New York’s Highest Court Makes Key Rulings in Favor of Lenders Clarifying What Accelerates and De-Accelerates a Mortgage Debt for Statute of Limitations Purposes

Wayne Streibich, Diana M. Eng, and Chenxi Jiao

On February 18, 2021, the New York Court of Appeals issued a decision reversing the Appellate Division, First Department (“First Department”) and Appellate Division, Second Department’s (“Second Department”) decisions in Freedom Mortgage Corp. v. EngelDitech Financial, LLC v. NaiduVargas v. Deutsche Bank National Trust Company, and Wells Fargo Bank, N.A. v. Ferrato. Specifically, the Court of Appeals held, inter alia, that:

  1. a default letter stating that the lender “will” accelerate the debt referred to a future event and therefore did not accelerate the debt;
  2. the voluntary discontinuance of a foreclosure action (whether by motion or stipulation) within six years of acceleration, alone, revokes acceleration as a matter of law, unless the noteholder expressly states otherwise;
  3. the reason for a noteholder’s revocation is irrelevant, thereby expressly rejecting the concept that a noteholder’s revocation of acceleration cannot be “pretextual” to merely avoid the expiration of the statute of limitations; and
  4. a verified foreclosure complaint that accelerates the mortgage debt must clearly and accurately refer to the loan documents and debt at issue.

The Court of Appeals’ decision resolves a split between the First and Second Departments regarding whether a default letter clearly and unequivocally affirmatively accelerates a mortgage debt and provides much needed clarity on what conduct sufficiently accelerates a mortgage debt and revokes acceleration.

To read the full client alert, please click here.

New Requirements and Stays Imposed by New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020

Diana M. Eng and Alina Levi

On December 28, 2020, in response to the COVID-19 pandemic, the New York legislature met in a Special Session and passed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Act”) (S.9114/A.11181), which became effective immediately. The Act is aimed at providing relief to tenants facing residential eviction (Part A) and mortgagors/borrowers facing pending or future residential foreclosure proceedings (Part B, Subpart A). In addition, the Act (i) prohibits local governments from proceeding with tax lien sales or commencing tax foreclosures until May 1, 2021, on residential properties (Part B, Subpart B); (ii) prohibits credit discrimination and negative credit reporting (Part B, Subpart C); and (iii) requires local governments to carry-over the Senior Citizens’ Homeowners Exemption and the Disabled Homeowner Exemption to 2021 (Part B, Subpart D). Highlights of the Act are summarized below, but please refer to the full text of the Act for additional information.[i]

Limits of the Act

  • The Act does not apply to residential eviction and foreclosure actions involving vacant and abandoned properties, as defined in RPAPL 1309(2), listed on the statewide vacant and abandoned property electronic registry, as defined in RPAPL § 1310, prior to March 7, 2020, and that remain on such registry.[ii]
  • The Act also does not apply to, and does not affect, any mortgage loan made, insured, purchased, or securitized by a corporate governmental agency of the state constituted as a political subdivision and public benefit corporation or the rights and obligations of any lender, issuer servicer, or trustee of such obligations.[iii]

Eviction Highlights – Part A of the Act

  • Stays pending residential eviction proceedings for 60 days and bars new filings for 60 days through the end of February 2021, or to such later date that the chief administrative judge shall determine is necessary to ensure that the courts are prepared to conduct proceedings in compliance with the Act[iv];
  • Allows residential tenants to submit to their landlord and/or file with the court, a Hardship Declaration,[v] under penalty of perjury regarding their inability to pay their rent or secure alternative housing and suffering a financial hardship or suffering a health-related hardship that will extend the stay on eviction proceedings until May 1, 2021;
  • Certain proceedings can continue if the court receives an authorized new petition stating that the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others;
  • Requires the landlord and the court to serve on tenants, the Hardship Declaration Form, along with all required notices of petition;
  • Requires the state Office of Court Administration to post such information and forms on its website in multiple languages;[vi]
  • Allows tenants to vacate default judgments upon oral or written request; and
  • Creates a presumption of financial hardship upon filing a Hardship Declaration that would support a defense based on financial hardship under the Tenant Safe Harbor Act.[vii]

