Hinshaw & Culbertson LLP today announced that Maura K. McKelvey, a partner in the firm's Boston office, has been selected as one of Massachusetts Lawyers Weekly's Top Women of Law for 2018. McKelvey has served in numerous leadership roles at the firm, serving terms on the firm's Management Committee and Executive Committee. She is a member of the firm's Consumer Financial Services Practice Group, and previously served as the co-chair of the practice.

Hinshaw & Culbertson LLP is pleased to announce that partner and past Government Practice Group Leader Robert T. Shannon has been named Managing Partner. In addition to appointing Mr. Shannon as Managing Partner, Hinshaw Chairman Kevin Joseph Burke announced several new leadership appointments to the firm's Management Committee, Practice Group, and Partner-in-Charge positions. 

The national law firm of Hinshaw & Culbertson LLP is pleased to announce that Richard G. De La Mora, Schuyler B. Kraus, Michael M. Marick, and Maura K. McKelvey have been appointed to the firm's Management Committee. The seven-member Management Committee is Hinshaw's highest governing body. Mr. De La Mora, Mr. Kraus, Mr. Marick and Ms. McKelvey join the other sitting members of the Management Committee: Robert J. Romero, Peter D. Sullivan and Todd M. Young.

Maura McKelvey, a Partner at Hinshaw & Culbertson LLP, was quoted in The National Law Journal's February 6, 2012 article, “Banks Claim Judge's Foreclosure Stay Violates Due Process.” The U.S. Court of Appeals for the First Circuit, including Justice David Souter, sitting by designation, heard arguments concerning a Petition for Writ of Mandamus and an appeal of the U.S. District Court for the District of Rhode Island's order requiring the defendants in every case assigned to the In re: Mortgage Foreclosure Cases docket to participate in a mandatory mediation program without first determining personal or subject matter jurisdiction over the defendants or claims, and "staying" all defendants assigned to the docket from undertaking nonjudicial foreclosure actions or pursuing evictions in state court. Ms. McKelvey appeared and presented the oral argument on behalf of all of the defendants in the more than 143 consolidated cases. She urged the court to find that the district court in In re Mortgage Foreclosure, Misc. No. 11-mc-88-M, violated the defendants’ due process rights by ordering the parties into mandatory mediation before determining personal and subject matter jurisdiction over the defendants and by applying its "stay" as an injunction without providing the enjoined defendants with notice or an opportunity to be heard prior to entry of its order. Ms. McKelvey's practice includes the representation of mortgage lenders and servicers in cases alleging mortgage fraud, predatory lending and violation of consumer protection statutes relative to loan origination and servicing. These matters include claims arising under TILA, RESPA, HOEPA, HAMP and Mass. Gen. Laws ch. 93A, and lawsuits arising out of contested foreclosures and evictions in Rhode Island and Massachusetts state and federal courts.

Hinshaw partners Lauren Campisi, Schuyler Kraus, Brian McGrath, Maura McKelvey, and Akeela White will present at the Mortgage Bankers Association's premier conference on Legal Issues and Regulatory Compliance. The conference will take place in San Diego, California, from May 5th to 8th, 2024. Hinshaw is a sponsor of the event, which is designed for legal and compliance professionals working in real estate finance. Attendees will receive the latest information on regulatory initiatives, litigation, legislation, and enforcement activity that affects the industry. The conference will also have interactive sessions to ensure an engaging experience for the participants.

Hinshaw is a proud sponsor of the Mortgage Bankers Association's Legal Issues and Regulatory Compliance Conference 2022!

Hinshaw's Maura McKelvey will present "Anticipating Disputes Relating to Forbearance Programs: How to Interpret Consumers' Statutory Rights and Appropriately Disclose Terms" at the 27th National Forum on Residential Mortgage Regulatory Enforcement & Litigation at 11:45 a.m. Central on November 17, 2020. McKelvey and her fellow presenters will discuss various federal and state forbearance programs passed earlier this year that are aimed at easing the impact of the COVID-19 pandemic on homeowners. The panel will focus on program expectations on mortgage lenders and servicers, and how such organizations can address ambiguities and help ensure compliance.

