Postage Costs to Rise

U.S. Postal Service announced Tuesday that it will increase postage rates on Jan. 22, including a 1-cent increase in the cost of first-class mail, to 45 cents.

Bankruptcy Court Filing Fee Increase

On September 13, 2011, the Judicial Conference of the United States voted to increase certain miscellaneous filing fees, effective November 1, 2011.  The "administrative fee" portion of the filing fee for each chapter will increase from $39 to $46, which will have the result of increasing the overall filing fee for each chapter by $7.00.  Thus, as of November 1, the filing fees for each chapter will be as follows:

Chapter 7--$306
Chapter 11--$1,046
Chapter 12--$246
Chapter 13--$281
Chapter 15--$1,046

In addition, the fee for amending schedules will increase from $26 to $30, the adversary filing fee will increase from $250 to $293, the fee for filing a notice of appeal will increase from $250 to $293, and the fee for filing a motion for relief from stay will increase from $150 to $176.

There are other miscellaneous fee increases for certification, exemplification, audio recording, records searches, record retrieval, and returned checks.

Matt Weidner for Office

In case you live under a rock.  Matt Weidner is running for State Rep in District 52 against Jeff Brandes.

http://mattweidnerlaw.com/blog/register-to-vote-do-it-now-dont-wait/

http://battlegroundtampabay.com/2011/08/foreclosure-attorney-matt-weidner-files-to-run-against-rep-jeff-brandes/

Brandes is a Republican.   Weidner is listed as Independent.   

Contributions to:

MATTHEW WEIDNER
329 4TH AVENUE SOUTH
ST. PETERSBURG FL 33701


Weidner is against making Florida a Non-Judicial State.      Where does Brandes stand?

Tampa Bay Rowdies

Watching FC Tampa Bay v. Minn Stars

Sent from my Verizon Wireless Phone

DHS to unveil new airport security policy for kids

http://www.msnbc.msn.com/id/44504084?GT1=43001

Children 12 years old and younger soon will no longer be required to remove their shoes at airport security checkpoints, Homeland Security Secretary Janet Napolitano told Congress on Tuesday. The policy also includes other ways to screen young children without resorting to a pat-down that involves touching private areas on the body.


Kids should take there shoes off and go through the screening machine too.  hello terrorists do not care about there kids--- Vietnam War- Middle East- ring any bells????

Pets as a Medical Expense in Your Ch 13

http://www.feedblitz.com/f/?FBLike=http://lawprofessors.typepad.com/bankruptcyprof_blog/2011/08/pets-and-chapter-13.html

Bankruptcy Filings Down

August consumer bankruptcies decreased 11 percent nationwide from August 2010, according to data from the National Bankruptcy Research Center (NBKRC). The data showed that the overall consumer filing total for August declined to 113,432, down from the 127,028 consumer filings recorded in August 2010. Each month of 2011 has recorded fewer bankruptcies than last year. 

9th Cir Allows Oregon UDCPA Claim Based on Failure to Respond Under FCBA, Actual Damages Under FCBA w/o Detrimental Reliance, Multiple Penalties for Multiple FCBA

The U.S. Court of Appeals for the Ninth Circuit recently held that a creditor violated the federal Fair Credit Billing Act ("FCBA"), and Oregon's Unlawful Debt Collection Practices Act ("UDCPA"), when it reported a debt as delinquent to credit agencies and continued its collection activities without first providing an explanation to the debtor who had contested the debt.

According to the Ninth Circuit:  (1) these alleged actions by the creditor violated the Oregon UDCPA, based on the alleged violation of the FCBA;

(2) the debtor was entitled to actual damages and attorney fees under the FCBA, regardless of whether the debtor demonstrated detrimental reliance on the representations made by the creditor; (3) TILA's limitation of a single recovery for multiple failures to disclose does not necessarily apply to the FCBA; and  (4) the trial court failed to properly apportion an attorneys fee award as to the debtor's successful claims.

A copy of the opinion is available at:

http://www.ca9.uscourts.gov/datastore/opinions/2011/08/30/10-35230.pdf

This case arose from a misunderstanding regarding a $645 charge on the credit-card bill of the debtor.  The creditor allegedly misidentified the basis for the charge but then allegedly failed to respond to the debtor's requests for information about it. The creditor allegedly continued to seek payment and reported the debt as delinquent to credit agencies, despite the debtor's alleged protest.

In doing so, the Ninth Circuit noted that creditor admittedly violated the federal Fair Credit Billing Act ("FCBA").  After unsuccessfully attempting to get a direct response from the creditor, the debtor filed an action in the District of Oregon, alleging inter alia claims under the FCBA and Oregon's Unlawful Debt Collection Practices Act ("UDCPA").

The trial court dismissed the UDCPA claim and limited the debtor's total recovery under the FCBA to $1000.  The Ninth Circuit reversed.

