In the shadows of the rising sun, which would later become the revelation
of the most powerful tool in the arsenal against "dual tracking
," a small number of lawyers were pining away over the final draft
of the proposed legislation that was, in early December 2013, still only
a glimmer of hope for consumers. Thank G-D, my colleagues and I were strategizing
as to how the regulations under the Consumer Financial Regulations (CFR),
would play out in state courts throughout Florida. We knew the overarching
legal principles, which commands a separation between state law and Federal
law, would be a challenge, however with a little know-how and battle-seasoned
attorneys from the front lines in the "war" against Lender impropriety,
the hurdle appeared to be crossed at last. The Federal Consumer Financial
Protection Bureau's (CFPB) regulation(s) under 1024.41, effective
as of January 10, 2014, would in fact be applicable not only to the States
and their respective rulings over State law matters (property), but the
State courts by in large, would be powerless to rule outside of the provisions.
Yehezkel Rodal, a/k/a "Chezky" (my mentor), and I, spent hours
arguing back and forth as to the applicability of what would be commonly
known as the CFPB. We went through case after case, until we found, that
the very cases the Federal Savings Banks and Nation Banks have been using
for years to by-pass their State requirements of filing a cost bond, would
now bind them to the requirements and regulation of the Federal Government,
thus eviscerating State power to allow them to do otherwise. The CFPB
left the Lenders no way out of their responsibility to adhere to the new
regulations and finally honor borrowers' good faith efforts to modify,
or mitigate the losses on their loans. The question then still remains,
what is the efficacy of the CFPB "sword?" Does the CFPB strike
broadly, or is it a precision tool to be utilized strategically? I think
the answer to these questions is that the CFPB, while a "sword,"
is sheathed in a "stone." The "stone" here refers
to the burden Plaintiff may choose to undertake, or not.
While a Plaintiff is fully susceptible to legal remedies and civil penalties
for violating the CFPB, the first goal is to have it accepted, albeit
begrudgingly by the Circuit Court where so many of these cases progress.
While the court CANNOT force a Plaintiff to violate the law and expose
themselves to the ramifications of going against the CFPB (
See. RESPA), the Plaintiff can elect to disregard their supervisory regulatory
body and foolishly proceed on dispositive motions, trial, and/or sales,
despite complete (or facially complete) modification packages being submitted,
in derogation of the rules and any sense of decency. For more information
on CFPB and helping Borrowers fight back, let's make an appointment
to meet at the Loan Lawyers office, and see how we can help you use this
tool to defend your home once and for all.
 "Dual-tracking" is the term used to identify the once common
practice of Financial Institutions (Banks) to fly under two flags simultaneously.
The first (1) is the flag of helping the borrowers 'right' themselves
when they have defaulted, by offering them and assisting them through
the process of modifying delinquent loans, and/or assisting the borrower(s)
just prior to defaulting, to get a better rate on their current loan(s).
The second (2) is whilst under the guise of modifying your loan, the banks
instituting, or proceeding with, a foreclosure cause of action to take
the borrower's home, claiming they have simply been delinquent and
should not be permitted under the law to keep their homes.