Foreclosure Highlights – Part B of the Act

Stay of Residential Foreclosures

  • All pending residential foreclosure actions are stayed for at least 60 days through the end of February 2021, or to such later date that the chief administrative judge shall determine is necessary to ensure that the courts are prepared to conduct proceedings in compliance with the Act.[viii]
  • The 60-day stay applies where the owner or mortgagor of the property is a natural person, regardless of how title is held, and owns 10 or fewer dwelling units whether directly or indirectly.
  • Any owner, borrower, mortgagor, or natural person who owns 10 or fewer residential dwellings (as long as this includes the borrower’s primary residence) and experiences a financial hardship, can file a Hardship Declaration[ix] with the lender, its agent, or the court to stay a pending foreclosure proceeding until May 1, 2021, and prevent the commencement of a foreclosure action until May 1, 2021.
  • Where a judgment of foreclosure sale was issued before December 28, 2020, but has not yet been executed, execution of the judgment shall be stayed until the court holds a status conference with the parties. If borrower/mortgagor submits a Hardship Declaration prior to the execution of the judgment, the action shall be stayed until May 1, 2021.

Statute of Limitations

  • The statute of limitations to foreclose will be tolled during the initial 60-day stay. The Act also provides that “any specific time limit for the commencement of an action to foreclose a mortgage shall be tolled until May 1, 2021.”[x]

Requirements for New Residential Mortgage Foreclosure Actions

  • New York Courts will not accept new foreclosure complaints for filing, unless the foreclosing party files an Affidavit of Service stating that:

(a) the required notices under RPAPL § 1303 (Help for Homeowners in Foreclosure/Notice to Tenants or “1303 Notice”) and RPAPL § 1304 (the “90-Day Notice”) and the Hardship Declaration (in English and mortgagor’s primary language, if other than English[xi]) were served on borrower/mortgagor; and

(b) attesting that at the time of filing, neither the foreclosing party nor its agent has received a Hardship Declaration from the mortgagor.

  • Importantly, the foreclosing party should not rely on 1303 Notices served, or 90-Day Notices that were mailed, before the Act was effective. Rather, the foreclosing party should serve new 1303 Notices and mail new 90-Day Notices with the required Hardship Declaration.[xii]
  • After a foreclosure action is commenced, the court shall seek confirmation on the record or in writing that borrower/mortgagor has received a Hardship Declaration and has not returned the Hardship Declaration to the foreclosing party or its agent.
  • If the court determines that the borrower/mortgagor has not yet received a Hardship Declaration form, the court must stay further proceedings for no less than 10 business days to ensure borrower/mortgagor receives and fully considers whether to submit a Hardship Declaration.

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NY’s Third Department Holds Action Enforcing Note Is Neither Barred by Estoppel Doctrines Nor the Applicable Statute of Limitations

Andrea M. Roberts and Diana M. Eng

In CitiMortgage, Inc. v. Ramirez, 2020 WL 7647749, at *3 (3d Dept. Dec. 24, 2020), the Appellate Division, Third Department, held that CitiMortgage, Inc.’s action to recover under a note (i) was not precluded because of CitiMortgage, Inc.’s right to an election of remedies; and (ii) was timely because the statute of limitations was tolled during the pendency of the prior foreclosure action.

Summary of Facts & Background

In May 2010, plaintiff, CitiMortgage, Inc. (“Plaintiff”), commenced an action to foreclose against borrower, Jose Ramirez (“Borrower”) (the “First Foreclosure Action”). The foreclosure action was dismissed in October 2013 for failure to prosecute. Plaintiff moved to vacate the dismissal, which was denied in April 2015. In 2017, plaintiff commenced a second foreclosure action (the “Second Foreclosure Action”), which was ultimately dismissed on the grounds that the statute of limitations to foreclose had expired in May 2016. The Court also discharged the mortgage.

In May 2019, Plaintiff commenced another action against Borrower seeking a money judgment in the amount of the unpaid balance of the note. Borrower moved to dismiss on the grounds that the (i) action was time-barred and (ii) barred by res judicata. The Schenectady County Supreme Court (“Lower Court”) granted Borrower’s motion holding that Plaintiff was collaterally estopped from relitigating the issue of whether the statute of limitations period was tolled. Plaintiff appealed.

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CFPB Issues Second Final Rule Clarifying Regulation of Fair Debt Collection Practices

Wayne Streibich, Jonathan K. Moore, and Louise Bowes Marencik

On December 18, 2020, the Consumer Financial Protection Bureau (“CFPB”) issued a final rule concerning debt collection disclosures, which follows its October 30, 2020 final rule regarding debt collection communications. The two final rules implement and interpret the consumer protections set forth in the Fair Debt Collection Practices Act (“FDCPA”) of 1977. The final rules will both become effective on November 30, 2021.

