Federal Court Rejects PNC Bank’s Bid to Dismiss Consumer Class Action – Case Update

In February of 2020, Westbrook Law PLLC filed a class action complaint against PNC Bank, captioned Polonowski v. PNC Bank, N.A. The complaint alleges that, contrary to specific requirements of the federal Truth in Lending Act (“TILA”), PNC Bank routinely fails to send consumers periodic loan statements if they are going through a bankruptcy, even if the consumers have reaffirmed their mortgage debts to PNC. The complaint alleges that this practice harms consumers by preventing them from receiving notice of interest rate changes, minimum payment amounts, remaining balance, and other critical information.

In May of 2020, PNC filed a motion to dismiss the complaint, arguing that PNC could not be liable for violating TILA because PNC would have “violated federal law” if it had provided periodic loan statements. PNC argued that the automatic stay provided in the bankruptcy code prohibited the sending of any loan statements, even after the plaintiffs’ loan had been reaffirmed and the plaintiffs’ remaining debts had been discharged. On behalf of the plaintiffs, Westbrook Law opposed the motion to dismiss.

The presiding district judge, Hon. Paul L. Maloney, referred PNC’s motion to the magistrate judge for a report and recommendation. The magistrate judge sided with PNC and recommended the court grant the motion to dismiss. The plaintiffs objected and requested that Judge Maloney conduct a fresh review of the motion.

Today, Judge Maloney issued the court’s opinion, rejecting the report and recommendation and denying PNC’s motion dismiss. The court emphasized that once a discharge order has entered in a bankruptcy case, the bankruptcy code does not prohibit the sending of statements regarding a reaffirmed debt. The court further found that the Real Estate Settlement Procedures Act (“RESPA”) could not be narrowed by its implementing regulations (“Regulation X”), and thus the plaintiffs’ secondary claim that PNC unlawfully failed to correct servicing errors brought to its attention was viable and could not be dismissed.

As a result of today’s decision, the case against PNC will move forward. Westbrook Law hopes to hold PNC accountable for habitual violations of TILA, obtain compensation for a class of consumers affected by these practices, and ultimately force PNC and other lenders to provide critical financial information to consumers.

TJW

Provide and Protect with a Family Trust

Spring is the season for planning. Many of us are putting together event and travel plans for the first time in a long time. It’s also the perfect time to consider long-term planning for your family. What plans do you have in place to prepare for your disability, or to take care of your family in that worst-case scenario, death?

Revocable family trusts are estate planning tools I recommend for clients often. These trusts are like fictitious containers that hold your assets, like your home. Life insurance and other payable-upon-death benefits can be routed to a family trust for distribution by a person’s choice of trustee, according to the instructions provided in the trust document.

Family trusts avoid probate proceedings for the assets they contain. An even greater benefit is the amount of control trusts can provide over how and when your assets are distributed to your beneficiaries. This makes them especially useful for families with young children. A will alone can provide for the parent’s choice of a guardian and conservator for minor children, but a family trust can do much more, including placing age restrictions and other conditions on the child’s receipt of their inheritance, while allowing distributions for education and support while they are young. Parents who are unsure that their child could responsibly handle a substantial inheritance (including potentially large life insurance benefits) at age 18 can specify a longer schedule for that child to receive one or several payments instead. Additional gifts can be conditioned upon specific educational or other achievements. Endless variations are possible.

Westbrook Law PLLC offers family trust packages for individuals and married couples that include a customized trust document, a pour-over will for each client, one or more real property deeds to place assets into the trust, powers of attorney for health care and finances, and other documents to effectuate the purposes of the trust and powers of attorney. Our document forms are updated regularly to keep pace with the ever-evolving laws surrounding estates and trusts, but also written for clarity and to eliminate confusing legalese whenever possible. Our clients leave with a strong understanding of what their documents mean and how they are best used.

We offer estate planning services that range from the simplest single will or power of attorney up to complex, multi-trust packages for special needs children, second marriages, creditor/asset protection, estate tax savings, and various other scenarios. Contact us to set up a free initial consultation.

