As we previously noted, the statute of limitations on actions to enforce a note or deed of trust can be a brutally effective sword for borrowers in Washington State. Under the six-year limitations period of RCW 7.28.300, a borrower is entitled to “judgment quieting title” against the security instrument where “an action to foreclose . . . would be barred by the statute of limitations.”Copper Creek (Marysville) Homeowners Ass’n v. Kurtz, 502 P.3d 865, 869 (Wash. Ct. App. 2022), Division 1 of the Washington Court of Appeals resolved an issue central to the statute of limitations—i.e., the effect, if any, of a bankruptcy discharge on the commencement of the limitations period on each installment of a mortgage loan. Since 2017, state and federal courts in Washington have concluded, in a series of unpublished rulings, that a bankruptcy discharge commences the statute of limitations on each and every installment of a mortgage loan. See, e.g., Jarvis v. Fed. Nat’l Mortg. Ass’n, No. C16-5194-RBL, 2017 WL 1438040, at *1 (W.D. Wash. Apr. 24, 2017). Courts routinely held that upon the expiration of six years after the bankruptcy discharge, the limitations period expired as to all installments, and the borrower was entitled to judgment quieting title against the security instrument.
Continue Reading Copper Creek Confirms That Bankruptcy Discharges Have No Effect on the Statute of Limitations in Washington State
Recent Developments in Telephone Consumer Protection Act Litigation
Litigation of the Telephone Consumer Protection Act (TCPA) is an active area with frequent developments important to the consumer finance space. Two recent cases are worthy to note. In Loyhayem v. Fraser Fin. & Ins. Servs., Inc., 7 F.4th 1232 (9th Cir. 2021), the U.S. Court of Appeals for the Ninth Circuit held that the TCPA applies not only to “telemarketing” or “advertising” calls, but also to job-recruitment robocalls. In Fischman v. MediaStratX, LLC, No. 20-CV-83, 2021 WL 3559639 (E.D.N.C. Aug. 10, 2021), the Eastern District of North Carolina entered the debate on whether 47 C.F.R. § 64.1200(d) contains a private right of action by holding that it does.
Continue Reading Recent Developments in Telephone Consumer Protection Act Litigation
The CFPB Issues Interim Final Rule Clarifying that Tenants Can Hold Debt Collectors Accountable for Illegal Evictions
Today the Consumer Financial Protection Bureau (CFPB) issued an interim final rule supporting the Centers for Disease Control and Prevention’s (CDC) temporary eviction moratorium. The CDC’s temporary eviction moratorium has been extended through June 30, 2021 based on the current and projected epidemiological context of SARS-CoV-2 transmission throughout the United States. The CDC order generally prohibits landlords from evicting tenants for non-payment of rent if the tenant submits a written declaration that they are unable to afford full rental payments and would likely become homeless or have to move into a shared living setting. This prohibition applies to an agent or attorney acting as a debt collector on behalf of a landlord or owner of the residential property.
Continue Reading The CFPB Issues Interim Final Rule Clarifying that Tenants Can Hold Debt Collectors Accountable for Illegal Evictions
Consumer Finance Law COVID-19 Year in Review
While the COVID-19 pandemic affected nearly every industry last year, the consumer finance industry faced unique challenges in the wake of economic changes and government response. In this report Perkins Coie offers an analysis of the past year’s most noteworthy regulatory developments and litigation outcomes in the mortgage lending and servicing industry. We review the
CFPB Director Nominee, Rohit Chopra, testifies about his potential regulatory and enforcement priorities in Senate Hearing
CFPB Director nominee, Rohit Chopra, testifies about his potential regulatory and enforcement priorities in Senate Hearing. President Biden tapped Rohit Chopra, currently the FTC Commissioner, as his nominee to serve as the Consumer Finance Protection Bureau’s (CFPB) Director. During his nomination hearing in front of the United States Senate Committee on Banking, Housing, and Urban
Consumer Financial Protection Bureau Issues Two Final Rules Changing General QM Standard and Creating Seasoned QM Standard
The Consumer Financial Protection Bureau (CFPB) released two final rules amending the General Qualified Mortgage loan definition in Regulation Z and creating a new “Seasoned QM” loan category in Regulation Z. The General QM Final Rule replaces the current requirement for the General QM loans that the consumer’s debt-to-income ratio (DTI) not exceed 43 percent
COVID-19 Impacts on the Mortgage Industry: Response to Crisis and What to Expect in Enforcement, a Discussion With Craig Lackey
In this episode of White Collar Briefly, Perkins Coie’s David Biderman, firmwide chair of the Consumer Products & Services Litigation group, sits down with Craig Lackey, general counsel of Rushmore Loan Management Services, a major servicer of residential mortgages nationwide. Their discussion covers topics such as the COVID-19-related downturn on the economy and mortgage servicer
Barak Cohen Quoted in VIXIO PaymentsCompliance – CFPB Opens Gate to Regulated Open Banking in US
Perkins Coie Partner, Barak Cohen was quoted in VIXIO PaymentsCompliance “CFPB Opens Gate To Regulated Open Banking In U.S.” regarding the new rule on third-party access to consumer financial data the Consumer Financial Protection Bureau (CFPB) will begin developing in the United States.
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CRO Ben Purser Discusses Risk and Compliance in Mortgage Lending in a Financial Crisis
Ben Purser, chief risk officer for mortgage lender, Roundpoint Mortgage Servicing Corporation, and Barak Cohen, partner in Perkins Coie’s White Collar & Investigations practice and lead for the firm’s Commercial Litigation in Washington, D.C., discuss the challenges of legal compliance and risk in an industry that has been directly affected by two global financial crises
The Ninth Circuit Clarifies Its Approach in FDCPA Cases Concerning Foreclosure
The Federal Fair Debt Collection Practices Act (FDCPA) is the leading debt collection practices act, serving as the lynchpin of federal consumer protections in the area of debt collection as well as serving as a model for numerous state enactments. Not surprisingly, litigation often focuses on the crucial questions of who is a “debt collector” and what is “debt collection” for purposes of the FDCPA. This area of law has received close scrutiny in recent years with published cases from the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.
In Obduskey v. McCarthy & Holthus LLP, the Supreme Court had to decide whether “one principally involved in ‘the enforcement of security interests’ is . . . a debt collector” for purposes of the FDCPA. Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029, 1031 (2019). The Court concluded that the statutory language of the FDCPA’s definition of “debt collector” places:
Continue Reading The Ninth Circuit Clarifies Its Approach in FDCPA Cases Concerning Foreclosure