Author Topic: do revocations carry from one servicer to next  (Read 141 times)

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stuck in nc

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do revocations carry from one servicer to next
« on: October 23, 2014 03:11:35 PM »
My mother in law had a home loan with Bank of America.  She was tired of all the collection calls and was going to default.  She opened a CFPB complaint in 2012 or so.  She revoked consent and requested a cease and desist of all calls to her cell phone with their automated system.

She got written confirmation that they honored her revocation and cease and desist.

The loan was transferred to Nationstar Mortgage.  The calls started again.

She again stated she had written confirmation of the cease and desist and revocation.

They replied they do not have to honor that, as that applied to the previous loan holder and she would need to re-revoke consent. (they replied this in writing)

True? Keep in mind she already revoked consent.

My take is the revocation applied to Bank of America and future assigns.


howucantoo

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Re: do revocations carry from one servicer to next
« Reply #1 on: October 23, 2014 03:31:16 PM »
I'd revoke it again via CMRR.

But here is an interesting thing ;

FCC (Federal Communication Commission) acknowledged that express prior consent would be in evidence if the person provided their cell phone number as a number on the credit application at which they wanted to be reached.

However ,the creditor is responsible for demonstrating that the consumer provided prior written consent. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.

Now if MIL did not write that number on application then whatever they say is null. I had this similar situation and the creditor did not have my cell phone on the application. It had my home phone number and could not come up with either audio recording or any written consent to call the cell phone number.



I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

Brunothe JDBKiller

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Re: do revocations carry from one servicer to next
« Reply #2 on: October 23, 2014 03:49:21 PM »
What Is Not Consent? • The Following Are Not “Prior Express Consent:” – Phone number capture through Caller ID (ANI). – Express request not to call cell number (verbal or written ok per TCPA and FCC 2008 Order, but see Gager decision.) – Consent provided to one creditor or collector is not consent to call on behalf of other creditors or collectors. – Skip tracing dangerous – see Meyer v. Portfolio 2012 U.S. App. LEXIS 21136 (9th Cir. Cal. Oct. 12, 2012) - can give rise to potential class action.


The problem you may have is that this may be a mortgage servicer.

§ 1692a(6)(F)(iii) was intended to provide that "`mortgage service companies and others who service outstanding debts for others, so long as the debts were not in default when taken for servicing,'" are not debt collectors.  De Dios v. Int'l Realty & Investments, 641 F.3d 1071, 1075 n.3 (9th Cir. 2011).

If they bought the loan from BofA when it was in good standing, they are not considered a JDB or a debt collector. They are simply a new OC and not subject to the FDCPA. Some of the TCPA statutes refer to debt collectors.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

stuck in nc

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Re: do revocations carry from one servicer to next
« Reply #3 on: October 23, 2014 04:02:53 PM »
She has been in default since late 2012.  They refused to help her modify so she was going to let the house go.  It was revoked in 2012.  They sold the loan in 2014 while it was in default.

howucantoo

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Re: do revocations carry from one servicer to next
« Reply #4 on: October 23, 2014 04:33:51 PM »
What Is Not Consent? • The Following Are Not “Prior Express Consent:” – Phone number capture through Caller ID (ANI). – Express request not to call cell number (verbal or written ok per TCPA and FCC 2008 Order, but see Gager decision.) – Consent provided to one creditor or collector is not consent to call on behalf of other creditors or collectors. – Skip tracing dangerous – see Meyer v. Portfolio 2012 U.S. App. LEXIS 21136 (9th Cir. Cal. Oct. 12, 2012) - can give rise to potential class action.


The problem you may have is that this may be a mortgage servicer.

§ 1692a(6)(F)(iii) was intended to provide that "`mortgage service companies and others who service outstanding debts for others, so long as the debts were not in default when taken for servicing,'" are not debt collectors.  De Dios v. Int'l Realty & Investments, 641 F.3d 1071, 1075 n.3 (9th Cir. 2011).

If they bought the loan from BofA when it was in good standing, they are not considered a JDB or a debt collector. They are simply a new OC and not subject to the FDCPA. Some of the TCPA statutes refer to debt collectors.

The number on the application remains the same . The burden of proof lies on the party who claims consent was given. If the second in line (be it default or not) can not prove the number was VOLUNTARILY provided such as on application or other forms then they have no case.

Consent was revoked prior to the loan changing hand which makes it difficult to prove for the party claiming consent was given. IF BOA sold without notifying that consent was revoked at the time of the sale then BOA is on the hook as well.

I suggest consulting a consumer attorney who is skilled in TCPA.
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

BellEbutton

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Re: do revocations carry from one servicer to next
« Reply #5 on: October 23, 2014 08:25:10 PM »
Quote
IF BOA sold without notifying that consent was revoked at the time of the sale then BOA is on the hook as well.

Just curious:  What law says that BOA had to inform the purchaser of the revocation?