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DITECH MOTION TO DISMISS DENIED AFTER REMOVING CLIENT’S NAME FROM MODIFICATION AGREEMENT

On July 3, 2018, Judge Birotte Jr. of the Central District of California denied a motion to dismiss filed by Ditech that argued our client was not removed from the home mortgage loan even though the lawsuit alleges that Ditech undertook the specific actions of removing her name as a customer and signatory to a modification agreement entered into by the ex-husband.  Ditech argued that the modification agreement contains a clause that shows the underlying loan still applies in full force as against our client.   However, California law specifically holds that any inconsistent terms between the modification agreement and the underlying agreement are replaced by the modification agreement.  Our position was that the modification agreement only applies between Ditech and the ex-husband, because it is a basic principal of contract law that someone cannot be held liable to something they did not agree to, and therefore any term in the modification agreement that shows the original note still applies in full force only applies to Ditech and the ex-husband subject to the inconsistent terms in the modification agreement.

 

The Court agreed with our allegations, ruling that Ditech’s actions in removing our client’s name as a customer creates at least an inference worthy of discovery and litigation that Ditech intended to remove our client from the loan altogether, and that when Ditech continued reporting to the credit reporting agencies that our client remains obligated upon the loan in the full amount then Ditech furnished false/inaccurate/misleading information as against our client.  Furthermore, Judge Birotte also agreed that when Ditech continued to call our client directly seeking payment after the ex-husband went into default, Ditech engaged in unlawful debt collection in violation of the Rosenthal Act.

Read the opinion by clicking HERE.

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STUDENT LOAN GIANT NAVIENT HIT WITH THREE GOVERNMENT LAWSUITS IN ONE DAY

  • Jared Hartman, Esq.
  • Posted on January 25, 2017

 

s reported by the Washington Post on January 18, 2017 (the article can be read by clicking HERE), the student loan giant Navient was hit with three government lawsuits in one day for multiple consumer rights violations.

Danielle Douglas-Gabriel reported, “Among the most serious charges in the CFPB complaint is an allegation that Navient incentivized employees to encourage borrowers to postpone payments through forbearance, an option in which interest continues to accrue, rather than enroll them in an income-driven repayment plan that would avoid fees. As a result, the CFPB says Navient amassed $4 billion in interest charges to the principal balances of borrowers who were enrolled in multiple, consecutive forbearances from January 2010 to March 2015.”

With respect to the lawsuit brought by the Consumer Financial Protection Bureau, CFPB Director Richard Cordray said “Navient has systematically and illegally failed borrowers at every stage of repayment.”

State Attorney Generals of Illinois and Washington also filed a lawsuit that, in addition to pursuing similar claims as the CFPB with respect to servicing violations, also accuse Navient (through its former parent company, Sallie Mae) of peddling “’risky and expensive’ subprime private student loans that carried high interest rates and fees”. AG Madison stated, “Navient and Sallie Mae saddle students with subprime loans that Sallie Mae designed to fail.”

As quoted by Douglas-Gabriel, “The lawsuits are full of deeply disturbing allegations,” said Rohit Chopra, senior fellow at the Consumer Federation of America and the former student-loan point man at the CFPB. “If this is true, then the company’s actions may be responsible for some of the pileup of defaults that we’ve seen in recent years.”

Our firm at Semnar & Hartman, LLP has also recently filed suit against Navient. A copy of the Complaint can be read by clicking HERE. In this lawsuit, the consumer alleges that she paid off the loan with Navient in full, yet Navient proceeded to commit credit reporting violations by falsely reporting that the account had a current balance even after it had been paid in full, then falsely verified to Trans Union that the incorrect reporting was accurate, and also falsely reported to Experian that the account had been discharged in bankruptcy…. Thus, it appears that not even customers who pay their loans in full to Navient are free from their outrageous and abusive consumer violations.

If you also have concerns about the way you are being treated by Navient, please do not hesitate to contact us for a free and confidential consultation.

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WELLS FARGO PENALIZED OVER UNLAWFUL STUDENT LOAN SERVICING PRACTICES

  • Jared Hartman, Esq.
  • Posted on August 28, 2016

 

On August 22, 2016, the Consumer Financial Protection Bureau (“CFPB”) entered into a consent order with Wells Fargo over the manner in which Wells Fargo has been unlawfully handling its student loan servicing practices. The CFPB is a federal government agency that is tasked with investigating unlawful and unfair practices that creditors, banks, and debt collectors engage in with respect towards consumers. If violations are discovered and alleged, the CFPB has the power to issue a wide array of penalties that could include ordering a business to close its operations. Needless to say, when the CFPB sets its targets on a financial entity, the company should be in fear.

On August 22, 2016, the Consumer Financial Protection Bureau (“CFPB”) entered into a consent order with Wells Fargo over the manner in which Wells Fargo has been unlawfully handling its student loan servicing practices. The CFPB is a federal government agency that is tasked with investigating unlawful and unfair practices that creditors, banks, and debt collectors engage in with respect towards consumers. If violations are discovered and alleged, the CFPB has the power to issue a wide array of penalties that could include ordering a business to close its operations. Needless to say, when the CFPB sets its targets on a financial entity, the company should be in fear.

Before we discuss specifics, it is important to note that inquiries remain on the consumer’s credit reports for two years. Soft inquiries will have less of an effect on the consumer’s credit score than hard ones. So what’s the difference?

  • Processing payments in a way that maximized fees owed by consumers. Specifically, if a borrower made a payment that was not enough to cover the total amount due for all loans in an account, Wells Fargo divided that payment across the loans in a way that maximized late fees rather than satisfying payments for some of the loans. The bank failed to adequately disclose to consumers how it allocated payments across multiple loans, and that consumers have the ability to provide instructions for how to allocate payments to the loans in their account. As a result, consumers were unable to effectively manage their student loan accounts and minimize costs and fees.
  • Billing statements misrepresenting to consumers that paying less than the full amount due in a billing cycle would not satisfy any obligation on an account. In reality, for accounts with multiple loans, partial payments may satisfy at least one loan payment in an account. This misinformation could have deterred borrowers from making partial payments that would have satisfied at least one of the loans in their account, allowing them to avoid certain late fees or delinquency.
  • Illegally charging late fees even though timely payments had been made. Specifically, charging illegal late fees to payments made on the last day of their grace periods, and also charging illegal late fees to certain students who elected to pay their monthly amount due through multiple partial payments instead of one single payment.
  • Failing to update and correct inaccurate, negative information reported to credit reporting agencies about certain borrowers who have made partial payments or overpayments.

For these unlawful practices, Wells Fargo must pay at least $410,000.00 to consumers as compensation for illegal collection fees and late fees, and must allocate partial payments made by a borrower in a manner that satisfies the amount due for as many of the loans as possible, unless the borrower directs otherwise. Wells Fargo must also provide consumers with improved disclosures in billing statements, which must explain how the bank applies and allocates payments and how borrowers can direct payments to any of the loans in their student loan account. Wells Fargo must also remove any negative student loan information that has been inaccurately or incompletely provided to a consumer reporting agency. Wells Fargo must also pay a $3.6 million penalty to the CFPB’s Civil Penalty Fund.

The CFPB’s consent order can be ready by clicking HERE.

Clearly, this is not a light slap on the wrist that banks typically believe they should get, and this strong action by the CFPB should hopefully send a clear message to Wells and other financial institutions that they must take consumer rights very seriously and respect consumers as human beings instead of just another financial account on the books.

If you or a loved one have concerns over any account being serviced or owned by Wells Fargo, please do not hesitate to contact our law firm for a free and confidential consultation to discuss your rights.