Consumer Crossroads: Where Financial Services and Litigation Intersect

Yesterday, a federal court granted ACA International's request for a temporary restraining order of the Massachusetts Attorney General's emergency regulations prohibiting debt collection calls and enforcement actions during the COVID-19 pandemic.

On May 1, 2020, U.S. District Court for the District of Massachusetts Judge Richard Stearns heard oral arguments in ACA International's suit to halt the emergency debt collection regulations enacted in Massachusetts, which included a request for a temporary restraining order. In response to ACA's said request, Stearns expressed particular interest in whether the regulations constitute an improper ban on commercial speech under the First Amendment, as well as AG Maura Healey's argument that the federal court does not have jurisdiction to strike down the regulations under the Eleventh Amendment.

We recently reported on Massachusetts Attorney General Maura Healey's implementation of temporary regulations halting collection of debt from Massachusetts' consumers in the wake of the COVID-19 crisis. With certain exemptions, the regulations declare the performance of many regular debt collection activities—including placing telephone calls to debtors or initiating collection actions—an unfair or deceptive practice under the Massachusetts Consumer Protection Act. The emergency regulations apply until June 25, 2020, or until the end of Massachusetts' state of emergency, if longer. Now, a leading industry group has sued the Attorney General to enjoin immediate enforcement and to strike down the regulations.

On April 20, 2020, Massachusetts Governor Charlie Baker signed H.4647 into law. The law establishes a moratorium on foreclosures and evictions for 120 days from the date of the enactment, or 45 days after the COVID-19 Emergency Order is lifted, whichever is sooner, and also extends forbearance to any borrower who requests it due to COVID-19. The law allows the Governor to expand the foreclosure moratorium for a further 90 days, so long as it does not exceed the 45 day limit after the COVID-19 Emergency Order is lifted.

From March 27 through June 25, 2020—or until the end of Massachusetts' state of emergency—Attorney General Maura Healey has implemented temporary regulations on the collection of debt from Massachusetts consumers, which supplements existing regulations codified at 940 CMR 7.00. Important exemptions apply, including attempts to collect a debt which is owing as a result of a loan secured by a mortgage on real property.

Under Massachusetts law, a foreclosing lender has a duty of good faith and reasonable diligence to obtain the highest possible price for a property at auction. Until recently, it was considered appropriate for the lender to make a credit bid up to the amount owed on the mortgage in order to satisfy this duty. However, a recent decision by the Massachusetts Appeals Court has expanded the duty of good faith and reasonable diligence beyond a review of the property's assessed or appraised fair market value. A property's development potential may also need to be reviewed in order to calculate an acceptable winning bid.

On February 22, 2019, the Third Circuit in Barbato v. Greystone Alliance, LLC, issued a decision that expands the scope of the Fair Debt Collection Practices Act's (FDCPA) definition of the term "debt collector" to any entity that acquires debt for the purpose of collection, but outsources the actual debt collection activity.

In Thompson v. JPMorgan Chase Bank, the First Circuit Court of Appeals held a foreclosure was potentially void where terms in the lender's default notice arguably conflicted with terms in Paragraph 19 of the Mortgage. Although Chase's notice of default provided the Thompsons with the disclosures required under Paragraph 22 of the Mortgage, Chase's default notice further stated that the Thompsons "could still avoid foreclosure by paying the total past-due amount before a foreclosure sale takes place." The First Circuit interpreted this additional language as potentially misleading, because advising borrowers that they could make payment up to the time of the foreclosure sale differed from the Mortgage's Paragraph 19, which only allowed a reinstatement payment five days before the sale of the Property.

In Traut v. Quantum Servicing Corp., on the grounds that a cover letter accompanying a forbearance agreement may have altered the terms of that agreement, the Massachusetts federal court denied a loan servicer's motion for summary judgment in a lawsuit where the borrowers claimed breach of contract arising out of a loan modification agreement. The forbearance agreement required an additional down payment and six monthly installment payments. The cover letter to that agreement stated that the loan "will be modified," modification documents "will be generated" and some of the arrearage would be forgiven if six monthly payments were made. The servicer did not permanently modify the loan because two of the six payments on the forbearance agreement were late resulting in a breach.

There are borrowers out there who believe that the Massachusetts Obsolete Mortgage Statute, M.G.L. c. 260 sec. 33, relieves them of their repayment obligations. This statute, amended back in 2006, provides that five years after a mortgage reaches its term (or 35 years after the time the mortgage is recorded where a maturity date is not specified) it will be discharged by operation of law absent the timely recording of an extension or affidavit. The 2006 amendment specifically applied to all existing mortgages. The law is supposed to provide clarity in conveyancing and protect borrowers if their mortgagee or servicer failed to issue a discharge of the mortgage after the mortgage reaches its term.

Like Bruce Springsteen, a Massachusetts bankruptcy debtor said "no surrender" when it came to his home. In EverBank v. Chacon, a panel of the Massachusetts Appeals Court issued a non-binding decision that a debtor's "surrender" of real property in a bankruptcy petition does not waive defenses to an eventual foreclosure. EverBank had foreclosed on Mr. Chacon's home mortgage, acquired the property at the sale, and then sought to evict him through summary process action filed in Massachusetts state court. Mr. Chacon claimed that that EverBank did not comply with a HUD regulation that requires a face to face meeting prior to foreclosure rendering the foreclosure void.