The latest final rule outlines various requirements regarding debt collection disclosures. Specifically, a debt collector must send a written disclosure to a consumer containing information concerning the debt and actions the consumer may take in response, within five days of its initial communication with the consumer. This disclosure must be sent unless such validation information was provided in the initial communication or the consumer has paid the debt. The final rule includes a model validation notice, which, if used, provides a safe harbor for compliance with the disclosure requirements. The final rule also requires debt collectors to disclose the existence of a debt to the customer, orally, in writing, or electronically, before it can report information concerning the debt to a consumer reporting agency.

Please click here to read the full client alert.

Florida Supreme Court Resolves Conflict on Business Records Exception to the Hearsay Rule and Clarifies Standard for Qualified Witness Testimony

Wayne Streibich, Edward W. Chang, Nicole R. Topper, Anthony R. Yanez

On July 2, 2020, the Florida Supreme Court issued its written opinion[i] in Jackson v. Household Finance Corporation, III, 236 So. 3d 1170 (Fla. 2d DCA 2016) to resolve a conflict with a case decided by the Fourth District Court of Appeal (Maslak v. Wells Fargo Bank, N.A., 190 So. 3d 656 (Fla. 4th DCA 2016). Specifically, the issue concerned whether the predicates were met for admissions of records into evidence under the business records exception to the hearsay rule during the course of a bench trial in a residential foreclosure case. The Florida Supreme Court held that the proper predicate for admission can be laid by a qualified witness testifying to the foundation elements of the exception set forth in Section 90.803(6) of the Florida Evidence Code.

Background

On June 23, 2014, the originating lender, Household Finance Corporation III (“HFC”), filed a foreclosure complaint alleging a default under the note and mortgage. Before the loan was originated, HFC was purchased by HSBC Holdings (“HSBC”) and became a wholly-owned subsidiary of HSBC. The borrower did not challenge the default, but opted to challenge whether the lender could establish its case in chief at trial.

At trial, HFC called an assistant vice president at HSBC, with 25 years’ experience at the company, to establish the foundation for admission of records under the business records exception to the hearsay rule. The borrower objected to the witnesses’ testimony on hearsay grounds and the original note, mortgage, and payment history were received into evidence over the borrower’s objections. The borrower elected not to introduce any evidence of her own and the trial court entered final judgment of foreclosure. The borrower appealed to the Second District Court of Appeal, which affirmed the final judgment of foreclosure.

The Jackson case conflicted with the Maslak decision from the Fourth District Court of Appeal, which reached the opposite conclusion regarding the sufficiency of the bank witness’ testimony. In Maslak, despite the bank employee’s testimony describing her job duties and familiarity with the bank’s loan servicing practices, the court held that the witness was not qualified to lay a foundation for the admission of the loan servicing documents that were offered into evidence at that trial. As a direct conflict of two intermediate appellate court decisions on the same issue of law, the Florida Supreme Court had jurisdiction to resolve the issue.

Florida Supreme Court’s Decision

In examining the business records exception to the hearsay rule, the Florida Supreme Court noted that a party has three options to lay the foundation to meet that exception: (1) offering testimony of a records custodian, (2) presenting a certification that or declaration that the elements have been established, or (3) obtaining a stipulation of admissibility. If the party elects to present testimony, the applicable case law explains that it does not need to be the person who created the business records. The witness may be any qualified person with knowledge of each of the elements.

Patterned closely after the federal rule, Section 90.803 of the Florida Evidence Code[ii] lists the following foundational elements of the business records exception: (1) that the record was made at or near the time of the event, (2) that it was made by or from information transmitted by a person with knowledge, (3) that it was kept in the ordinary course of a regularly conducted business activity, and (4) that it was a regular practice of that business to make such a record.

Turning to the testimony of the HFC trial witness, the majority opinion determined that the foundational elements were met and that no additional foundation was required by the business records exception language of the Section 90.803(6). The majority rejected the notion that the witness was required to detail the basis for his or her familiarity with the relevant business practices of the company, or give additional details about those practices in order to lay the foundation for the admission of those records. Since no such requirements were in the statute, any requirement imposed by the trial court or the appellate court would be inconsistent with the plain language of the statute. The majority explained that once the proponent lays the predicate for admission, the burden shifts to the opposing party to prove that the records were untrustworthy or should not be admitted for some other reason. According to the majority, the Jackson borrower failed to do that in this case and only waited until after the documents were received into evidence to question the witness about the basis for his knowledge.

