That Delivery App Listing You Never Agreed To? Michigan Law May Have Something to Say About It.

Kent County restaurant owners: if DoorDash, Grubhub, or Uber Eats is listing your restaurant without your permission, you may have real legal leverage — and you may not have to pay out of pocket to use it.

It usually starts with a phone call from an angry customer.

They ordered through an app. The food arrived cold, forty minutes late, and it wasn’t what they thought they were paying for. Or the item they ordered has been off your menu since last spring. Or they were charged $19 for a sandwich you sell for $13. They don’t blame the app. They blame you — because as far as they can tell, you chose to be on that platform.

But you never signed anything. Nobody asked. Somewhere along the way, a delivery platform simply built a page for your restaurant: your name, your logo, photos of your dining room, a menu scraped from who-knows-where, and prices you never set. To anyone scrolling their phone in Grand Rapids or Kentwood or Rockford, it looks like a partnership. It looks like you want them ordering this way.

What it actually costs you

Restaurant owners across Kent County describe the same pattern:

  • Your reputation takes the hit for someone else’s service. Every late delivery, every wrong order, every soggy container becomes a one-star review with your name on it.
  • Your prices get distorted. Inflated menu pricing makes you look expensive to customers who have no idea a third party added the markup.
  • Your customers get pulled away from your own channels. Orders that would have come through your phone line, your website, or your front door get intercepted — often at a worse margin, sometimes at no margin at all.
  • Your brand gets used without payment or permission. Your trademarks, your logo, your photographs, your goodwill. Built over years. Borrowed for free.
  • Your kitchen gets whipsawed. Orders arrive for items you no longer make, at prices you didn’t set, with drivers you’ve never met walking into your lobby.

And your customers lose too. They pay more than they should, get an experience you’d never have signed off on, and walk away thinking less of a restaurant that did absolutely nothing wrong.

This is not just frustrating. In Michigan, it may be unlawful.

Here is what a lot of restaurant owners don’t know: Michigan has specific statutory protections that address exactly this conduct. They are not vague. They are not buried in general fraud law. The Legislature addressed this problem directly.

Those protections can carry real consequences for a platform that ignores them, including:

  1. Statutory damages — meaning a restaurant may be entitled to recover a minimum amount set by law, and in some circumstances punitive damages on top of it.
  2. Attorney fees paid by the platform — Michigan law may require the offending delivery service to pay a prevailing restaurant’s reasonable attorney fees. That changes the economics entirely. It means a single independent restaurant doesn’t have to fund a fight against a multibillion-dollar platform out of its own thin margins.

That last point matters most. These companies count on the assumption that a neighborhood restaurant will never find it worthwhile to push back. Michigan law was written to change that math.

If this is happening to you, let’s talk.

I’m evaluating these claims for restaurants in Grand Rapids, Wyoming, Kentwood, Grandville, East Grand Rapids, Ada, Rockford, Lowell, and throughout Kent County — independents, small groups, and family operations alike.

If you have found your restaurant listed on a delivery platform you never authorized, or you’re fielding complaints about an app you never joined, I’d like to hear about it. An initial conversation costs you nothing, and it will tell you quickly whether you have something worth pursuing.

Contact me here.

Bring what you have: screenshots of the listing, examples of wrong menu items or inflated prices, any customer complaints or reviews tied to app orders, and any correspondence you’ve had with the platform. If you don’t have all of that, come anyway. We’ll sort it out together.

This post is general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Every situation is different, and legal claims are subject to deadlines — if you think this applies to your restaurant, don’t wait to ask.

Consumer Fraud Whistleblowers Wanted

The Michigan Supreme Court just breathed new life into the state’s once-aggressive Consumer Protection Act (“MCPA”).

From 1999 until last week (July 31, 2026), the MCPA was almost entirely toothless. Even if the MCPA prohibited a deceptive or fraudulent business practice–it outlawed many dishonest billing, advertising, and sales scams–a business holding any sort of business license typically couldn’t be sued successfully under the Act. This was because, in 1999 an activist, “business-friendly” Michigan Supreme Court interpreted a subsection of the Act to mean it did not apply to any licensed industry. Almost every business is legally required to have a state license in Michigan: health care providers, car dealers and service shops, gas stations, banks, chiropractors, lawyers, accountants, child care providers, even barbers. The act was effectively dead.

