Category Archives: Fair Lending

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Eleventh Circuit accepts Spokeo argument; holds that mere procedural violation is not enough to confer standing

In a victory for defendants, the Eleventh Circuit recently agreed that a mere procedural violation—the kind of injury that has become the favorite of the plaintiffs’ bar—is insufficient to confer Article III standing. More specifically, the Eleventh Circuit concluded that a certified return receipt will satisfy a lender’s obligation under Regulation X to provide written … Continue Reading

Alabama Court of Civil Appeals Holds Questions Regarding Propriety of Foreclosure May Be Raised as Affirmative Defense to Ejectment Even If Foreclosure Occurred More Than One Year Prior to Ejectment Action

The Alabama Court of Civil Appeals recently held in Pittman v. Regions Bank that questions about the propriety of a foreclosure may be raised more than one year after the foreclosure as an affirmative defense to an ejectment action, even if that party did not challenge the original foreclosure. In 2008, Windham and Rhonda Pittman—along … Continue Reading

Citing Spokeo, Eleventh Circuit Rejects Class Action Over Late Mortgage Satisfaction Recordation, Holding Plaintiff Had Not Alleged Concrete Injury-In-Fact Due to Statutory Violation

The Eleventh Circuit recently held in Nicklaw v. CitiMortgage, Inc.(No. 15-14216) that a plaintiff lacks standing to sue a creditor where the plaintiff merely alleges that the creditor failed to timely record a mortgage satisfaction, as it is statutorily required to do, but does not allege any additional concrete injury.… Continue Reading

Eleventh Circuit Holds That Reg. X Does Not Require Mortgage Servicers to Evaluate Untimely Loan Modification Plans Even If the Foreclosure Is Rescheduled So That the Sale Actually Occurs Beyond Reg. X’s 37-day Window

In a recent decision, the Eleventh Circuit (Lage v. Ocwen Loan Servicing, LLC, No. 15-15558 (11th Cir. Oct. 7, 2016)) held that a loan servicer is not required to evaluate a completed loan modification application if that application is submitted less than 37 days before a foreclosure sale is originally scheduled to occur. The Court … Continue Reading

CFPB Employs “Mystery Shoppers” to Investigate Allegations of Discrimination

With the Consumer Financial Protection Bureau (“CFPB”) now employing mystery shoppers, financial institutions must ensure that their branches are actually putting non-decimation policies into practice.  As we reported here on July 1, BancorpSouth, a Mississippi-based bank, recently entered into a $10.6M settlement with the CFPB regarding alleged redlining in the Memphis market.  That investigation was the … Continue Reading

CFPB Announces $10.6M Settlement with Mississippi Bank over Redlining

In a case that demonstrates the scope of the Consumer Financial Protection Bureau’s (“CFPB’s”) reach, the CFPB and Department of Justice (“DOJ”) have entered into a settlement with BancorpSouth totaling almost $10,600,000 over alleged redlining.  Redlining is the practice of denying services or raising prices to residents of certain geographic areas based upon their racial … Continue Reading

CFPB Files Enforcement Action Against Mississippi Payday Lender

The CFPB is showing that its enforcement actions are not limited to larger companies and that it will file actions in federal courts across the country.  On May 11, 2016, it filed an enforcement action against Mississippi payday lender All American Check Cashing in the United States District Court for the Southern District of Mississippi.  … Continue Reading

New class action complaint alleges that post-payment interest charges for certain home mortgages are invalid because of insufficient disclosures under 24 C.F.R. § 203.558

A class action filed last week in the Northern District of Georgia disputes the ability of a lender to charge post-payment interest for certain home mortgage loans when the lender has not provided a very specific disclosure form. In Felix v. SunTrust Mortgage, Inc., No. 16-66, Sarah Felix alleges the she took out an FHA-insured … Continue Reading

Eleventh Circuit holds that TILA does not create claim against an assignee for failure to timely provide payoff balance to mortgagor

The Eleventh Circuit recently reduced mortgage assignees’ potential exposure to liability for a servicer’s alleged violation of the Truth in Lending Act (“TILA”). In Evanto v. Federal National Mortgage Association, No. 15-11450, (11th Cir. Mar. 1, 2016), the Court held that TILA does not create a cause of action against an assignee for a mortgage … Continue Reading

Potential implications for financial institutions after last week’s SCOTUS decision guaranteeing a right for same-sex couples to marry in all fifty states

Today the Southeast Financial Litigation Monitor sat down with Balch Partner John Pickering, member of the Financial Industries Section and leader of the Real Estate, Credit and Commercial Practice Group, to discuss the potential implications for financial institutions after last week’s SCOTUS decision guaranteeing a right for same-sex couples to marry in all fifty states.  The … Continue Reading

United States Supreme Court holds no lawsuit required to rescind a loan pursuant to TILA:

The Truth in Lending Act (“TILA”) gives borrowers the right to rescind certain loans up to three years after the loan transaction is consummated if a lender fails to provide certain TILA disclosure. 15 U.S.C. § 1635(f). In Jesinoski v. Countrywide Home Loans, Inc., ___ U.S. ___, 2015 WL 144681, 2015 U.S. LEXIS 607 (January … Continue Reading

Court Clarifies Statute of Limitations in TILA Actions Involving Missing Disclosures, Rejects Equitable Tolling in Such Cases

A recent decision by the Eleventh Circuit Court of Appeals holds that the statute of limitations for a missing disclosure claim under the Truth-In-Lending Act (“TILA”), 15 U.S.C. §1601, et seq., begins to run on the date the lender distributed its loan application to the prospective borrower.  Further, in holding that the borrower “knew or … Continue Reading
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