While not a Florida case, the Fourth Circuit ruled today that the arbitration provision of Western Sky Payday Loans is unenforceable.  This may be a sign of expanding consumer protections in the future, although it is very early to tell.  Mandatory arbitration clauses force a consumer to give up their right to go to court, participate in a class action, pay expensive filing fees of sometimes thousands of dollars, pay an arbitrator $300-$400 a hour (a Judge is free!) as well as other drawbacks.

Quick summary of the highlights:

• No one appears to seriously dispute that Western Sky’s payday loans violated a host of state and federal lending laws. Indeed, a quick glance at Western Sky’s loan agreement suggests that Western Sky was keenly aware of the dubious nature of its trade.

Bankruptcy is supposed to provide a fresh start.  A reprieve from debt collector letters, calls, statements, threatening legal correspondence etc.  A do over.

Many mortgage servicers have believed they were exempt from this – after all they are merely servicing and protecting a mortgage lien they argue.  They’ve argued that federal laws require they send you all this stuff.  And call you multiple times in one day, every day.  This is not true.  Due to recent federal and state court rulings in Florida, mortgage servicers must stop mailing and calling you when you’ve told them not to, or filed bankruptcy and given up the home.  One local federal case brought in the Tampa Division, Florida, Elissa Diane LaPointe v. Bank of America, N.A., Case No.: 8:15-cv-1402-T-26EAJ (August 26, 2015) even ruled that the disclaimers often found in the small print in footnotes would not be enough to insulate mortgage servicers from liability.  The Court particularly noted the inconspicuous tiny print disclaimers are contradicted by the much more obvious demands for payment or statements of a past due amount.  The Court ruled that the consumer stated a claim under the FCCPA in three respects:  1) the bank’s communications could reasonably be expected to harass the consumer; 2) that they were an attempt to collect a debt that was no longer owed due to the bankruptcy; and 3) the consumers were contacted when they were represented by an attorney.

We’d like to pursue these contacts for what they are:  debt collection violations.  If you’ve ever told a mortgage company to stop calling you, we’d like to know about it.  If you are continuing to receive all kinds of correspondence or statements from mortgage companies after you’ve given up a home in bankruptcy, we’d like to know about it (particularly when those notices contain requests or demands for payment).  Most likely, their continued calls and the sending of statements are unlawful and you are entitled to statutory damages.  We have no fees or costs unless there is a recovery.   Contact Arkovich Law for further information.

With the Education Department’s new regulation last month on its Revised Pay As You Earn Plan, or REPAYE, all Direct Loan borrowers can access an income-based repayment plan that caps payments at 10 percent of their income, according to Undersecretary Ted Mitchell.

“This is a quilt – that had one piece missing – made up of the various income driven repayment plans,” Mitchell said. “We’ve now stitched that last piece of the quilt in and the quilt now covers all Direct Loan borrowers.”

Five million additional borrowers, including those who weren’t previously eligible because their debts were older, can now enroll starting in December.

  The year-end spending bill agreed to by House and Senate leaders last night includes a provision that restores tax forgiveness for principal reduction or short sales on mortgages.  The provision is retroactive to the beginning of 2015 and runs through 2016.  Assuming it is signed by President Obama our clients are in the clear once again for this year and for all of 2016!  YAY!