TJW

Mortgage Servicer Disregarded Loan Modification Agreement and Is Liable for Debt Collection Abuses, Federal Court Finds

The United States District Court for the Western District of Michigan issued an important published opinion early this month in the case of Macholtz v. Carrington Mortgage Services, LLC, finding, after a “journey through a thick summary judgment record” that detailed a “15-year struggle between plaintiff and a series of lenders,” that the mortgage servicer defendant’s refusal to acknowledge a loan modification agreed to by its predecessor made it liable to the consumer plaintiff under various state and federal consumer protection laws. The lawsuit, filed in early 2019 by Westbrook Law PLLC in Grand Rapids, Michigan, seeks damages for the plaintiff and to unwind a foreclosure sale.

The lawsuit challenged the conduct of the mortgage servicer, Carrington Mortgage Services, LLC, and the bank it worked for, Wilmington Savings Fund Society FSB. Carrington qualified as a “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”) because it began servicing the mortgage after the predecessor servicer, CitiMortgage, had declared a default. CitiMortgage had also previously entered into a modification agreement with the plaintiff, but failed to ever “on-board” the modification or acknowledge its existence. Eventually, after demanding to be paid huge sums of money that were not justified under the modified terms of the loan, Carrington and Wilmington foreclosed on the plaintiff’s Berrien County home, which he had owned for 22 years.

The lawsuit alleged violations of the Real Estate Settlement Procedures Act (“RESPA”); Truth in Lending Act (“TILA”); FDCPA, Michigan Mortgage Brokers, Lenders and Servicers Licensing Act (“MBLSLA”); Michigan Regulation of Collection Practices Act (“MRCPA”), and common-law wrongful foreclosure and breach of contract. The court found violations of TILA, FDCPA, MBLSLA, and MRCPA on the part of Carrington and Wilmington and set the case for trial regarding damages and other remedies.

Consumer advocates in Michigan have often lamented the erosion of protections for homeowners under state and federal law over the last 20 years. It is true that consumers in Michigan have fewer protections than they did during the 1980s and 1990s. However, while holding mortgage servicers and banks accountable remains challenging, the Macholtz opinion shows that the remaining federal and state protections can be potent tools for redressing consumer abuses.

TJW

How to Dispute a Credit Card Billing Error

Stressed young sitting Asian woman hands holding credit card and bills worry about find money to pay credit card debt and all loan bills. She is putting hand on her head. Financial problem concept.Reading through your credit card statement each month is a good practice to be sure you were billed correctly. Your credit card issuer expects you to pay for the charges listed on your billing statement, so if you spot an error, you should inform your credit card issuer right away to clear up the error.

Timeframe for Credit Card Disputes

You must send your dispute letter within 60 days that the billing statement containing the error was mailed to you. Your credit card issuer is not legally required to resolve billing errors that you dispute after these 60 days and you may be on the hook for the balance, even though it wasn’t billed correctly.

Many credit card issuers will investigate your dispute even if you make it by phone, as long as it’s within the 60-day window. Following up with a letter gives you an extra layer of protection and gives you an opportunity to provide proof that supports your claim.

Once the credit card issuer receives your dispute letter, they’re required to respond in writing within 30 days. They must also resolve the dispute within two billing cycles of receiving your letter. You’re not required to pay anything on the disputed charges while the credit card issuer investigates, but you do have to make any other required minimum payments and finance charges. Missing your required minimum payment will lead to a late fee, and possibly a late notice added to your credit report.

What to Put in Your Credit Card Dispute Letter
The dispute letter can be simple. In your letter, include the transaction or transactions that you’re disputing and the reason you’re making the dispute. Send copies of any proof, e.g. a receipt, that support your dispute. If you’ve already called about the error, mention the date and time of the phone call in your letter and the name of the representative who assisted you.

When you’re ready to mail off your billing error dispute letter, check your credit card statement for the credit card issuer’s address for correspondence. Note that this address is usually different from the address where you mail your payment.

