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Tag Archives: Ninth Circuit

TILA Does Not Require a Loan Servicer to Identify the Loan’s Owner

Posted in Mortgage Foreclosures; Real Estate Settlement Procedures Act; Truth in Lending Act

The Ninth Circuit recently sided with a loan servicer who was sued by a borrower for failing to provide him with the loan owner’s information. In Gale v. First Franklin Loan Services et al., 686 F.3d 1055 (9th Cir. 2012), amended, 2012 U.S. App. LEXIS 18545 (9th Cir. Aug. 31, 2012), the Ninth Circuit held that a loan servicer is not required under the Truth in Lending Act (TILA) to disclose the owner of the loan obligation to the borrower even at the borrower’s request. The only exception is when the loan servicer is also the assignee-owner of the loan. 

The Plaintiff borrower in the case was Richard Gale. In November 2006, he refinanced his home mortgage loan with Franklin Loan Services (“First Franklin”). At the time, First Franklin was both the creditor and servicer of the loan. In June 2008, Gale lost his job, and consequently, he fell behind his mortgage payments. Seeking to renegotiate his loan, Gale sent a letter to First Franklin explaining his situation and offering solutions. In his letter, Gale also asked First Franklin for the identity of the “true owner” of his loan. First Franklin did not respond to Gale’s letter. Ultimately, Gale’s home was foreclosed when he continued to fall behind his mortgage payments. Gale subsequently sued First Franklin and others for violation of TILA, among others. The trial court dismissed the TILA claim, and the Ninth Circuit affirmed.

As it concerns the alleged violation of TILA, the issue before the Ninth Circuit was the last sentence of TILA, 15 U.S.C. section 1641(f)(2), which states, “Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name address, and telephone number of the owner of the obligation or the master servicer of the obligation.” The Court acknowledged that at first read, this sentence seems to apply to all creditors or servicers, but the Court ultimately rejected such a sweeping interpretation of the law. Instead, the Court noted that section 1641 does not apply to servicers in general, but only to “purchasers or assignees of mortgages.” Furthermore, the Court also held the section did not apply to an assignee merely for administrative convenience, as opposed to an assignee-owner of the loan obligation. As First Franklin was the original lender and merely the servicer, the Court held that the section did not apply to it. In reaching its conclusion, the Court examined section 1641 “as a whole before focusing on paragraph (f)(2)” and found that, contrary to what section 1641(f)(2)’s text may suggest, section 1641 is limited in scope to a servicer who is “an assignee of such obligation…” The Court also noted that the section further excluded an assignee “solely for the administrative convenience of the servicer in servicing the obligation.” The Court concluded that subsection (f) must be read “in keeping with the theme of § 1641 as a whole…” 

The Gale decision does not necessarily foreclose any relief to borrowers who find themselves in the same situation as Gale. As the Ninth Circuit pointed out, the 2010 amendment to the Real Estate Settlement Procedures Act (RESPA) required that all servicers must respond to a borrower’s request for information, although such requirement only applies prospectively from 2010. There may also be state law requirements that are broader than those required under TILA. For example, beginning January 1, 2013, California’s so-called Homeowners’ Bill of Rights comes into effect, which defines a “mortgage servicer” much more broadly than TILA’s section 1641. Thus, it is critical that owners of mortgage loans, lenders, and loan servicers are aware of the various other federal and state laws that may or may not require the same sets of obligations.

Ninth Circuit Dismisses Claims Under the CCRAA

Posted in Fair Credit Reporting Act; Preemption

In Carvalho v. Equifax Information Services, LLC, No. 09-15030, 2010 W.L. 3239477 (9th Cir., Aug. 18, 2010), the Ninth Circuit affirmed a lower court’s grant of summary judgment dismissing Plaintiff’s claims under the California Consumer Credit Reporting Agencies Act (“CCRAA”).

The Plaintiff alleged that three credit reporting agencies, Equifax Information Services, LLC (“Equifax”), Experian Information Solutions, Inc. (“Experian”) and Transunion LLC (“Transunion”), erroneously reported a debt on her credit report despite her requests for reinvestigation and correction of outstanding debt information provided to the agencies by Credit Consulting Services (“CCS”), a collection agency. CCS successfully filed a general demurrer alleging that the federal Fair Credit Reporting Act (“FCRA”) preempted the Plaintiff’s claims against it under the CCRAA. Defendant Equifax successfully removed the case to the District Court for the Northern District of California, claiming that the case met the $5 million amount-in-controversy requirement of the Class Action Fairness Act of 2005 (“CAFA”).

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Ninth Circuit Creates Split About the Meaning of the Word “Sue” as Used in the CROA

Posted in Credit CARD Act

The Credit Repair Organizations Act (CROA), found at 15 U.S.C. § 1679, was enacted to ensure consumers of services of credit repair organizations are provided with the information necessary to make informed decisions regarding the purchase of such services; and to protect the public from unfair or deceptive advertising and business practices by credit repair organizations. Section 1679c of the

CROA requires that credit repair organizations make certain written disclosures to consumers including that consumers have “a right to sue a credit repair organization that violates” the CROA. The CROA also contains a provision that voids any waiver by consumers of rights provided in the CROA. In a recent decision, Greenwood, et al. v. CompuCredit Corp., —F.3d—, 2010 WL 3222415 (9th Cir. Aug. 17, 2010)(Thomas, J.), the Ninth Circuit disagreed with decisions from other circuits about whether arbitration agreements between credit repair organizations and consumers are enforceable when a consumer sues for violations of the CROA. Specifically, there is now a dispute among the circuits about what the word “sue” means as used in the CROA. Does the word “sue” as used in Section 1679c create a right for consumers to sue in court; or does the word “sue” encompass dispute resolution through arbitration?

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Ninth Circuit Making Retroactive Application of TILA Regulations?

Posted in Truth in Lending Act

Pursuant to revisions to Regulation Z, effective July 1, 2010, a creditor cannot use the term “fixed” to describe an annual percentage rate (APR) “unless the creditor also specifies a time period that the rate will be fixed and the rate will not increase during that period, or if no such time period is provided, the rate will not increase while the plan is open.” 12 C.F.R. § 226.5(a)(2)(iii). While this new regulation cannot be applied retroactively in form, the United States Court of Appeals for the Ninth Circuit recently issued a decision (Rubio v. Capital One Bank) that constitutes a retroactive application in effect, despite the court’s express denial of doing same.

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Ninth Circuit Interprets the FDCPA

Posted in Fair Debt Collection Practices Act

In Donohue v. Quick Collect, Inc., Case No. 09-35183 (9th Cir. Jan. 13, 2010), the Ninth Circuit interpreted two sections of the Fair Debt Collection Practices Act (“FDCPA”) and held that a collections agency did not violate the FDCPA because the original payment terms between the appellant and her dental practice did not constitute a forbearance agreement under Washington State law. Additionally, the court held that the collections agency did not violate the FDCPA when it mislabeled the interest owed on the debt. The court found that the overall amount owed by the appellant was correct and, therefore, the mislabeled interest was not “materially false.”

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