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United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 11-2646 Gary Cox; Jill Cox, * * Appellants, * * v. * Appeal from the United States * District Court for the District of Mortgage Electronic
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The Court granted their petition for certiorari on appeal the denial of their petition for a preliminary injunction. It is important to note this case is in a different venue than the others which we reviewed (Dodd-Frank Act Cases No. 10-10, FTC v. American Home Services, Inc., 3:10-cv-05405, and FTC v. LoanDepository); it is also a new trial court issue. Gary and Jill Cox allege “Aurora Loan Services, Inc. (Aurora) [proceeds from loans] collected and delivered to its clients (i.e., Gary and Jill Cox) without requiring any disclosure…[s]ex. Plaintiff claims that its reputation suffered as a result because Aurora's [unidentified] competitors did not advertise Aurora's products, did not use Aurora's sales force and did not provide products to its clients or employees.” Aurora is a bank holding company in Minnesota. We agree with the trial court because our review of the record is not extensive enough to understand whether the law is clear. This is the first appeal we can find against the federal banking statutes. It is important to note that the trial court had reviewed all the pleadings and the testimony in the hearing, and we do not have a written opinion. We do not know how this case will play out on appeal because it is new. Here is a link to the complaint. After reading the complaint (or the trial court's opinion) it may seem obvious that Aurora would not be violating the FTC Act or any state law. Unfortunately, it takes some knowledge of these federal statutes and their history to understand how Aurora could be violating them in this case. The federal banking laws are very clear that a mortgage lender must keep accurate and complete information about a loan. If a lender does not get the information it is supposed to obtain, it can be held liable under the FTC Act or state law. To further complicate matters the law requires banks that make real estate loans or offer a business loan for a term of 1 year or less to provide the information to investors and borrowers. The law requires a notice be posted in a conspicuous place in a “convenient location” at the time of the first loan application. To comply with this law Aurora had to post notice a month before any first mortgage application. If it did not post this notice it could be held liable for violations of the FTC Act or other state provisions.

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