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Written by John Wright
August 24th, 2012
So what did you think of yesterday’s breaking news about JPMorgan Chase and WaMu? - Source article Basically, from what I understand, a homeowner challenged the fact that JPMorgan Chase legitimately owned their loan. JPMorgan represented they purchased it from the FDIC in connection with the failure of WaMu, however, the operations unit manager and mortgage officer for JPMorgan Chase, who was previously with WaMu and was picked up by JPMorgan Chase after WaMu’s failed basically testified there were NO ASSIGNMENTS AND ALLONGES to prove that JPMorgan actually purchased these loans. That would suggest that JPMorgan is stealing people’s homes — just like we think all the banks are.
This is a perfect example of what I have been trying to tell all of you about here. THEY CAN’T USUALLY PROVE WHO THE OWNER OF THE DEBT IS! Why? Basically because they sold them in loan pool that had something like 10,000 other loans mixed in with your loan. This — at the end of the day — would end up RESEMBLING ONE BIG FUCKING GIGANTIC HOT DOG where they are unable to identify which pig and chicken made up which part of the hot dog your loan is in. THAT MEANS THEY CANNOT FORECLOSE ON YOUR HOME!
The unfortunate thing is that it appears that our federal government might be allowing these banks to steal people’s homes because the federal government itself is a bank. This is after you consider that Fannie and Freddie are run by the federal government. What does that mean? That means that the United States Government itself might have been probably engaging in the same exact inappropriate and illegal behavior of buying and selling of loans – which incidentally — they are probably also unable to prove who the actual owner of the debt because there is mulitiple trusts existing from these BIG GIGANTIC FUCKING HOT DOGS they bought with our tax money. Yet they want to talk to us about worrying about a moral hazard if they give people a principal rate reduction. (rolling my eyes)
That is why I was not surprised when I found out that Bank of America actually supports the hot dog business.
That is why I say EVERYONE should file a unfair debt collection lawsuit against their bank. — disclaimer This would make them have to come into court to PROVE WHO OWNS THE DEBT. I have heard that you would not even need an attorney to do this. (smirk)
The Fair Debt Collection Practices Act (FDCPA) has long been ignored by the mortgage servicing and foreclosure industry, which have thought of the law as designed to arrest the abusive behavior of bill collectors, such as the late night phone calls and the harassing letters to the debtor’s place of business. In fact, it is a law whose impact is beginning to be felt throughout the mortgage industry. The FDCPA is a federal law, first enacted in 1977. For years, the FDCPA was enforced through litigation by consumers that was outside the context of the mortgage foreclosure. However, the FDCPA’s expansive language, as well as recent court decisions have led more industries, such as lawyers and mortgage services, to examine whether they are subject to the provisions of the FDCPA. The answer is that they often are. This article will discuss who is subject to the provisions of the FDCPA, and if subject thereto, what the compliance requirements are, and finally, what the penalty provisions for violation of the FDCPA are.
There are some gray areas in the applicability of the FDCPA, but it is indisputably the law that a mortgage debt and those trying to collect upon it, in the correct circumstances, can be subject to the FDCPA. The Act applies only to debts that were incurred primarily for “personal, family or household purposes, whether or not [a debt] has been reduced to judgment.” This means that the character of the debt, i.e., consumer or non consumer, is determined by the use to which the money loaned is put. For instance, monies loaned (and secured by a deed of trust) that are invested in a business or used to purchase a commercial strip center or apartment dwelling would represent a non-consumer debt and not be subject to the FDCPA. However, if the borrower used the loaned monies to purchase his personal residence or for other personal expenses, the debt would be a consumer debt subject to the Act
Note that the character of the debt, consumer or nonconsumer, is not determined by the type of property that is secured by the deed of trust. For example, the borrower could borrow against a commercial strip center and use the proceeds to buy groceries. Although, the commercial center is, of course, a commercial enterprise, the loaned monies were used for personal purposes and the debt is, therefore, subject to the FDCPA.
As a practical matter, of course, mortgage services and trustees will find it insufferably burdensome to have to determine the original use of the loan proceeds in every foreclosure situation. Good practice, therefore, would be to assume that all mortgage loan debt is consumer debt, unless there is certain knowledge to the contrary.
The next question for purposes of determining the applicability of the FDCPA is to ascertain whether the person communicating with the debtor is a “debt collector.” The FDCPA defines debt collector as a person engaged in a business with the principal purpose of collecting debts or who “regularly collects or attempts to collect, directly or indirectly, debts owed to another.” Whether you fall within the definition is crucial. If you are considered a debt collector, you are subject to all of the requirements and restrictions of the FDCPA.
The application by the courts of who is a debt collector under this definition has been growing over time. For instance, in a case decided on April 18,1995, the United States Supreme Court held that lawyers who regularly collect consumer debts, even when their collection efforts are through litigation only, are debt collectors under FDCPA. Heintz v. Jerkins 95 Daily Journal D.A.R. 7134 (1995). Note that those organizations that collect on their own debts are not debt collectors (other than those persons whose business’ principal purpose is debt collection). Therefore, courts have held that lenders who foreclose on their mortgage loans are not debt collectors. Olroyd v. Associates Consumer Discount Co., 863 F.2d 23 7 (D.C., E D. Penn 1994).
