Residential Mortgages Lender Liability


do you find plaintiffs or borrowers attorneys running up their fees if they know they're under a fee-shifting statute and have a winning case I think that's always the fear and I think many of my clients believe that for sure I have found that depending on who you're dealing with it's it's part of negotiations it's part of the tools and their toolkit that they're going to try to apply pressure to our side running up fees I don't really want to go there and accuse anywhere that you know most of the attorneys I deal with it I think try and be reasonable try and they know they're gonna have to ultimately defend those and look if you put yourself in their position if you're negotiating a settlement and you say well I've encouraged X amount of fees and that just seems completely out of whack well that's not gonna new any real goodwill towards the other side to negotiate further so again it's a balancing act my overall answer that question would be not really do judges go to the point of looking at attorney timesheets in fee cases or do they not go that deep sure yeah I touched on this a little bit in my presentation I would say that if you find a very thorough federal judge predominantly yeah you will see line by line kind of breaking down each turn each amount maybe not every single entry but they'll look at the total amount that you know attorney John Doe or Jane Doe incurred and they will look at it for reasonableness to look after the time incurred that would be one end of the spectrum I think probably about the same they're looking at a fee petition aren't real crazy about going to an extreme level of detail so it's a little bit simpler to just say I think things are a little bit excessive here I'm going to knock it off by 1015 percent you will see that type of opinion issued as well so some do go to the level of detail you asked about David I would say it's the minority of judges for Peter Roach does the FDCPA apply to a mortgage or who did not sign the mortgage note that's a good question the the FDA the FDCPA talks about debtors a mortgage or who does not sign the mortgage is not a debtor the mortgage or who signed the mortgage is the debtor so the the notices you have to be very careful because the mortgage or is not someone who owes the money you can't collect the debt from the mortgage or you can only enforce the mortgage against a very interesting case it just came down a week or two ago Carbone against calibre which discusses what in the FDCPA applies in all to foreclosures and to the extent that a foreclosure is a collection of a debt it does to the extent that a foreclosure is not a collection of a debt but is an enforcement of a mortgage it does not so my advice is assume that it does apply to you it doesn't apply to mortgagors but if you you're supposed to give an FDCPA notice I always figure it's better to give the notice and not have to then then have someone rule the other way so technically the answer is no it does not apply the mortgage was but always better to err on the side of course you

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