UDAAP Council Weekly UDAAP Standards Report – 4/1/2015

Every week, courts around the United States issue decisions addressing aspects of civil UDAAP claims. In an effort to illuminate the UDAAP standards, below is a sampling of some of this week’s UDAAP decisions on the meaning of unfair, deceptive, and abusive.

Unfair

• A borrower alleged that a mortgage servicing company (the “servicer”) violated the California Unfair Competition Law (“CUCL”) when it added inspection fees to the borrower’s statement based on inspections it ordered for a defaulting borrower’s property. However, the court dismissed the borrower’s claims because the borrower’s mortgage agreement allowed the servicer to take steps to protect the property and to charge the borrower for the steps taken (even though the borrower alleged that the agreement required the servicer only to take “necessary” steps to preserve the property). The court also dismissed the complaint because there was no wrongdoing in a servicer automatically ordering inspections. The court further rejected the borrower’s claim that the servicer failed to adequately disclose the nature of the charges on her statement, finding that the servicer could charge for inspections, and adequately showed those charges as property inspections on their statements. The court also found that the borrower could not bring a claim under the CUCL, because the servicer’s acts were legal, ethical, and not fraudulent. Vega v. Ocwen Financial Corporation, United States District Court for the Central District of California.

Deceptive

• A consumer credit card company was not held liable for violations of the Fair Debt Collection Practices Act (“FDCPA”) after a consumer alleged that the credit card company pursued a debt for six and a half years against the consumer before finding that a third party committed fraud. The consumer’s case failed because he alleged that the credit card company sought to collect its own debt. However, under the FDCPA, a “debt collector” does not include a creditor trying to collect its own debt. McFerrin v. Capital One Bank (U.S.A.), N.A. – United States District Court for the Northern District of Alabama.
• A consumer failed to allege sufficient facts against a law firm acting as a debt collector for a credit card company to create potential liability under the FDCPA. The consumer merely recited statements of law, and failed to provide sufficient facts to allow his claim to move forward. However, among other arguments, the consumer raised allegations that the law firm reported the consumer’s debt to a state court in an attempt to collect the debt, but failed to tell the same court that the consumer disputed the debt. According to the consumer, this was a violation of the FDCPA’s prohibition against debt collectors reporting a consumer debt to a consumer credit bureau without informing that same bureau that the consumer disputed the debt. The court agreed that a “petition filed in good faith in state court alleging a debt is owed is not an actionable FDCPA violation,” but, decided against the consumer for other reasons. Gillen v. Kohn, United States District Court for the Western District of Wisconsin.
• Borrowers alleged violations of the Illinois Consumer Fraud Act (“ICFA”) and the FDCPA based on a lender’s assignment of the borrower’s mortgage to a servicing company. The lender failed to inform the servicer that it had negotiated a modification with the borrowers. The borrower alleged that the lender violated the ICFA through “deceptive or unfair act[s] or practice[s]” when it failed to assist in remedying the misunderstanding it created with the mortgage servicer. The court found that this was not an adequate basis to assert liability under the ICFA. The court did not address the borrowers’ FDCPA claims. Geske v. Fannie Mae, United States District Court for the Northern District of Illinois.

Fraud

• A borrower alleged facts sufficient to bring a claim for violations of New Jersey’s Consumer Fraud Act (“NJCFA”) when he alleged that a lender induced the borrower to cease payments on the borrower’s mortgage in order to trigger a modification of the borrower’s mortgage. The lender promised a decision within six to twelve weeks about a modification, but never properly evaluated the borrower for a new loan under the terms it provided, even as it accepted payments from the borrower under the new terms. Borrowers attempted to obtain more information from the lender, but the lender never actually provided documentary evidence showing that such an evaluation took place. The court found that the lender offered the borrowers a loan modification, induced the borrower to make payments, and failed to properly assess the plaintiffs, which fell within the NJCFA. Sario v. Wells Fargo Bank, N.A., United States District Court for the District of New Jersey.

Note that this Weekly UDAAP Standards Report serves to highlight only some of the many weekly developments in the law around these standards.

Please feel free to contact me for more information or to discuss these cases or any other UDAAP developments.