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37 » VISIT US ONLINE @ DSNEWS.COM recission claims can be brought as counterclaims in cases like judicial foreclosures and suits on notes. Generally, TILA claims are litigated in Federal Court; however, if a borrower in a state court action files a counterclaim under TILA, the matter will most likely be ruled on by the state court. Of course, the attorneys should be aware of how TILA cases are generally handled in their jurisdiction. But, having a repository of case law from across the country gives your local counsel a strategic advantage because it can use these other cases as persuasive authority when briefing at the state court level. Simply put, determining where and how state and federal laws intersect and how they affect a lender or loan servicer is a complex task that can, and should, be aided by good local counsel in each jurisdiction. What about the recent Credit Suisse suit (Barardi v. Select Portfolio Servicing, Inc.)? What can servicers take away from the judge's decision to side with the plaintiff? In early April, the Honorable Robert N. Scola, Jr., of the United States District Court for the Southern District of Florida denied a servicer's Rule 12(b)(6) Motion to Dismiss in a putative class action alleging violations of the FDCPA, RESPA, and state law. Without opining about the case or order itself, it does bring up several practical tips and reminders that servicers and attorneys can utilize to help minimize overall cost for servicers. e Barardi case discusses, in part, the interplay between 12 U.S.C. § 2605(e) (Quali- fied Written Requests) and 12 CFR Part 1024, Subpart C, which contains 12 C.F.R. § 1024.36 (Requests for Information). As an aside, the Bu- reau of Consumer Financial Protection issued a Final Rule which will be effective, in part, on October 19, 2017, that pertains to Requests for Information. In responding to Qualified Writ- ten Requests, one must keep in mind that the goal of these laws and regulations is to provide transparency for the consumer. Additionally, it is important for servicers to have systems set up to thoroughly review purported Qualified Written Requests. One item that should be reviewed is whether the communication is actually a Qualified Written Request. Another is whether the language in the letter could reasonably trigger other federal law or regulation response deadlines. For example, a letter that is sent to a servicer's law firm or that does not state that his or her account is in error or otherwise does not specifically detail the information sought may not qualify as a Qualified Written Request. However, that same letter may trigger an obligation to respond under 12 CFR § 1024.36, or perhaps even under another act all together. Occasionally, a Qualified Written Request or Request for Information will also contain FD- CPA debt validation requests, TILA demand for proof of ownerships, or FCRA requests for investigations. Making sure that a servicer's in-house employees and outside counsel are well versed in these areas of law, and the language that can trigger a required response could lead to decreased servicing costs. While it may take a few hours to properly review or respond to each correspondence, that cost pales in comparison to defending a putative class action that survives a Motion to Dismiss. Your firm is known for its technological capabilities. How does tech benefit a servicer on the legal end? One fulfilling aspect of having cutting-edge technology is that it allows us, as attorneys for servicers and lenders, to quickly and efficiently communicate with our clients. It also allows us to "shrink the map" and easily transfer data and documents. For example, we practice in Geor- gia. Recently, a firm that practices exclusively in the Northeast reached out to us for help. ey had caused a Sheriff 's Sale to be conducted for their client, who does not have a presence in Georgia, and later learned that one of the borrowers had filed a bankruptcy petition in Georgia. After the initial vetting by the servicer was completed, we were able to quickly establish a secure connection to transmit all of the neces- sary data and documentation that we needed to file a Motion to Modify the Automatic Stay Nunc Pro Tunc and to validate a Sheriff 's Sale. e ability to quickly and securely share this information allowed us to get the necessary motion and objections filed so as to prevent the case from being dismissed prior to validating the Sheriff 's Sale. "Simply put, determining where and how state and federal laws intersect and how they affect a lender or loan servicer is a complex task that can, and should, be aided by good local counsel in each jurisdiction."

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