Tag Archives: foreclose

Defendants Could Not Show They Were not Debt Collectors as Defined by 15 U.S.C.S. § 1692a(6)(F)

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The court in deciding Dias v. Fannie Mae, 2013 U.S. Dist. LEXIS 181584 (D. Haw., 2013) rejected all but one of the plaintiff’s claims.

The court found that the plaintiff’s Haw. Rev. Stat. § 667-5 defective assignment claims against defendants failed because the mortgage gave the requisite authority.

The court found that a claim that no sale could be held pending a Home Affordable Modification Program (HAMP) modification failed because the mortgagor lacked standing. The false mortgage assignment claim failed because nothing showed a publicly recorded assignment was false. Likewise, the breach of contract claim for violating HAMP guidelines failed because the mortgagor had no such claim, no HAMP trial payment plan supported it, and she was not an intended beneficiary of any HAMP agreement between defendants and the U.S. Treasury.

However, the plaintiff’s Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692, claims survived because a defaulted debt was assigned, so defendants could not show they were not debt collectors, under 15 U.S.C.S. § 1692a(6)(F).

Appellate Court of Illinois Awarded Summary Judgment to Plaintiff Where Defendant Failed to Show That Plaintiff was an Unlicensed Debt Collector Under the Collection Agency Act

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The Illinois court in deciding Kondaur Capital Corp. v. Sreenan, 2013 Ill. App. (Ill. App. Ct. 1st Dist. 2013) affirmed the judgment of the circuit court granting summary judgment for the plaintiff.

In the summary judgment motion, the plaintiff asserted that it was the legal holder and in possession of the note at issue pursuant to the assignment from PNC.

The court held that the circuit court did not err in awarding summary judgment to the plaintiff where the defendant failed to demonstrate that the plaintiff was an unlicensed debt collector under the Collection Agency Act (225 ILCS 425/1 et seq.).

The court also held that there was no abuse of discretion in refusing to strike affidavits in support of the plaintiff’s motion for summary judgment where the affidavits were premised upon documents that qualified as “business records” under Supreme Court Rule 236 (Ill. S. Ct. R. 236).

Lastly, the court held that any error in allowing the plaintiff to respond to the defendant’s affirmative defenses in the context of the plaintiff’s summary judgment motion was harmless.