UDAAP Council Weekly UDAAP Standards Report - 4/22/2015

22 April 2015 Consumer Class Defense Counsel Blog

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 plaintiff failed to state a claim against a mortgage lender, where she alleged that the lender violated California’s UDAP statute when it refused to provide her with information regarding a deceased borrower’s debt, and instead declared a default and initiated foreclosure. While the court agreed that the plaintiff should have been given information by the lender, she failed to establish standing to assert a claim for relief because she did not allege she was the executor of the borrower’s estate. Ward v. Wells Fargo Home Mortgage, Inc., United States District Court for the Northern District of California.

Plaintiff borrowers stated a claim under California’s Rosenthal Fair Debt Collection Practices Act where they alleged that the assignee of their mortgage improperly and repeatedly rejected their loan modification application for failure to provide documents that had been provided, and then foreclosed on their property without notice after leading them to believe their loan modification application was being processed. Agbowo v. Nationstar Mortgage, LLC, United States District Court for the Northern District of California.

Deceptive

A debt collector’s statement that a debtor’s failure to pay her debt could lead to criminal prosecution violated the Fair Debt Collection Practices Act (FDCPA), given that failure to pay a debt is not a crime. The debt collector also violated the FDCPA by communicating with a third party regarding the debt. The debt collector could not prove its actions were a bona fide error given the evidence that the violations were intentional and the product of the debt collector’s faulty training of collectors. Aitken v. Debt Management Partners, LLC, United States District Court for the Central District of Illinois.

A debt collection letter was not deceptive when it stated that the debt had been “transferred” to the debt collector, because the debtor was unable to produce evidence that a significant portion of the public would have been confused whether the debt collector owned the debt or merely had been assigned to collect it. Moreover, any ambiguity would not have been material, and therefore would not have violated the FDCPA. Janetos v. Fulton, Friedman & Gullace, LLP, United States District Court for the Northern District of Illinois.

The assignee of a mortgage did not violate the FDCPA when it alleged in a foreclosure complaint that it had sent a notice of intent to foreclose and then filed the foreclosure, when in fact the assignor of the mortgage had taken those actions. The plaintiff failed to show that the misrepresentations in the complaint were material or that they falsely represented the character, amount or legal status of the plaintiff’s debt. Burton v. Nationstar Mortgage, LLC, United States District Court for the Eastern District of Pennsylvania.

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