by Carol Lawson Esq | Feb 8, 2015 | Consumer Credit, Florida Foreclosures, Foreclosure
http://scholar.google.com/scholar_case?case=147641421521665296&hl=en&as_sdt=6&as_vis=1&oi=scholar
FL Fourth District, reversed a trial court’s dismissal of a mortgage foreclosure action, ruling that the testimony of a successor loan servicer’s records custodian was sufficient to lay a proper evidentiary foundation to admit payment records over the borrower’s lack of foundation and hearsay objections.
The Court’s rationale was the business records exception to the hearsay rule — that such documents have a high degree of reliability because businesses have a built-in incentive to make sure their own records are accurate records, because the businesses rely on them to operate. In the Appellate Court’s words, “[m]inor discrepancies in calculations, given the volumes of records transferred from one business entity to another, should not render business records of a successor servicer untrustworthy for purposes of laying a foundation for the business record exception given that the trustworthiness of the records has been established.”
Where a business acquires custody of another business’ records and makes them part of its own business records, the records become those of the successor business. For a current servicer to establish the business records exception for information transmitted by a prior servicer under § 90.803(6), the testifying witness must not only testify that the current servicer verified the information it received, but must also have knowledge of the prior servicers’ record keeping procedures. The Witness must show that the records are trustworthy by, for example, explaining that the business or contractual relationship between the two companies provides a substantial incentive for accuracy.
The successor servicer can also verify that the business records it acquired are trustworthy by stating that, in order verify the accuracy of information it receives in connection loan transfers, its employees go through the files, check them for accuracy and then contact the borrower.
The Court held that the mortgagee’s witness provided sufficient evidence of trustworthiness by testifying that the fourth servicer reviewed the prior servicer’s payment records for accuracy before integrating them into its records.
http://www.4dca.org/calendar/briefs/Jan%202015/1-13-15/13-3514%20Initial%20Brief.pdf
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
by Carol Lawson Esq | Feb 5, 2015 | Bankruptcy, Consumer Credit
The Seventh Circuit held that automated calls to a cell phone number that was formerly but is no longer, subscribed to by the customer violates the federal Telephone Consumer Protection Act, notwithstanding the consumer’s prior consent to be called at that number. The Court determined that under the TCPA, “called party” means the person subscribed to the number called at the time the call is made.
Keep of record log of these harassing calls with date, time, phone number and the name of the company and the person calling.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
by Carol Lawson Esq | Feb 5, 2015 | Consumer Credit
The Eighth Circuit held that a debt collector’s failure to report to a credit reporting agency that the borrower disputed the debt at issue did not constitute a false, deceptive, or misleading communication in violation of the FDCPA. The unsophisticated consumer standard was reviewed by the court and determined that it did not apply since the notice was not to the consumer but consumer reporting agency. Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814, 819 (8th Cir. 2012); Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002).
http://media.ca8.uscourts.gov/opndir/14/12/141164P.pdf
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
by Carol Lawson Esq | Sep 30, 2014 | Consumer Credit, Uncategorized
The Third Circuit rejected the debt collector’s argument that its notice did not constitute “debt collection” activity under the FDCPA. The Court affirmed the district court’s imposition of sanctions against the debt collector law firm, as the defendant law firm did not comply with the district court’s order to produce its invoices in discovery.
A copy of the opinion is available at: http://www2.ca3.uscourts.gov/opinarch/132015p.pdf
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
by Carol Lawson Esq | Sep 30, 2014 | Consumer Credit, Uncategorized
The First Circuit, U.S. Court of Appeals affirmed a judgment against a debt collector for violation of the federal Fair Debt Collection Practices Act (“FDCPA”) where the debt collector’s debt validation notice contained an implied threat of imminent legal action.
The Court held that “for FDCPA purposes, a collection letter is to be viewed from the perspective of the hypothetical unsophisticated consumer.”
http://media.ca1.uscourts.gov/pdf.opinions/13-2478P-01A.pdf.
A debt collector must inform the consumer that he or she has thirty days (30) from receipt of the debt notice within which to dispute the debt the validation, and if the consumer disputes the debt, the debt collector must provide the consumer with verification of the debt. See 15 U.S.C. § 1692g(a)(3)-(4). If the consumer either disputes the debt or requests information concerning the identity of the original creditor within this thirty-day period, the debt collector must suspend collection efforts until it supplies such data. Id. § 1692g(b)
The Financial Services Regulatory Relief Act of 2006 amended the FDCPA to include that “[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” See Pub. L. No. 109-351, § 802(c), 120 Stat. 1966, 2006-07 (codified at 15 U.S.C. § 1692g(b)).
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