In a new decision released last week, Attorney General v. Eli Lilly & Co., the Michigan Supreme Court found that licensed businesses can be liable under the MCPA for fraudulent and deceptive practices. This was a common-sense reading of the text of the MCPA itself, which the court acknowledged had been wrongly interpreted in the 1999 decision and cases following it.

The MCPA contains broad prohibitions of deceptive trade practices:

1. Misrepresenting the identity, origin, or quality of what’s sold — false claims about source, sponsorship, certification, geographic origin, ingredients, benefits, grade, style, or passing off used goods as new; also disparaging a competitor by false statements of fact. § 903(1)(a)–(f)

2. Deceptive advertising, pricing, and inducements — advertising with no intent to sell as represented, bait advertising without a quantity disclosure, phony price-reduction claims, “free” offers with buried conditions, rebates contingent on post-closing events, and prize offers tied to sitting through a sales pitch. § 903(1)(g)–(i), (r), (w), (ff)

3. Manufactured need and high-pressure tactics — claiming a repair or replacement is necessary when it isn’t, fabricating a home defect that endangers the family, delivering unrequested goods as though they were ordered, and coercion through the timing and nature of a sales presentation. § 903(1)(j)–(l), (aa)

4. Obscuring legal rights, credit terms, and warranties — creating confusion about a party’s rights, obligations, or remedies, about credit terms, or about a salesperson’s authority to close; unconspicuous warranty disclaimers; unknowing waivers of statutory rights; and having the consumer sign acknowledgments the merchant knows to be false. § 903(1)(m)–(p), (t), (v)

5. Material omissions and false impressions — failing to disclose a material fact the consumer couldn’t reasonably discover, failing to disclose facts made material by the seller’s own affirmative representations, and any statement that leaves the consumer reasonably believing the state of affairs is other than it is. § 903(1)(s), (bb), (cc)

6. Failure to deliver what was promised — promising prompt or timely performance the merchant knows won’t happen, gross discrepancies between oral pitch and written contract, failure to provide promised benefits, and failure to promptly refund deposits or release security interests after cancellation. § 903(1)(q), (u), (y)

7. Exploiting vulnerability and grossly excessive pricing — taking advantage of a consumer’s disability, illiteracy, or inability to understand the language of the agreement, and charging a price grossly in excess of market. § 903(1)(x), (z)

8. Violations of specific statutory mandates — environmental and “degradable/recyclable” marketing claims, home and telephone solicitation rules, conditioning a sale on disclosure of a Social Security number, card-receipt truncation, identity theft protection act violations, misleading tribute-band billing, and the Act’s own cross-referenced sections. § 903(1)(dd)–(ee), (gg)–(ll)

Some of these practices also violated other laws. But the MCPA came with a powerful private enforcement mechanism: unlike other laws prohibiting the same misconduct, the MCPA required the offending business to pay the attorney fees of the defrauded consumer. This was designed to incentivize lawyers to take consumer fraud cases to court, and to enable consumers to hire attorneys even when there were not huge amounts of money at issue. No one in their right mind would pay an attorney $400 per hour to sue a company over a $900 overcharge, even if the overcharge was outright fraudulent. But if the offending business had to pay those attorney fees, that’s a game changer. The MCPA tilted the field in favor of the consumer to keep Michigan’s consumer-facing businesses honest.

For more than 25 years, the MCPA was ineffective. Unscrupulous business owners and executives knew it was ineffective, and consumers were defrauded and deceived by businesses at an alarming and increasing rate. From inscrutable and misleading medical bills to systematically denied insurance claims and everything in between, consumers were mostly out of luck when it came to holding a bad business accountable. A lawyer wouldn’t take your case unless the amount of money you lost was either six figures or more and a slam-dunk case, or you agreed to pay their hourly rate–typically hundreds of dollars per hour. Consumer lawsuits were few and far between, relying on sparse federal consumer laws that only applied to a narrow set of transactions.

That changes now. After the Eli Lilly decision restoring the MCPA prohibitions, we as consumer protection attorneys, and you as consumers and insiders, have the opportunity to make Michigan a place where honesty and fairness are expected, are the norm. A place where deceiving consumers to get their money is rare, but is punished appropriately when it occurs.

