over a claim that is the functional equivalent of an appeal from a state court judgment.506 The doctrine arose from two cases. In Rooker v. Fidelity Trust Co.,507 the plaintiff’s federal suit asked for a declaration that a state court judgment was null and void.

Mortgage Servicing and Loan Modifications: 11.1 Introduction

This chapter provides general guidance on litigating foreclosure and mortgage servicing related claims and defenses. The chapter is intended to be used in conjunction with all the chapters in this treatise, which discuss substantive and procedural defenses to foreclosures. In addition, advocates should consider substantive claims related to mortgage servicing, which are covered in this treatise.

Mortgage Servicing and Loan Modifications: 11.2.2.3 Storing Documents

Documents in mortgage lending cases may come from a number of different sources. In addition, what is not included in a set of documents may be more important than what is included. For this reason, document handling procedures and chain of custody issues are important should a case go to trial.

Home Foreclosures: 2.2.5.2 The Distinction Between a Holder and the “Owner” of the Note

The “right to enforce” a negotiable note under U.C.C. § 3-301 is distinct from the “ownership” of a note. The owner of the note and the holder of the note can be different entities. The note’s owner, sometimes referred to as the note’s “beneficiary,” is the party ultimately entitled to receive the proceeds of payment on the note. When the holder and owner are different entities, there is typically a contractual relationship between the two parties. The contract gives the note holder the authority to enforce the note.

Truth in Lending: 5.11.2.1 Overview

In 2010, Congress directed the Consumer Financial Protection Bureau to create “a single, integrated disclosure” form combining the existing HUD-1 settlement statement and TILA disclosure form.758 In 2011, the CFPB embarked on an extensive project to fulfill this Congressional mandate.

Truth in Lending: 5.11.2.7.1 Introduction

Section 1026.19(e) contains the rules governing timing, waiting periods, shopping, a list of providers, predisclosure imposition of fees, the good faith standard, estimates, and changed circumstances, and related rules governing the early disclosures, now named the “Loan Estimate.” These rules are discussed at §§ 4.4.7.2.1,

Truth in Lending: 5.11.2.8.1 Overview; format requirements

Regulation Z § 1026.19(f) contains the rules governing timing, waiting periods, imposition of fees for preparation and delivery of the disclosures, estimates, changed circumstances, and permitted changes between the early and final disclosures, and related rules governing the final disclosures, now named the “Closing Disclosure.” These rules are discussed at §§ 4.4.7.4,

Truth in Lending: 5.12.2.4 General Variable Rate Disclosure Rules

Disclosures in variable rate transactions must be given for the full term of the transaction and must be based on the terms in effect at the time of consummation.1226 However, in a seller buydown that is reflected in the credit contract or in a consumer buydown, the official interpretations give special rules for disclosing a composite annual percentage rate.1227

Truth in Lending: 10.4.1 Overview

The statute501 and Regulation Z502 clearly contemplate that the consumer has an extended right to rescind when required rescission information and forms or the enumerated “material” disclosures503 are not properly delivered.

Fair Credit Reporting: 9.2.5.1.2 Effect of a block

Once the CRA has received this information, the CRA must block the identified items from the consumer’s file within four business days.172 The CRA must also notify the furnisher of the blocked information about the block, that the information may have resulted from identity theft, and an identity theft report has been filed.173 These duties are in addition to a CRA’s duty to conduct its own “reasonable reinvestigation” to determine the accuracy or completeness of its reporting.

Fair Credit Reporting: 9.2.7.2.2 Scope: Application to “creditors”

In a guidance document interpreting these regulations, the FTC indicated that the red flag guidelines requirement applied not only to lenders, but other entities who could be considered “creditors” under the Equal Credit Opportunity Act (ECOA)288 including “professionals, such as lawyers or health care providers, who bill their clients after services are rendered.”289 Legislators became concerned that these businesses would be overburdened by the requirement to have red flag guidelines.