According to the Ninth Circuit, if a credit card holder sends a written notice disputing a charge within sixty days of receiving a bill, FCBA requires a credit-card issuer to acknowledge the dispute within thirty days, investigate the matter, and provide a written explanation of its decision within ninety days.  If a creditor fails these requirements, it is subject to civil liability and forfeiture of the disputed amount.

Similarly, the Ninth Circuit held, the Oregon UDCPA prohibits a debt collector from "[a]ttempt[ing] to or threaten[ing] to enforce a right or remedy with knowledge or reason to know that the right or remedy does not exist."

Examining the above statutes, the Court concluded that the trial court erred in holding that the debtor failed to state a claim under the Oregon UDCPA.  The Court reasoned, that pursuant to the requirements imposed under the FCBA, the creditor did not have the right to attempt to collect the disputed charge or to report it to credit agencies as delinquent without first providing a written explanation.  These allegations, the Court held, also violated the Oregon UDCPA.

The Court also rejected that a detrimental reliance component was required for the debtor's Oregon UDCPA allegations, reasoning that there was simply no relevant disclosure or conduct under these circumstances that the debtor could have relied upon.  Thus, the debtor's lack of detrimental reliance was immaterial to a determination of whether the creditor's violations resulted in actual damages.  Debtors, explained the Court, cannot rely on unmade explanations.  Otherwise, creditors could simply avoid actual damages under FCBA by never responding to billing disputes.

Next, the Court determined that the creditor's collection actions and adverse credit reports were not subject to the single-recovery limitation under 15 U.S.C. 1640(g).  Further, the Court also concluded that the debtor was entitled to all reasonable attorney fees, including those incurred for the appeal, related to the debtor's FCBA claims.

NY Banking Dept Reaches Servicing/Foreclosure Practices Agreement with Goldman, Litton, Ocwen

New York's Department of Financial Services and Banking Department entered into an agreement with Goldman Sachs Bank, Ocwen Financial Corp. and Litton Loan Servicing LP regarding certain servicing and foreclosure practices.

A copy of the Agreement on Mortgage Servicing Practices is available at:

http://www.ins.state.ny.us/press/2011/p1109011_Ocwen_cond_appr_final_sig.p

df

As part of the Agreement, Goldman Sachs will write down approximately $13 million in unpaid principal, consisting of forgiveness on 25 percent of the principal balance all 60-day delinquent first-lien home loans in New York serviced by Litton and owned by Goldman Sachs and its subsidiaries as of August 1, 2011.

The Agreement is a condition of Ocwen's acquisition of Litton, and does not preclude any future investigations of past practices or release any future claims or actions.  In addition, if any party to this Agreement agrees with any other regulator to adopt greater consumer protections or other more rigorous standards than are contained in this Agreement, such other provisions shall be applicable to the party.

Among other things, the Agreement requires servicing and foreclosure practice changes in the following areas:

- Document execution

- Accuracy of documentation

- Standing to foreclose

- Identification and contact information of the note holder, and account/payment history, on request

- Compensation to borrowers, and voiding of third-party sales, in all wrongful foreclosures

- Regular quality assurance audits of foreclosure and bankruptcy proceedings

- Oversight of third-party vendors

- Adequate staffing and training

- Single-point-of-contact notices and related requirements

- Toll-free number set up for new loans upon acquisition or transfer of servicing

- Modification notices

- Independent review of loan mod denials

- Complaint handling and resolution procedures

- Limits on attorneys fees, late fees and delinquency charges, property valuation fees

- Limits on lender-placed insurance

Ocwen and Litton must implement these requirements within 60 days following the acquisition. Goldman, which is exiting the mortgage servicing business with the sale of Litton, has agreed to adopt these servicing practices if it should ever reenter the servicing industry.

Articles of Interest

Foreclosures: Uncle Sam and His 248,000 Homes

U.S. taxpayers are the biggest owners of repossessed homes. For now, they’re stuck with them.  http://www.businessweek.com/magazine/foreclosures-uncle-sam-and-his-248000-homes-09012011.html

http://www.bankersonline.com/regs/226/226-23.html

http://www.bankersonline.com/regs/226/226-2.html

Robo-signed mortgage docs date back to late 1990s

http://www.google.com/hostednews/ap/article/ALeqM5getrYeAQRv3rG7noQ7QmPQQlnIaw?docId=b6873213020e4758bcd75ad770819850

As county officials review years' worth of mortgage paperwork, in some cases combing through one page at a time, they are finding suspect signatures — either signed with the same name by dozens of different people, improperly notarized or signed without a review of the facts in the paperwork — on all sorts of mortgage documents, dating as far back as 1998, The Associated Press has found.

