Latest News & Blogs

Court Rules Lender, Acting as Mortgage Broker, Breached Fiduciary Duty to Borrower

On February 24, a California court of appeals affirmed a trial court’s decision to award damages against a mortgage lender for breach of fiduciary duty and misrepresentation, where the loan officer for the lender acted as a mortgage broker. Smith v. Home Loan Funding, Inc. , 2d Civ. No. B219372 (...

California Supreme Court Prohibits Businesses from Requesting and Recording Cardholder’s Zip Code

On February 10, the Supreme Court of California reversed a Court of Appeal decision that a ZIP code does not constitute personal identification information under The Song-Beverly Credit Card Act of 1971 (Credit Card Act), instead finding that a ZIP code is part of a person’s address, which does...

Bankruptcy Court States - But Does Not Hold - That MERS Lacks Authority to Assign Mortgages

On February 10, a judge in the United States Bankruptcy Court for the Eastern District of New York concluded , in dicta, that the Mortgage Electronic Registration System (MERS) lacks authority under New York law to assign interests in mortgages among its members. In re Agard , No. 810-77338 (Bankr...

Oregon Bankruptcy Court Allows MERS Wrongful Foreclosure Claim To Proceed

On February 7, the U.S. Bankruptcy Court for the District of Oregon allowed a wrongful foreclosure claim to proceed based in part on plaintiff’s allegation that not every transfer of the loan was recorded in the land records. McCoy v. BNC Mortgage, Inc. et al. , No. 10-06224 (Bankr. D. Or. Feb. 7,...

Illinois Appellate Court Holds That Assignee of Legal Title May Sue To Collect Debt In Own Name

On February 1, an Illinois state appellate court concluded that the Illinois Collection Agency Act permits an assignee of an account to sue in its own name to collect on the account, but the assignee must prove a valid assignment in order to do so. Unifund CCR Partners v. Shah , No. 1-10-0855, 2011...

Maine Federal Court Rejects Emotional Distress Claims in Mortgage Foreclosure

On January 10, the U.S. District Court for the District of Maine held that a plaintiff could not state a cause of action for either negligent or intentional infliction of emotional distress against a servicer or trustee in a mortgage foreclosure action. James v. GMAC Mortg. LLC , No. 2.09-cv-84 (D...

Massachusetts Supreme Court Affirms Decision Invalidating Foreclosures by Securitization Trustees Who Failed to Demonstrate Valid Pre-foreclosure Assignments

On January 7, the Supreme Judicial Court of Massachusetts (Supreme Court) affirmed the decision of a lower court invalidating foreclosures by two securitization trustees (Trustees) who failed to demonstrate that they were the mortgage holder pursuant to valid pre-foreclosure assignments. U.S. Bank...

State of Maine’s Department of Professional and Financial Regulation and Bureau of Consumer Credit Protection Issue Joint Advisory Ruling Regarding the Federal Reserve’s Interim Truth In Lending Rule

On January 6, Maine’s Department of Professional and Financial Regulation and Bureau of Consumer Credit Protection (Bureaus) issued a Joint Advisory Ruling regarding closed-end credit disclosures in light of the Federal Reserve’s Interim Truth-in-Lending Rule (Interim Rule), which was published on...

The UDAP-ification of Consumer Financial Services Law

In this article, the authors examine the “UDAP-ification” of consumer financial services law, discussing the origins and theoretical underpinnings of unfair and deceptive acts and practices law, and then noting recent actions by federal and state agencies to apply UDAP laws and principles in both...

Jeffrey P. Naimon

California Federal Court Holds National Bank Act Preempts State Law Claims Asserting National Bank Mislead Consumers by Failing to Make Material Disclosures

Recently, a California federal court held that the National Bank Act (NBA) preempts state laws purporting to require disclosure requirements on the bank's deposit-related activities. Robinson v. Bank of America, N.A. , Case No. CV 11-03939-GHK JEM, 2011 WL 5870541 (C.D. Cal. Nov. 11, 2011). In this...