The dissenting opinion posited that the majority’s ruling “[took away] the proponent’s burden to lay a proper foundation for admission” and focused on whether the proper foundation was met in the Jackson case. The dissent argued that the testimony at the Jackson trial was merely “general statements” that recited the elements of the statute but did not explain how the business records at issue were generated, what they were used for, or how they were maintained. For that reason, the dissenting judges maintained that the burden never shifted to the borrower to prove the untrustworthiness of those records, and concluded that the majority’s treatment of the business records exception as a “magic words” test would only increase the likelihood of inadmissible documents being admitted into evidence.

Conclusion

Compliance with the business records exception to the hearsay rule will almost always be a hotly contested issue at a foreclosure non-jury trial in Florida. The Jackson opinion, and the arguments raised in the dissenting opinion, will remind the trial courts to pay careful attention to the foundational requirements of the business records exception to the hearsay rule when timely objections are made to the evidence on those grounds. Despite competing opinions on the issue, the Florida Supreme Court agrees that the proponent’s witness should demonstrate personal knowledge and establish that the offered exhibits are reliable business records. To remove all doubt, a witness’ testimony should demonstrate a working knowledge of the company’s business record practices and systems. As a result of the Jackson opinion, it is important to effectively prepare the business records custodian witness to withstand any increased scrutiny as to the foundation requirements of the business records exception to the hearsay rule.

[i] The Florida Supreme Court decided the case by a 4 to 2 margin. Newly appointed justice, Renatha Francis, did not participate in the opinion. This decision is not final until the disposition of a timely-filed rehearing motion.

[ii] This section was last revised in 2003, adding language that a certification or declaration is an acceptable means of authenticating a business record under the business records exception to the hearsay rule. See ch. 2003–259, § 2, at 1299, Laws of Fla.; see also Fla. Stat. § 90.803(6) (2003) (providing for admission of business records upon testimony of the custodian of the records, “or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11)”).

New Jersey Supreme Court Confirms Assignee’s Right to Enforce Note Lost by Predecessor in Interest

Wayne Streibich, Edward W. Chang, Jonathan F. Ball

On July 1, 2020, the Supreme Court of New Jersey issued its unanimous opinion in Investors Bank v. Torres confirming that an assignee of a note lost by a predecessor in interest can enforce the lost note.[1] The Supreme Court affirmed the Appellate Division, which had affirmed the trial court’s grant of summary judgment to the assignee.[2] The Supreme Court’s decision clarifies that an assignee seeking to enforce a note lost by its predecessor in interest must present: (1) an admissible and sufficient Lost Note Affidavit; and (2) competent proof of the terms of the lost note. The Supreme Court expressly declined to adopt the Appellate Division’s reasoning that the equitable principle of unjust enrichment required allowing the assignee to enforce the note lost by its predecessor in interest to prevent a borrower from keeping a home for which they are not paying the mortgage.

The borrower, Torres, executed a promissory note in favor of AMRO Mortgage Group, Inc. (“ABN”), which was secured by a residential mortgage in 2005. ABN subsequently merged into CitiMortgage, Inc. (“CitiMortgage”). Torres defaulted on the note in 2010. CitiMortgage instituted a foreclosure action, which it voluntarily dismissed without prejudice after discovering that it could not locate the original note.

In 2013, CitiMortgage executed a Lost Note Affidavit explaining that it was the “lawful owner of the note,” and had not “cancelled, altered, assigned, or hypothecated the note,” but was unable to locate the original note despite a “thorough and diligent search.” CitiMortgage attached a digital copy of the note to the Lost Note Affidavit. The digital copy was not endorsed, but CitiMortgage explained in the Lost Note Affidavit that the digital version was a true and correct copy of the original note that Torres had executed after the digital copy had been made.

CitiMortgage served a Notice of Default and Intention to Foreclose in 2014. After doing so, CitiMortgage assigned the mortgage to Investors Bank, thereby conveying to Investors Bank the right to enforce the note and mortgage executed by Torres. Investors Bank then brought the foreclosure action at issue in opposition to which Torres asserted that Investors Bank could not enforce the note due to the loss of the original.