Creditors who take an assignment of the debt while it is in default are generally considered to be subject to FDCPA as debt collectors. Therefore, mortgage services who receive a loan prior to default are not covered as debt collectors (Penny v. Stewart Elk Co., 756 F.2d 1197 (5th Cir., 1985); rehearing granted on other grounds, 7611 F.2d 237), but mortgage services who obtained the loan while it was in default are subject to the FDCPA as debt collectors [Games v. Cavazas, 737 F.Supp. 1368 (D.C., D. Del. 1990)]. Thus, the same servicer can be a debt collector for purposes of some loans and not others.
The author has not reviewed any court decisions holding that a trustee merely performing its statutorily required acts for a nonjudicial foreclosure sale is a debt collector. However, given the increasingly expensive view of the FDCPA taken by the courts, this may be an area of future litigation, and so trustees may be well advised to examine whether their practices are in accordance with the requirements of the FDCPA.
Often, if not in the majority of cases, the trustee handling a non-judicial foreclosure is substituted onto the deed of trust after the loan falls into default. In a sense, the trustee is analogous to the mortgage servicer who obtains a loan in default. The trustee might be considered by a court at least for some of its activities, as a debt collector for purposes of the FDCPA.
The FDCPA falls under the purview of the Federal Trade Commission (FTC). The FTC has promulgated Statements of General Policy and Staff Commentary on the FDCPA. In part of this commentary and particularly in other FTC staff interpretations, the FTC has stated that legally required communications to debtors in connection with judicial or non-judicial foreclosures are not “communications” within the meaning of the FDCPA. In particular, the interpretations by the FTC state that the preparation or non-judicial foreclosure notices are not debt collection activities under the Act.
Although the FTC’s comments may appear comforting to trustees, relying on the FTC’s comments may be a mistake. For instance, the FTC had taken a clear position that lawyers whose practice is limited to legal activities, are not subject to the FDCPA. The United States Supreme Court noted the FTC’s position recently in the Heintz case and specifically rejected it noting that the commentary is not binding on the FTC or the public, and the FTC’s interpretations did not properly express congressional intent as stated in the statute. Even if a court ultimately did determine that legally required communications, such as the notices of default, are not subject to the FDCPA, practically any other communications between the trustee and borrower might be covered.
Once subject to the FDCPA, a debt collector has several responsibilities and restrictions. In particular, the debt collector must give a so called “Miranda Warning” in every communication with the debtor. The warning must disclose clearly to the debtor that, “the debt collector is attempting to collect the debt,” and, “any information obtained will be used for that purpose.”
In addition to the Miranda Warning, there are general rules about communications.For instance, unless otherwise informed, the debt collector should assume that it is inconvenient to contact the debtor between the hours of 9:00 p.m. and 8:00 a.m. local time. Also, if the debt collector knows the name of the debtor’s attorney or can readily obtain his name and address, the creditor must communicate only with the attorney, and address all communications only to the attorney, unless the attorney fails to respond within a reasonable period of time or consents to direct communication with the debtor. In addition, the debtor may not be contacted at his place of employment if the debt collector knows or has reason to know that the debtor’s employer prohibits the debtor from receiving such communication. There are also a number of types of communications that are considered misleading.
The FDCPA also requires that a statement be included in the initial communication with the debtor (or within 5 days of the initial communication), providing the debtor with written notice containing the following:
- the amount of the debt;
- the name of the creditor to whom the debt is owed;
- the statement that, unless the consumer, within thirty (30) days after the receipt of the notice disputes the validity of the debt or any portion there of, the debt will be assumed to be valid by the debt collector;
- the statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt or any portion there of is disputed, the debt collector will obtain a verification of the debt or a copy of the judgment will be mailed to the consumer by the debt collector;
- a statement that upon the consumer’s written request within the thirty day period, a debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor
Violations of the FDCPA can be severely punished. The consumer has the right to bring its own lawsuit. If the debt collector is in violation of the FDCPA, he/she may be held liable for: (1) any actual damages sustained by the consumer (including damages for mental distress, loss of employment, etc.), and, (2) such additional damages as the court may allow, but not exceeding $ 1,000.
In the case of the class action, the court may award up to $500,000 or one percent of the debt collector’s net worth, whichever is less. The statute of limitations for bringing an action under the FDCPA is one year. Because a class action award could be a significant cost to a violating debt collector, the statute does have some punitive aspects. In short, because of the continually expansive view of the coverage of the FDCPA, trustees are well advised to consult with their own courts and determine whether they should implement comprehensive practices and procedures to comply with the Fair Debt Collection Practices Act. — source article
My name is John Wright AND I AM FIGHTING BACK!
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