The CFPB Is Unconstitutional, So Now What?

tsunamiThe impact of a long-awaited court ruling involving PHH Corporation is still reverberating throughout the real estate industry. The decision could radically change the way the Consumer Financial Protection Bureau (CFPB) enforces the Real Estate Settlement Procedures Act (RESPA). Because the opinion is so potentially far reaching, we will discuss it in three separate posts. In this first one, we will consider what it means for the CFPB to be unconstitutional. Continue Reading

Insurance Coverage for Class Actions: A Battle Royale

Shift-FireNo real estate business wants to get sued in a class action or pay the associated legal costs, which can be hefty. The question often arises then: Will my company’s errors-and-omissions insurance protect me if we are hit with a class action? The answer is “maybe,” and, in any event, your insurer will almost certainly fight you over the matter. So prepare yourself for a protracted legal fight against a determined adversary. The good news is that, sometimes, insureds can and do win these battles. Continue Reading

Insurance Coverage for TCPA Class Actions Remains Uphill Battle

fax_machineClass actions involving the Telephone Consumer Protection Act of 1991 (TCPA) are nothing new. What is new is that they recently hit the real estate industry. Worse yet, insurance companies have grown increasingly savvy in excluding coverage for those types of lawsuits. Nonetheless, a smart company might be able to bargain away its questionable insurance rights in exchange for settling a TCPA class action. Continue Reading

Improve Your Arbitration Clause Through Notice-and-Cure Provision

warning-alert-signRecently, some companies have dodged potential class liability by forcing would-be plaintiffs into arbitration. Other businesses have “picked off” class adversaries by paying them individual damages. Can those strategies be successfully combined? Continue Reading

Colorado Slams Door on MSAs

slamming-doorLast week, the Colorado Insurance Commissioner did directly what the Consumer Financial Protection Bureau (CFPB) has been doing indirectly for over two years: he outlawed marketing services agreements (MSAs). Very narrow opportunities for collaborative marketing remain; other states may follow suit. Continue Reading

Nationstar Loses First Round in Bout Against PMI Class Action

Calendar-Circle-DateNational restrictions on private mortgage insurance (PMI) have been in place for almost 20 years, and most lenders and servicers rigorously follow them. But a recent decision from a Pennsylvania federal court suggests that some banks may have grown lax in that regard. Continue Reading

Secret Dealings Undermine Agreement to Pursue Title Company’s Insurer

secret-meeting-shadows_2In many lawsuits, the defendant’s only significant asset is its insurance policy, which may or may not cover a resulting judgment. That can lead to collusion in which the plaintiff and the defendant agree to a settlement that is collectible only against insurance proceeds. What could possibly go wrong, you ask? Plenty. Continue Reading

Rulings on Lender-Placed Insurance Shift in Industry’s Favor

tarotI can’t recall any decision in which a judge openly compared his job to that of a tarot card reader, but a federal jurist in Florida recently did exactly that—in the context of a class action over lender-placed insurance (LPI). The prediction at hand was whether the regional appellate tribunal, the Eleventh Circuit Court of Appeals, would accept or reject the filed-rate doctrine as a defense to LPI lawsuits. Continue Reading