Keep a copy of the letter with the original receipts or other proof for your records.

Fifth Third Bank Opened Fraudulent Accounts – Were You Affected?

Since late 2016, the account fraud scandal at Wells Fargo has been well publicized. Responding to financial incentives put in place at the management level, bank employees created millions of accounts for bank customers without their knowledge or consent, resulting in many instances in the assessment of unearned, fraudulent fees. Wells Fargo has paid hundreds of millions of dollars in fines as a result, and faces a total loss of roughly three billion dollars.

Now, the Consumer Financial Protection Bureau has signaled that Fifth Third Bank may have been involved in a similar scheme of generating fraudulent accounts between 2008 and 2016, in violation of the Truth in Savings Act, Consumer Financial Protection Act, and other laws and regulations.

Westbrook Law PLLC is experienced in bringing class action lawsuits under circumstances in which a repeated practice violates consumer protection laws. If you banked with Fifth Third Bank at any time during the period from 2008 to 2016 and may have had one or more fraudulent accounts opened in your name, please contact us for a consultation.

TJW

Class Action Against Michigan Collection Attorneys and Debt Buyers Reinstated by United States Court of Appeals for the Sixth Circuit

Today the United States Court of Appeals for the Sixth Circuit released its opinion in VanderKodde v. Mary Jane M. Elliott, P.C., a lawsuit brought by Westbrook Law PLLC in 2017 alleging widespread unlawful practices by prominent Michigan collection law firms Mary Jane M. Elliott, P.C. and Berndt & Associates, P.C., along with their clients, large debt buyers Midland Funding, LLC and LVNV Funding, LLC. The lawsuit alleges that the defendants routinely added unlawful and grossly excessive amounts of interest to judgments they obtained against Michigan consumers in state district courts, and that this practice violated the federal Fair Debt Collection Practices Act.

We believe tens of thousands of Michigan consumers have been affected by this practice and that millions of dollars may have been unlawfully collected from them.

At the trial court level, the defendants raised a procedural defense based on the “Rooker-Feldman doctrine,” which disallows federal district courts from acting as appeals courts for state-court judgments. The district court agreed and dismissed the lawsuit. We appealed the dismissal to the Sixth Circuit.

By its opinion today, the Sixth Circuit reversed the dismissal of the lawsuit, effectively reinstating the case and allowing it to proceed. The court emphasized that the plaintiffs in our case were complaining of unlawful conduct of the defendants independent from any state-court judgment: their calculation of judgment interest at an excessive rate and their subsequent attempts to collect excessive debt amounts through garnishments.

The VanderKodde case reflects the importance of class action litigation where thousands of consumers have been harmed by a routine practice by a debt collector or financial institution. While many individual class members may have suffered only small harms, the total amount unlawfully collected by the defendants through this practice may have been enormous. We intend through the VanderKodde lawsuit to pursue justice and compensation for all those harmed.

TJW

Estate Planning and Administration

We are up to date on the changing legal landscape surrounding wills and trusts and can assist our clients to establish, amend, or administer their estate plans. Our emphasis is on crafting plain-language, easily understood estate and trust documents that work within the law to ensure our clients’ individual wishes are carried out.  We can also create health care and financial powers of attorney that are compliant and effective, providing peace of mind in case of disability. 

The reality is a trust can be a fantastic tool for the average person because it simplifies things in the event of your death. So a trust allows you the -grantor- to specify exactly how your estate will be distributed to your beneficiaries when you die, and in the process can avoid probate and heartache.

A family trust is a trust established specifically for the benefit of members of a particular family. The purpose of creating a family trust is to protect and manage family assets for current and/or future generations.

We are here to guide you through whichever process is needed and understand there can be many emotions involved. As we work together you will have peace of mind that everything will be exactly how you deem it.

