FDCPA CHALLENGED IN NON-JUDICIAL FORECLOSURES: U.S. SUPREME COURT TESTIMONY

(BREAKING NEWS) —

Here’s a rare treat … oral transcripts from Dennis Obduskey v. McCarthy & Holthus, LLP:

obduskey v mccarthy & holthus llp, scotus no 17-1307_oral transcripts of supreme court proceedings

(OP-ED) —

We’ve been waiting on the arguments here, because how the FDCPA is interpreted when it comes to foreclosures in non-judicial (Deed of Trust) states is at issue and has been in conflict among the federal circuits as to whether the enforcement of a security instrument (the actual deed of trust) constitutes the “collection of a debt”.  The 10th U.S. Circuit Court of Appeals (where the case originated) says enforcement of a security instrument is not a violation of the Fair Debt Collection Practices Act because it does not constitute debt collection.

Part of the problem here, is that it is and it isn’t (enforcement of a collection of debt) but an enforcement by the Trustee to sell property which is collateral for a debt (the note).  McCarthy & Holthus LLP is a known law firm that is part of a nationwide network that foreclosures on property wherein the borrower is claimed to be in default because of non-payment on the actual obligation (the Note).

Other courts have narrowly interpreted the matter in both ways.  This is where the conflict has occurred and this is why SCOTUS is hearing the matter.  If the Trustee is only attempting to satisfy the Lender’s need to recover the collateral that was pledged and does nothing more than use the contractual obligation of publication and sale to satisfy the terms of the security instrument (deed of trust) … that’s one thing.  The second the Trustee steps over the line and retains a law firm to enforce the terms of the security instrument and demand “payment” of a “sum certain”, THEN the attempt to collect a debt IS IN FACT, where misrepresentations occur, which would constitute a violation of the FDCPA!  My non-lawyer wisdom tells me to let YOU be the judge here!

If the law firm has all of its ducks in a row, that’s one thing.  But in this case, the argument tends to indicate it didn’t, which is why Dennis Obduskey filed suit.   This case represents one of the biggest challenges to non-judicial foreclosures in the United States; thus, this is worth the read if you are contemplating such an action.  Enjoy!

P.S.: The same amount of federal and state conflict has occurred with the MERS® System and the way the courts have treated it.  Why SCOTUS won’t hear those relative arguments may change.  For now, that issue is at a standstill.

8 Comments

Filed under BREAKING NEWS, OP-ED

8 responses to “FDCPA CHALLENGED IN NON-JUDICIAL FORECLOSURES: U.S. SUPREME COURT TESTIMONY

  1. I hate to bring this up again… but this issue was addressed anbd ruled upon by the ONLY Govt. Agency SPECIFICALLY Legislated to do so. The CFPB. Please read the CFPB’s Birster Amicus Brief where they cite both their power of authority (Dodd/Frank) and their definitions. It’s here: https://www.consumerfinancemonitor.com/wp-content/uploads/sites/14/2012/04/11th-Cir.-Birster-amicus-brief.pdf Since it IS a Govt. Agency legislated to make such definitions… then the only recourse I could see a court WOULD have would be to rule as to whether or not their decision was legal and then there would still be no retroactivity to it because of the no post ex facto laws.

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    • John, Thanks for clarifying; however, Obduskey is a 10th Circuit case and Birster was an 11th Circuit case. This is what has created a conflict among the circuits, which are not binding on each other as to their respective rulings, which is why this is in front of the Supreme Court.

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      • John Reed

        Since the CFPB is a Federal Agency that has been given Legislative authority in this very specific matter… and since their announcement or presentation in this matter precedes the Obduskey “in time” does which Court hear it really make as much difference as whether or not it was presented to the Court at issue?

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  2. JohnR

    Please… if you haven’t read the Brief… Please then do so!

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  3. Pingback: FDCPA CHALLENGED IN NON-JUDICIAL FORECLOSURES: U.S. SUPREME COURT TESTIMONY – AXJ USA NEWS

  4. The CFPB has been getting watered down to the point where it will be interesting to see how the conflicts are sorted out by the nation’s highest court.

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    • John Reed

      Yes and I hate to see it… but there’s always no ex post facto Laws so we at least, for a while anyway, do have the benefit of all that they did under Cordray … IF our Legal Industry will use it.

      Like

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