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37 » VISIT US ONLINE @ DSNEWS.COM was in trial on an FDCPA case in Los Angeles when Henson came down. I was able to cite it to the Court. e jury rendered a unanimous verdict in favor of the two servicer clients we were defending. On a related note, the CFPB is in the process of promulgating new rules to govern debt collection. We shall see whether the rules are changed in response to the pending decisions in these two cases. Another hot issue concerns the Ninth Circuit's decision in Ho v. ReconTrust Co., N.A. that sending statutorily required non-judicial foreclosure notices is not debt collection activity under the FDCPA, an issue that is in dispute in at least 15 other cases pending before the court. A petition for rehearing en banc has been filed. e court has asked the lender to file a response to the petition. Numerous amicus have appeared. Leaving aside the case law, have you seen an expansion of HBOR? No. e Homeowner Bill of Rights statutory schemes remain only in California—my primary residence—and Minnesota—the state that I grew up in. I have been expecting other states to mimic both Minnesota and California, but to date, a state statutory expansion has not incurred. With foreclosure rates back down to prerecession level, such an expansion may no longer be an issue. Are there specific states where you are seeing hot issues? New Mexico continues to be a hot bed of litigation for the industry. Tort reform in Texas resulted in many consumer lawyers turning to New Mexico. Most recently, the expansion of the New Mexico Unfair Practices Act (NMUPA) into the loan servicing context is a big development. Borrowers' counsels are using this to create liability for statements made in the loan mod context where the borrower claims mortgage statements are "false." e courts are finding these allegations are enough to win on a motion to dismiss at least. e reason this is a big deal is under the NMUPA is that the borrower will be entitled to attorneys' fees and "treble" damages automatically if they establish liability. ere is no need to prove the violation harmed the borrower in any way. In New York, the statute of limitations for foreclosure continues to be a hot issue. A February 2017 decision by a State Court of Appeals in Wells Fargo Bank, N.A., v. Cohan relied on a provision of New York law to toll the statute of limitations. CPLR section 205(a) allows for a six-month SOL tolling period recommencing an action for the same relief, if an action is dismissed for a procedural defect. In that case, a prior foreclosure action was dismissed as "abandoned" by the court and recommenced after the statute of limitations expired, but within six months of the dismissal. e new action was also commenced by a different plaintiff who was a subsequent assignee of the loan. e court found that because the prior foreclosure action was not voluntarily discontinued, dismissed for lack of jurisdiction, or a final judgment on the merits, the investor was entitled to a six-month tolling of the statute of limitations. Importantly, the court also found that this provision did apply in this case to the subsequent assignee, even though they were not the named plaintiff in the prior action. Lastly, in Washington and Oregon the Jordan v. Nationstar Mortg., LLC case is definitely a hot topic. In that case, the Washington Supreme Court held that deed of trust language authorizing a lender to secure property preforeclosure is unlawful under Washington law. We have seen one case and anticipate more cases from borrowers in Oregon making the same argument. ere isn't an Oregon decision on this case yet, but Oregon's statute is nearly identical to Washington's. "Both decisions remind us that all courts, including federal courts, can be aggressive in attacking servicer conduct and lessons need to be learned from each decision." SENTINEL Coordinating field contractors with deep, local experience in all aspects of property preservation and inspections. Rapid response, precise performance, and strong field support create superior experiences for our clients. phil.johnsen@sfsco.net 801.920.6764 x1902 SFSCO.net SENTINEL FIELD SERVICES DELIVERING THE "FIELD-FIRST FOCUS" SENTINEL

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