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fcraDid you ever wonder why credit reporting agencies cannot correct an error?  Even one that seems rather obvious to you?

The reason is the elaborate mechanism created by the credit reporting industry is inherently flawed.  This leads to inaccurate credit reports that lead consumers to paying too much for credit or being denied credit altogether.

The Fair Credit Reporting Act (“FCRA”) uses a standard that requires “maximum possible accuracy”.  This high burden was created by Congress in 1970 due to the need for consumer reporting agencies to assemble and evaluate consumer credit and other information  on consumers while acting in a fair, impartial manner respectful of a consumer’s right to privacy.  Congress recognized that the power to control this information could easily be misused and abused.  Credit bureaus do not consider the consumer as their customers.  They work for the creditors.

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Most of us still use the New Year as an opportunity to review the past year and set goals for the New Year.  My own practice has grown tremendously from this goal setting.  We target the best strategies to grow our practice and help our clients to get back on track financially.

As most of you know, we practice bankruptcy and foreclosure defense as we have for many years, but since student loan debt has become such a crisis, much of our work is focused on eliminating that debt.  We have developed different strategies both inside and outside of bankruptcy to reduce student loan debt.

A new tool we are adding this year involves the misreporting of student loan debt on credit reports.  Put quite simply, the student loan servicers often can’t get it right.  They send bills with different amounts owed, transfer the debt so often that it appears duplicate times on a credit report, inaccurately reports payments etc.  We intend to hold them accountable.  Stay tuned as we hope to blog about this regularly to help our readers recognize when their credit reports may be in error and costing them real money – by denied credit or increased cost of credit, insurance etc.

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fha-appleI’ve written before about the requirement in FHA mortgages that the lender send certified letters and conduct a face-to-face meeting with a borrower before initiating a foreclosure.  When a lender fails to do that, the may be liable for the damages sustained in a wrongful foreclosure.  There are other advantages as well to allow for the transfer of the debt to a third party or even another family members in case they wish to keep the home if the borrower becomes ill or even passes away.  Also it’s easier to obtain deficiency waivers of the debt in case a short sale or foreclosure occurs.

Conventional mortgages are not assumable.  However, similar to veterans who have VA loans, a consumer with an FHA loan may sell his/her home to a purchaser who is willing to assume the existing mortgage and continue making payments pursuant to the existing lending agreement.  HUD and FHA approval is necessary for a loan assumption to occur, and requirements include:

  • Manual underwriting to ensure that the homebuyer is creditworthy
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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgSince last week’s announcement that the Department of Education was forgiving $150 million in federal student loans, many people have reached out to us to see if they may benefit.

Those who will receive forgiveness under the $150 million announcement are limited to only those borrowers who:

  • were enrolled when the school closed; or
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cnbcToday, a CNBC reporter Annie Nova,  reports and gives an update on our Public Service Loan Forgiveness cases in Florida against Great Lakes and Navient for misrepresentations about the program.  Both of these cases are seeking or will seek class action status.

https://www.cnbc.com/2018/12/18/borrowers-denied-public-service-loan-forgiveness-file-lawsuits.html

  • The number of people who’ve been financially derailed by the public service loan forgiveness program is piling up, and so are the borrowers interested in bringing their servicers to court to seek damages.
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fha-guidelinesIf you have a FHA mortgage and have not had a face-to-face meeting with your lender, this may be the ticket to stop the foreclosure!

Foreclosures are on the rise in Florida:  Tampa/St. Pete is up 75%; Orlando is up 198% and Jacksonville is up an astonishing 332%.  While Tampa is the strongest real estate market of these other Florida metro areas, this uptick bears watching.  Overall, I’d have to say as a foreclosure defense attorney that lenders appear to have corrected many of their ways regarding properly documenting a mortgage and its subsequent assignment.  But lender practices are often still deficient.  A foreclosure defense attorney just needs to be more diligent in representation to ensure our laws are followed.

A mechanism that was designed to prevent unnecessary foreclosures is found in FHA mortgages and is known as the face-to-face meeting requirement.  FHA notes specifically limit acceleration of the debt and foreclosure only when permitted by HUD regulations.

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FDCPA-ceaseThe Fair Debt Collection Practices Act (“FDCPA”) and its Florida counterpart, the Florida Consumer Collection Practices Act, (“FCCPA”) require a debt collector or creditor to cease all collection efforts once a consumer acts to preserve their rights.  But you have to ask first, and in writing by sending a cease and desist.

Under 15 U.S.C. Section 1692c(c) if a consumer notifies the debt collector, in writing, to cease further communications OR if the consumer notifies the debt collector, in writing, that he or she refuses to pay the debt, the debt collector cannot communicate with the debtor, with 2 exceptions.

  • (a) to advise consumer collection efforts will cease; or
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Graph-Growth-in-SLs
In several stunning revelations, Betsy DeVos announced on November 27, 2018 in a press release that the federal government has 1.5 trillion dollars of federal student loan debt (more than credit card debt and auto loans combined).  It took 42 years from 1965-2007 for the federal student loan balance to grow to 500 billion dollars and in the last ten years that 500 billion has tripled.  However, that wasn’t the surprising part.

Only 24% of federal student loan borrowers are currently paying down both principal and interest.  Nearly 20% of all loans are delinquent or in default.  Those are very high numbers.

To compare, that’s seven times the rate of delinquency on credit card debt.

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debt-validationAbsolutely yes.  But admittedly, the bar is pretty low for the creditor pre-litigation to satisfy their obligation.

The Fair Debt Collection Practices Act (“FDCPA”) provides that a debt collector’s initial written communication to the consumer MUST effectively convey the following information:

  • Amount of the debt;
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robocalls

While there are often legal disputes about what kind of phone system a caller is using, if you are receiving pre-recorded calls, they are usually always a violation of the Telephone Consumer Protection Act (“TCPA”).  As 2018 nears an end, there is no sign that these cases are slowing down.  The National Law Review published their case review on December 6, 2018 as to the recent case law developments.  Lots of new court opinions on what constitutes an ATDS  – automatic telephone dialing system – of course.

For more information, please view our short video prepared by Arkovich Law for tips about how you can stop these calls or obtain damages for $500 – $1,500 per call for those calls after you ask them to stop calling your cell phone.

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