The trial court granted summary judgment in favor of Investors Bank. The Appellate Division affirmed based upon its interpretation of N.J.S.A. 12A:3-309 (New Jersey’s version of Section 3-309 of the Uniform Commercial Code pertaining to enforcement of lost instruments) and based on the equitable doctrine of unjust enrichment. The Supreme Court granted Torres’ request for review on certification.

The Supreme Court concluded that N.J.S.A. 12A:3-309 does not limit the right to enforce a lost instrument exclusively to the possessor of the instrument at the time it is lost. Rather, Investors Bank’s right to enforce the assigned mortgage and the transferred lost note were supported by New Jersey’s statutes addressing assignments, N.J.S.A. 2A:25-1 and N.J.S.A. 46:9-9, as well as New Jersey’s common law principles regarding assignments. Because the Supreme Court concluded that New Jersey’s statutory and common law dictated the conclusion that Investors Bank could enforce the lost note, the Supreme Court expressly declined to rely on the equitable doctrine of unjust enrichment that the Appellate Division had invoked in support of its decision.

With this threshold legal issue having been resolved in Investors Bank’s favor, the Supreme Court turned to Torres’ challenges to the admissibility of the Lost Note Affidavit. The Supreme Court, like the Appellate Division, concluded that the trial court did not abuse its discretion in admitting and relying on the Lost Note Affidavit. The Supreme Court reasoned that: (1) the Lost Note Affidavit was properly authenticated under N.J.R.E. 901, and it qualified as a business record, an exception to the hearsay rule, under N.J.R.E. 803(c)(6); (2) a business record is admissible even if it was not created by the proponent of the report at trial (i.e., Investors Bank could introduce the Lost Note Affidavit as a business record even though it had been prepared by CitiMortgage); (3) the passage of unknown amount of time between the loss of the original note and execution of the Lost Note Affidavit did not render the Affidavit inadmissible; and (4) the Lost Note Affidavit was not inherently untrustworthy because: (a) it had been prepared more than a year before CitiMortgage assigned the mortgage to Investors Bank; (b) there was no incentive for CitiMortgage to fabricate a claim that it lost the original note and could not locate it despite diligent efforts; and (c) the digital copy of the note set forth the terms that Investors Bank was seeking to enforce.

In summary, an assignee has the same rights to enforce a lost promissory note that the possessor of the note at the time of its loss would have had. However, the assignee must present a sufficient Lost Note Affidavit and competent proof of the terms of the lost note.

Wayne Streibich would like to thank Edward W. Chang and Jonathan F. Ball for their assistance in developing this alert.

[1] Investors Bank v. Torres, ___ N.J. ___ (July 1, 2020). The slip opinion is available on the Court’s website here.

[2] Investors Bank v. Torres, 457 N.J. Super. 23 (App. Div. 2018), certif. granted, 236 N.J. 594 (2019).

New York’s Department of Financial Services Issues Regulation for Financial Institutions to Provide Relief to Consumers Suffering Financial Hardship Resulting from COVID-19 Pandemic

Wayne StreibichDiana M. Eng, Andrea M. RobertsScott D. Samlin

On March 21, 2020, in response to the COVID-19 pandemic, Governor Cuomo issued Executive Order 202.9, directing institutions regulated by New York’s Department of Financial Services (“NY DFS”) to provide financial relief to New York consumers experiencing financial hardship as a result of the pandemic. As a result, on March 24, 2020, NY DFS enacted Part 119 of Title 3 of the Official Compilation of Codes, Rules and Regulations of the State of New York (“NYCRR”) establishing standards and procedures that a “Regulated Institution” must follow in its review of requests for relief pursuant to Executive Order 202.9. Importantly, Section 119.2 defines a “Regulated Institution” as “any New York regulated banking organization as defined under New York Banking Law and any New York regulated mortgage servicer entity subject to the authority of the Department.” (Emphasis added).

Highlights of the NY DFS Regulation1

Section 119.3 directs the Regulated Institution to do the following for any individual who can demonstrate financial hardship as a result of the COVID-19 pandemic:

  • In connection with a residential mortgage of a property located in NY: (i) make applications for forbearance of any payment due widely available to any individual who resides in NY and (ii) grant such forbearance for a period of 90 days (subject to the safety and soundness requirements of the Regulated Institution). This provision does not apply to, and does not affect mortgage loans “made, insured, or securitized by any agency or instrumentality of the United States, any Government Sponsored Enterprise, or a Federal Home Loan Bank, or the rights and obligations of any lender, issuer, servicer or trustee of such obligations, including servicers for the Government National Mortgage Association.”
  • With respect to banking organizations: (1) eliminate fees charged for the use of ATMs that are owned or operated by the regulated banking organization; (2) eliminate any overdraft fees; and (3) eliminate any credit card late payment fees. (Regulated Institutions are not limited to these three requirements and may take additional actions if they so desire.)