Increased regulatory enforcement is on the horizon. Foreclosure activities will eventually resume. Consumer litigation will follow.

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.

Cities and towns have become increasingly aggressive in their efforts to avoid blight resulting from vacant and foreclosed properties and enforce the state and local sanitary codes. At what point does a valid code violation enforcement effort become an excessive fee or receiver lien, motivated by cities and towns' need to raise revenue? Is there any way for a property owner to challenge a city's or town's $500/day fine for failing to correct minor code violations? A state court in Florida is currently hearing just such a case.

Less than three months after hearing oral arguments in Obduskey v. McCarthy & Holthus LLP, Case No. 17-1307, the United States Supreme Court held, in a 9-0 decision, that a business engaged in nonjudicial foreclosure proceedings is not a "debt collector" under the Fair Debt Collection Practices Act (FDCPA, "the Act"), except for the limited prohibitions set forth in 1692(f)(6). The decision provides helpful guidance to law firms and loan servicers who pursue nonjudicial foreclosures.

Third Circuit Holds That FDCPA Section 1692g(a) Claim Must Be Filed Within One Year of Initial Communication In Peterson v. Portfolio Recovery Associates, LLC, 2011 WL 2181508 (3d Cir. 2011), plaintiff debtor sued, alleging that defendant debt collector had failed to provide a validation notice pursuant to Section 1692g(a) of the Fair Debt Collection Practices Act (FDCPA). In December 2003, the debt collector sent a letter to the debtor at an address believed to be the latter’s residence. The debtor did not receive the letter. In 2007, the debt collector made a series of telephone calls attempting to collect the debt. The debtor denied that he owed the debt and gave the debt collector his then-current address. In 2008 and 2009, the debt collector sent debtor letters (and electronic mail) in an effort to settle the debt and learn more about the debtor’s identity-theft claim. None of the debt collector’s communications with the debtor in 2007, 2008 or 2009 included a validation notice pursuant to the FDCPA. The District Court granted the debtor’s motion for summary judgment, holding that the 2003 letter did not satisfy Section 1692g(a) because it was not actually sent to the debtor’s address. The Court further held that the debt collector was obligated to provide a new validation notice when it made its initial contact with the debtor by telephone in 2007. Last, the Court reasoned that the one-year statute of limitations did not apply because the debt collector’s 2008 and 2009 letters could serve as a basis for a “non-time-barred action.”On appeal, the U.S. Court of Appeals for the Third Circuit rejected the argument that the FDCPA claim was timely based on the 2008 and 2009 communications and reversed the District Court’s entry of summary judgment in favor of the debtor. The Third Circuit recognized that: (1) there can only be one initial communication between a debt collector and a consumer, and (2) communications between a debt collector and a consumer after the initial contact are irrelevant for the purposes of the FDCPA’s validation notice requirements. As such, the Appellate Court declined to apply the “continuing violations” rule, which would serve to “re-set the statute of limitations clock” with each subsequent communication sent without notice. Instead, the Court, following other federal circuit court decisions, reasoned that the FDCPA’s statute of limitations should begin to run on the date of the debt collector’s last opportunity to comply with the act (i.e., five days after the first communication). Based on the facts presented in this case, the Third Circuit held that the one year statute of limitations began to run five days after the debt collector’s first communication with the debtor in 2007, and that his claim filed in June 2009, was untimely as a matter of law. 

U.S. Supreme Court Takes Eleventh Circuit Case on TCPA JurisdictionOn June 27, 2011, the U.S. Supreme Court granted certiorari in Marcus Mims v. Arrow Financial Services, LLC,Case No. 10-12077, 2010 WL 4840430 (11th Cir. 2010). The Court will decide whether the Telephone Consumer Protection Act (TCPA) provides for federal question jurisdiction under 28 U.S.C. § 1331. Hinshaw will follow this case and keep readers of this newsletter advised of any developments in the case.

Supreme Court Holds Arbitration Clauses Barring Class Actions Not Unconscionable