10.9 million Houses Underwater

Nearly 10.9 million, or 22.5 percent, of all residential mortgages had negative equity at the end of the second quarter of the year, according to a report released Tuesday by the analytics firm CoreLogic. The figure is actually a slight improvement from the 22.7 percent of all mortgages with negative equity in the first quarter of 2011. CoreLogic says nearly three-quarters of homeowners in negative equity situations are also paying higher, above-market interest on their mortgages.  Nevada held the top position in terms of negative equity with 60 percent of all of its mortgaged properties underwater, followed by Arizona (49 percent), Florida (45 percent), Michigan (36 percent), and California (30 percent). http://www.corelogic.com/

10.9 million Houses Underwater

Nearly 10.9 million, or 22.5 percent, of all residential mortgages had negative equity at the end of the second quarter of the year, according to a report released Tuesday by the analytics firm CoreLogic. The figure is actually a slight improvement from the 22.7 percent of all mortgages with negative equity in the first quarter of 2011. CoreLogic says nearly three-quarters of homeowners in negative equity situations are also paying higher, above-market interest on their mortgages.  Nevada held the top position in terms of negative equity with 60 percent of all of its mortgaged properties underwater, followed by Arizona (49 percent), Florida (45 percent), Michigan (36 percent), and California (30 percent). http://www.corelogic.com/

2nd Cir Rejects Borrower's Arguments that Release Provisions Were Obtained by Duress

The U.S. Court of Appeals for the Second Circuit recently affirmed the dismissal of allegations that a lender obtained release agreements from a borrower through economic duress, because no evidence appeared in the record to suggest that the lender made a wrongful threat against the borrower.


Wells Fargo Bank, N.A., ("Wells Fargo") agreed to extend a line of credit to Interpharm, Inc. ("Interpharm"), a drug manufacturer. The line of credit was secured by various assets, including Interpharm's accounts receivable, inventory, and equipment. Interpharm defaulted on the line of credit agreement, and subsequently entered into and defaulted on each of a series of forbearance agreements with Wells Fargo.

Each forbearance agreement included a provision wherein Interpharm released all claims to date against Wells Fargo, as well as a merger clause stating that the written agreement represented the entire agreement between the parties. In addition, one of the forbearance agreements reflected Wells Fargo's decision to exclude certain receivables from the calculation used to determine the amount of money available to Interpharm, as well as to reduce the percentages used for that calculation.

After Interpharm defaulted on the final forbearance agreement, the company was liquidated. Interpharm then sued Wells Faro, alleging numerous causes of action including breach of contract and unjust enrichment.

Interpharm's causes of action were based on the theory that it had been forced to agree to the forbearance agreements through economic duress.

As you may recall, New York law provides that a contract may be voided based on economic duress where the "agreement was procured by means of (1) a wrongful threat that (2) precluded the exercise of its free will. See Stewart M. Muller Constr. Co. v. N.Y. Tel. Co., 40 N.Y. 2d 955, 956 (1976). A threat to exercise a legal right cannot constitute economic

duress. See 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y. 2d 447,453 (1983).



After reciting the relevant case law, the Court had little difficulty in affirming the lower court's decision to dismiss Interpharm's claims.

Wells Fargo had the legal right to terminate the line of credit.

Consequently, the Court held that Wells Fargo's threat to do so was not wrongful, and Wells Fargo's insistence that Interpharm execute various agreements to induce Wells Fargo to forbear from terminating the line of credit did not constitute economic duress.

Interpharm advanced two additional arguments. First, Interpharm argued that Wells Fargo's decision to exclude certain receivables from the calculation used to determine the line of credit was not reasonable, within the meaning of a "reasonable discretion" provision in the contract between the parties. Second, Interpharm argued that Wells Fargo purportedly agreed to maintain a higher percentage of receivables for use in that same calculation, an agreement that did not appear in any of the contracts executed by the parties.

The Court rejected both arguments. The agreement between the parties afforded Wells Fargo "reasonable discretion" in determining both the receivables to be used and the percentages of those receivables to be used to determine the amount of money available to Interpharm. The Court found that Interpharm failed to allege any facts to show that that Wells Fargo's decisions fell outside the bounds of "reasonable discretion." Further, the Court held that as the initial agreement and all subsequent forbearance agreements included merger clauses, any purported agreement that did not appear in the written contracts had no bearing on Wells Fargo's contractual rights.

Thus, the Court affirmed the lower court's judgment of dismissal.

The FDIC Offers Tips on Preparing Financially For a Natural Disaster or a Fire

Hurricane Irene, the earthquake that shook the East Coast and the deadly tornado that hit Joplin, Missouri are recent reminders that disasters rarely give advance warning and can happen anytime. The Summer 2011 issue of FDIC Consumer News features tips on how to prepare financially for a natural disaster, a fire or another tragedy, especially one that requires people to evacuate their home and not return for days or weeks. Other timely topics in the latest issue include what to know before signing up for person-to-person, or “P2P,” electronic payment services using a smartphone or mobile computer; how to solve mysteries of old bank accounts; and an update on new standards for and disclosures by mortgage loan professionals.




The latest issue can be read or printed online at www.fdic.gov/consumers/consumer/news/cnsum11.