Within ten (10) business days of the implementation of this regulation, i.e., by April 7, 2020, the Regulated Institution shall e-mail, publish on their website, mass mail, or otherwise broadly communicate to its customers how to apply for relief. The criteria, developed by the Regulated Institution, “shall be clear, easy to understand, and reasonably tailored to the requirements of the [R]egulated [I]nstitution to assess whether it will provide, consistent with the goals of Executive Order 202.9 and this regulation, applicable state and federal law, and the principles of safe and sound business practices, COVID-19 relief.” 3 NYCRR § 119.3(d)(1).

In addition, Section 119.3(e) outlines the requirements for processing applications for relief, as follows:

  • The Regulated Institution must process and respond to the request for relief no later than ten (10) business days after receiving all the information it needs to process the application;
  • The Regulated Institution must process the application for relief expeditiously; the Regulated Institution is responsible for developing and implementing the procedures to do so; and
  • Decisions on the application for relief shall be made in writing and provide the consumers the next steps if they are approved or denied the request.

Finally, Section 119.39(4) modifies Section 39 of the New York Banking Law concerning unsafe and unsound business practices. Under the modified section, it is an “unsafe and unsound business practice” if any Regulated Institution does not “grant a forbearance of any payment due on a residential mortgage for a period of ninety (90) days to any individual who has applied for such forbearance and demonstrated a financial hardship as a result of the COVID-19 pandemic as described herein.” NY DFS will consider, among other things, the adequacy of the process established by the Regulated Institution, the thoroughness of the review of the application, and the payment history, creditworthiness and financial resources of the borrower, in assessing whether a regulated institution has engaged in an unsafe or unsound practice. Regulated Institutions must also maintain copies of all files related to implementation of Part 119 for seven (7) years from March 24, 2020 (date of implementation of the regulation) and must make such files available for inspection at the NY DFS’ next examination of the Regulated Institution.

The standards and procedures set forth in Part 119 shall be in effect for ninety (90) days. After the expiration of the 90-day period, NY DFS will renew this emergency regulation, if necessary.

Conclusion

Regulated Institutions must implement processes and procedures to comply with Part 119 by April 7, 2020, including immediately setting up procedures to review applications for relief and taking the necessary steps to notify its customers of how to apply for such relief. Thus, Regulated Institutions should determine which of its loans, if any, are subject to this regulation and accept and review its customers for forbearance relief as described in the regulation.

Mr. Streibich would like to thank Diana M. Eng, Andrea M. Roberts, and Scott D. Samlin for their assistance in developing this alert.


1 This Alert provides the highlights of the regulation, which does not apply to any commercial mortgage or any other loans not described in the regulation. Please visit the NY DFS website for the complete regulation: dfs.ny.gov/system/files/documents/2020/03/re_new_pt119_nycrr3_text.pdf.

U.S. Supreme Court Rules Statute of Limitations for FDCPA Claim Runs One Year from Alleged Violation, Not Discovery

Wayne Streibich, Diana M. Eng, Jonathan M. Robbin, Scott E. Wortman, and William L. Purtell

The Supreme Court of the United States (“Supreme Court”) recently affirmed the Third Circuit’s decision holding Fair Debt Collection Practices Act (“FDCPA”) claims are subject to a one-year statute of limitations from the date of an alleged violation and rejecting the Fourth and Ninth Circuit’s adoption of a broad “discovery rule.” However, debt collectors should take note that equitable tolling principles may still apply in certain circumstances. 

On December 10, 2019, in Rotkiske v. Klemm, — S. Ct. — (2019), the Supreme Court issued an opinion holding that the one-year statute of limitations under the FDCPA accrues when a violation of the FDCPA occurs, not when that violation is discovered by the consumer. The Justices ruled 8-1 in the case, with Justice Thomas writing the opinion and Justice Sotomayor concurring. Justice Ginsburg filed a dissent, which would have remanded the case back to the district court to re-review the consumer’s separate allegations of equitable tolling of the statute of limitations.

