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Financial Services Law Insights and Observations

Connecticut Supreme Court reverses in favor of consumer in unfair trade practices appeal

Courts Appellate State Issues HAMP Mortgage Servicing

Courts

On November 26, the Connecticut Supreme Court reversed a trial court’s ruling on a mortgage servicer’s motion to dismiss a Connecticut Unfair Trade Practices Act (CUTPA) action brought by a consumer. The trial court had ruled in favor of the servicer, stating, among other things, that ruling in the consumer’s favor might dissuade servicers from engaging in loan modifications for fear of negligence claims and additional liability. According to the Connecticut Supreme Court opinion, the consumer defaulted on his mortgage and his servicer instituted foreclosure proceedings, at which time the consumer requested a loan modification under the HAMP program. The complaint claims that over the next five years, the servicer mishandled the loan modification process, failed to respond to the consumer’s inquiries about the modification status, and repeatedly requested applications and additional documents from the consumer.

Based on the facts stated in the complaint, the consumer claims that when the servicer finally extended a HAMP modification (which capitalized accrued but unpaid interest, default fees, and the servicer’s attorney fees), the consumer filed a complaint against the servicer for violation of CUTPA, alleging that the servicer “committed unfair or deceptive acts in the conduct of trade or commerce by failing to exercise reasonable diligence in reviewing and processing the [consumer’s] loan modification applications.” Additionally, the consumer alleged negligence, claiming that the servicer “owed the [consumer] a duty of care arising out of the servicing standards imposed by RESPA, the 2011 federal consent order, the national mortgage settlement, and the Connecticut foreclosure mediation statutes.”

The Connecticut Supreme Court reversed the lower court’s ruling striking the consumer’s CUTPA claim on a motion to strike (similar to a federal motion to dismiss), stating that, “viewed in the light most favorable to sustaining the complaint’s legal sufficiency, we agree with the [consumer] and conclude that these allegations describe conduct that was not merely a technical violation of these provisions or negligent or incompetent, but involved a conscious, systematic departure from known, standard business norms” and that the allegations, if true, could show that the servicer “deliberately engage[d] in a pattern of conduct intended to prevent” the consumer from getting a loan modification. However, the court agreed with the lower court regarding the negligence claim, rejecting the consumer’s claim that the servicer had a common-law duty “to use reasonable care in the review and processing of” his loan modification application.

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