Shopping Center Violated Disabled Toddler’s Civil Rights, According to New Federal Complaint

Today, a federal lawsuit was filed in the United States District Court for the Western District of Michigan against Texas companies Spigel Properties, Inc. and S & S Shopping Centers, Ltd. on behalf of two-year-old Claire Dykstra of Wyoming and her parents, Andrew and Hiliary Dysktra.  The Defendants own and manage Rogers Plaza Town Center in Wyoming.  The Complaint alleges violations of the Americans with Disabilities Act of 1990 (ADA) and the Michigan Persons with Disabilities Civil Rights Act (PWDCRA).

Claire and her parents are represented by attorneys Scott A. Noto of The Britt Law Group PC and Theodore J. Westbrook of Westbrook Law PLLC.

The lawsuit stems from an incident in which Claire, who was born with a condition that causes delays in learning to walk, was practicing walking with her grandfather and physical therapist at Rogers Plaza. When she stopped to rest and sat on the floor, the property manager told her sitting on the floor was not allowed. After her grandfather explained her condition and her need to take rest breaks periodically, the manager ordered them to leave and not come back. The incident has been publicized by several local media outlets, including local Fox, ABC, and NBC affiliates. In the lawsuit, Claire’s parents allege violation of ADA and PWDCRA provisions that make it unlawful to discriminate against persons with disabilities in providing public accommodations.

Inquiries regarding the case may be directed to Theodore Westbrook or Scott Noto.

TJW

New Class Action Lawsuit Against Mortgage Servicer Real Time Resolutions Claims Threats to Harm Credit Ratings Broke the Law

Mortgage loan servicers typically collect and process payments for mortgage loans on behalf of the owners of those loans. If your loan statements come from Ocwen, Nationstar (now using the quizzical alias “Mr. Cooper”), or Seterus, just to name a few, you are dealing with a servicer. Real Time Resolutions, Inc., another servicer, is the latest target of a consumer class-action lawsuit filed by Westbrook Law PLLC in the United States District Court for the Western District of Michigan, Bushouse v. Real Time Resolutions, Inc.

The new lawsuit alleges that Real Time violated federal and state law through its routine practice of threatening consumers with reporting obsolete, negative credit information about them. Whereas the law does not allow credit reporting of most negative items that are past seven years old, 15 U.S.C. § 1691c(a), the complaint alleges that Real Time continues to threaten negative reporting well beyond the seven-year mark. This practice, which could frighten consumers into paying obsolete debts they no longer have any legal obligation to pay, is alleged to violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e; the Michigan Occupational Code, M.C.L § 339.915; and the Michigan Mortgage Brokers, Lenders, and Servicers Licensing Act, M.C.L. § 445.1672. The plaintiff seeks damages for herself and other Michigan citizens who received the threatening communications.

Our expertise in credit reporting law–i.e., the federal Fair Credit Reporting Act–and consumer collection law informed this lawsuit and many others on behalf of Michigan consumers. If you have concerns about whether a practice by a debt collector or mortgage servicer is fair or lawful, contact us for a consultation.

TJW

Police Department Changes Repossession Policy in Response to Civil Rights Lawsuit Brought by Westbrook Law PLLC

When a repossession agent unexpectedly arrived at our client’s home, the client physically intervened to prevent the unlawful repossession from taking place. Then the agent called the police. When City of Wyoming officers responded to the call, they prevented our client from intervening further and told him and the agent that the agent was free to complete the repossession.

Westbrook Law PLLC brought suit in January of 2018 on behalf of the client, alleging violations of 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments by the city and the responding officers. The case, captioned Patterson v. City of Wyoming, ended in a settlement in September of 2018, with the city paying damages as well as implementing a new policy for responding to similar calls.

Due process requires that state actors such as police do not assist with private repossessions without a court order where the vehicle owner disputes the lien holder’s right to repossess the vehicle. This is especially true when the repossession attempt causes a breach of the peace and thereby becomes unlawful under Michigan law. Such a dispute is a civil matter to be resolved in a lawsuit, not a criminal matter, and responding police officers are required to do no more than is necessary to maintain public safety.

If you have had a similar experience with police officers assisting in a repossession, contact us.

TJW