Summary of Facts

In 2009, respondent Klemm & Associates (“Klemm”) sued petitioner Kevin Rotkiske (“Rotkiske”) in state court to enforce a credit card debt, which was allegedly beyond Pennsylvania’s statute of limitations for enforcement (“2009 Action”). Klemm issued service of process to an address where Rotkiske did not live, which Klemm allegedly had reason to know was inaccurate. An unknown individual accepted service on behalf of Rotkiske. Ultimately, Klemm obtained a default judgment against Rotkiske based on this return of service. Rotkiske was unaware of the default judgment against him until 2014, when his mortgage loan application was denied based on this default judgment.

Please click here to read the full client alert.

NY Appellate Court Holds Default Letter Stating Lender “Will Proceed to Automatically Accelerate” Did Not Accelerate the Debt and Thus Did Not Trigger the Statute of Limitations

Diana M. Eng and Alina Levi

In U.S. Bank N.A. v. Gordon, 176 A.D.3d 1006 (2d Dept. 2019), the New York Appellate Division, Second Department, held that a notice of default stating that if the loan was not made current, the lender “will automatically accelerate [the] loan,” was “merely an expression of future intent” and therefore did not accelerate the borrowers’ debt. As such, the Second Department held that the notice of default did not trigger the statute of limitations.

Summary of Facts and Background

On or about November 3, 2005, Steve and Ashia Gordon (“Defendants”) executed a note (“Note”), which was secured by a mortgage (“Mortgage”) against a property in Queens, New York. On or about July 1, 2011, Defendants defaulted on the loan. As a result, America’s Servicing Co. (“ASC”) sent a letter to Defendants, dated September 21, 2008 (“Notice of Default”), advising them that the loan was in default, and that, “[u]nless the payments on your loan can be brought current by October 21, 2008, it will become necessary to accelerate your Mortgage Note and pursue the remedies provided for in your Mortgage or Deed of Trust.” Moreover, the Notice of Default warned that “failure to pay this delinquency, plus additional payments and fees that may become due, will result in the acceleration of your Mortgage Note. Once acceleration has occurred, a foreclosure action . . . may be initiated.” In addition, the Notice of Default stated that “[t]o avoid the possibility of acceleration,” Defendants were required to make certain payments by a specific time, or ASC “will proceed to automatically accelerate your loan.” (Emphasis added).

On June 29, 2017, plaintiff U.S. Bank N.A. (“U.S. Bank”) commenced a foreclosure action to enforce the Defendants’ Mortgage in the Queens County Supreme (the “Lower Court”). Defendants moved to dismiss the action pursuant to CPLR 3211(a)(5) alleging that the statute of limitations to foreclose had expired. Specifically, Defendants argued that the entire debt was accelerated on September 21, 2008, based on the Notice of Default. Continue reading

CFPB Proposes Regulations to Clarify, Modernize, and Implement the Fair Debt Collection Practices Act

Wayne Streibich, Diana M. Eng, Jonathan M. Robbin, Nicole R. Topper, Scott E. Wortman, and Paul Messina Jr.

Financial institutions and debt collectors should take note of, and provide comments on, the CFPB’s recent Notice of Proposed Rulemaking, which attempts to provide consumers with “clear protections against harassment by debt collectors and straightforward options to address or dispute debts.”      

On May 7, 2019, the Consumer Financial Protection Bureau (“CFPB”) released its long-awaited Notice of Proposed Rulemaking (“NPRM”), aiming to clarify and modernize the Fair Debt Collections Practices Act (“FDCPA”). The over 500-page NPRM marks the CFPB’s latest half-decade long effort to issue the first set of substantive rules interpreting the FDCPA since its passage in 1977.

Background

Seeking to curb abuses in the debt collection industry, Congress enacted the FDCPA in 1977. However, with the passage of time and the creation of new technologies, ambiguities and uncertainties in the industry developed. Without any federal agency delegated authority to write substantive rules interpreting the FDCPA, the courts were left with the sole burden of doing so. That changed in 2010, when Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) delegating authority to the CFPB.

Citing the ongoing and abundance of consumer complaints, as well as the need to adapt the FDCPA for modern technologies, the CFPB called for public input on potential new regulations in 2013, and again in 2016, releasing an outline of proposals under consideration. This week’s NPRM incorporates many of those ideas with some adjustments. The NPRM will be open for 90 days for public comment following its publication in the Federal Register.

Please click here for the full client alert.