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On April 24, the U.S. Court of Appeals for the 5th Circuit agreed to hear a challenge by two Mississippi-based payday loan and check cashing companies to the constitutionality of the CFPB’s single-director structure. The CFPB filed a complaint against the two companies in May 2016 alleging violations of the Consumer Financial Protection Act for practices related to the companies’ check cashing and payday lending services, previously covered by InfoBytes here. The district court denied the companies’ motion for judgment on the pleadings, rejecting their arguments that the structure of the CFPB is unconstitutional and that the CFPB’s claims violate due process. However, the district court granted the companies’ motion to certify an interlocutory appeal as to the question of the constitutionality of the CFPB’s structure, referencing the D.C. Circuit’s decision in PHH Corp. v. CFPB, (covered by a Buckley Sandler Special Alert here), and noting the “substantial ground for difference of opinion as to this issue as exhibited by the differences of opinion amongst the jurists in the [D.C. Circuit] who have considered this issue.” The district court emphasized that the question is a “controlling question of law” that the 5th Circuit has yet to decide and, if the CFPB were determined to be an unconstitutional entity, this would materially advance the underlying action’s termination. A panel of the 5th Circuit has now granted the companies’ motion for leave to appeal from the interlocutory order on the issue of the constitutionality of the CFPB’s structure.
On February 26, the U.S. Court of Appeals for the 5th Circuit issued an opinion in a foreclosure dispute ruling that a lower court wrongly dismissed a breach of contract claim against Fannie Mae but was correct in dismissing the claim against a national bank that serviced the loan (bank). According to the opinion, a group of companies and investors (plaintiffs/appellants) constructed a low-income housing program (earning low income housing tax credits) through the financing of a loan by one of the companies secured by a deed of trust later assigned to Fannie Mae and serviced by the bank. When the plaintiffs/appellants defaulted on the loan, Fannie Mae accelerated the note and instituted non-judicial foreclosure proceedings pursuant to the deed; however, the plaintiffs/appellants alleged that some of the notices of acceleration and foreclosure were not received, and when the foreclosure sale proceeded and the IRS “recaptured” the tax credits earned on the project, the plaintiffs/appellants brought suit against Fannie Mae and the bank for, among other things, breach of contract based on the deed of trust and wrongful foreclosure. After granting a motion for rehearing, the lower court granted the bank’s motion for summary judgment, stating it did not breach a contract because it was not a party to the deed of trust. The lower court also dismissed the breach of contract claims against Fannie Mae and the bank, holding that because the plaintiffs/appellants defaulted on the deed of trust, they had no standing to sue based on a breach of that agreement.
In affirming in part and reversing in part, the three-judge panel determined that although the bank was the loan servicer at the time of default, “once Fannie Mae was notified of default, Fannie Mae became the loan servicer” and therefore the “primary point of contact.” Therefore, “[b]ecause the only claim on appeal is for breach of contract based on the [d]eed of [t]rust, and [the bank] was never a party to the [d]eed of [t]rust, [the bank] has no liability.” However, concerning the breach of contract against Fannie Mae for failing to serve notice of foreclosure to appellants, the panel reversed the lower court’s decision, stating that this particular breach “exists as a stand-alone cause of action,” separate from a claim of wrongful foreclosure. Further, the “obligation to give notice of foreclosure would not even arise unless and until the [plaintiffs/appellants] were in default under the note.” The 5th Circuit remanded the case back to the lower court for review.
On January 22, the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court’s decision that a loan-modification discussion between two borrowers and a mortgage servicer did not constitute a debt collection activity under the Texas Debt Collection Act (TDCA). After two borrowers defaulted on their home equity loan, they were encouraged by their mortgage servicer to apply for a modification under the Home Affordable Modification Program (HAMP). When the borrowers learned that they were, in fact, ineligible for a HAMP modification, due to state law restrictions, the borrowers filed suit against the creditor and the mortgage servicer (the “creditors”). Specifically, the borrowers alleged that the creditors violated the TDCA’s prohibition against using false representations or deceptive means to collect a debt by suggesting that the borrowers apply for a HAMP modification for which they did not qualify. The three-judge panel rejected this argument for two reasons. First, the court found that the borrower and creditors conversation about a modification did not “concern the collection of a debt” and thus the conduct was not subject to the TDCA. Second, even if the conduct were covered, the court found that the creditor had not affirmatively represented that the borrowers would qualify for a HAMP modification and, thus, under the TDCA’s prohibition against using false representations and deceptive means to collect a debt, no liability could ensue.
On December 11, the U.S. Court of Appeals for the Fifth Circuit ruled that a mortgage servicer’s communications about a potential loan modification do not constitute “debt collection activity” under the Texas Debt Collection Act (TDCA). The servicer had initially told borrowers that they could apply for a loan modification but later informed them that they were not eligible. The borrowers unsuccessfully appealed the determination with the servicer, yet prior to a final determination on the appeal, the servicer sent a statement reflecting a new monthly payment in the amount that the borrowers had been requesting. The borrowers made one payment in that amount, which the servicer accepted, but weeks later the servicer sent a letter stating that the mortgage was still in default. In affirming the district court’s judgment in favor of the mortgage servicer, the three-judge panel determined that while “modification discussions may constitute debt collection activities under the TDCA when those discussions are used as a ruse to collect debt,” the borrowers failed to make such a showing, and instead the servicer’s misrepresentations were “merely poor customer service.”
On July 6, the U.S. Court of Appeals for the Fifth Circuit held that a debt collector violated the Fair Debt Collection Practices Act (FDCPA) when it failed to notify credit reporting agencies that a consumer had disputed a debt. The Fifth Circuit further determined that this failure was sufficient to comprise a concrete injury conferring standing for the consumer to sue.
In its opinion, the appellate court focused on FDCPA § 807(8) and § 809(b), since the debt collector argued that the requirements in § 809 apply to § 807(8), relieving it of its notification duty under § 807(8). Although the appellate court found that the consumer had not disputed his debt under § 809, it agreed with the district court that this failure did not obviate the debt collector’s responsibility under § 807(8). The appellate court found that the debt collector was in violation of the FDCPA for passing on “credit information which is known or which should be known to be false, including the failure” to notify credit agencies of consumer’s disputed debt. Additionally, the appellate court determined that the debt collector’s violation of § 807(8) “exposed [the consumer] to a real risk of financial harm caused by an inaccurate credit rating.”