Consumer fraud and deceptive practices are often hard for the consumer to even identify. Confusing language in agreements, fast talking, misdirection and outright lies may prevent the consumer from knowing anything about how it is they’re being cheated. But they’re left with the conviction that the business they’ve dealt with cheated them and it has cost them money.

Sometimes consumer fraud and deception are systematic within a business organization–known to insiders but difficult or impossible for the consumer to find out on their own. Unscrupulous businesses may train employees to fudge numbers, change a billing code, charge the client for a service not provided, use a deceptive sales pitch, or otherwise cheat, in ways that unfairly cost the consumer money. Some businesses may incentivize such misconduct through their compensation structure, and look the other way as employees deceive consumers by not performing work the consumer paid for them to perform.

These are only a few examples, but they point up an important truth: insiders–people with detailed knowledge of a deceptive or fraudulent business practice–have been given a potent tool to bring an end to that practice. In short, if you’ve had enough of your employer cheating the individuals and families it deals with, the restoration of the MCPA means that firms like Westbrook Law PLLC can represent the defrauded consumers–in individual cases or class actions–and bring lawsuits to punish the bad business. Those lawsuits sometimes bankrupt the business; in other instances, the business may survive but end the practice.

Enforcement of the MCPA, if done thoroughly, will result in better, more honest and transparent businesses that serve their customers better, statewide, over the long run. Can you imagine a day-to-day life in which you didn’t routinely feel like a business was trying to scam you? That is our vision at Westbrook Law, one case at a time.

If you have detailed knowledge of a deceptive, unfair, or fraudulent business practice that involves consumer transactions, we would love to hear from you. Contact Us

Michigan’s Consumer Protection Act Is Back

After more than 25 years, the Michigan Supreme Court has restored the state’s most important consumer protection statute

On Friday, July 31, 2026, the Michigan Supreme Court did something consumers and the lawyers who represent them have been waiting on for the better part of my career. In Attorney General v Eli Lilly and Company, the Court overruled two decisions — Smith v Globe Life Insurance Co (1999) and Liss v Lewiston-Richards, Inc (2007) — that had quietly reduced the Michigan Consumer Protection Act to something close to a dead letter.

What the MCPA was supposed to do

The Legislature passed the Consumer Protection Act in 1976, and it was aggressive by design. It bans “[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce,” then lists specific prohibited practices — false claims about why a price was reduced, charging a price “grossly in excess” of what similar goods sell for, and many more.

Two features gave the Act teeth. It can be enforced both by the Attorney General and by ordinary consumers filing their own suits. And it shifts fees: a consumer who proves a violation recovers actual damages or $250, whichever is greater, plus reasonable attorney fees. MCL 445.911(2).

That last part matters more than it sounds. A $900 loss is a real injury to the person who suffered it, but nobody can afford to pay a lawyer by the hour to chase it. Fee shifting is how the Legislature made sure the size of the harm doesn’t decide whether a person can find counsel.

How the statute was hollowed out

The Act exempts “[a] transaction or conduct specifically authorized under laws administered by a regulatory board or officer.” MCL 445.904(1)(a). (Emphasis added.) Read naturally, that is narrow: if a regulator blessed the very conduct you’re complaining about, you can’t call it deceptive.

Smith read it differently. The question, the Court said in 1999, is not whether the specific misconduct was authorized, but whether the general transaction was — regardless of whether the misconduct itself is prohibited. Liss extended that reasoning in 2007 to licensed residential home builders.

The consequence was predictable, and Justice Michael F. Cavanagh predicted it in dissent: most businesses selling to consumers hold some license or operate under some regulatory scheme. If a general license is enough, most of them are immune.

That is exactly what followed. Courts applying Smith and Liss held the MCPA inapplicable to home builders, car dealers, car makers, mortgage lenders and servicers, real estate agents, plumbers, doctors, grocery stores, casinos, and pesticide applicators. The mere existence of a license became enough to immunize a defendant, with no inquiry into whether the misconduct had anything to do with what the regulator actually authorized. The perverse result: the more heavily regulated the industry, the more complete its protection.

What the Court held

The case grew out of the Attorney General’s investigation into Eli Lilly’s insulin pricing. Anticipating that Lilly would raise the exemption, the AG asked the courts to declare up front that Smith and Liss did not bar the investigation. The circuit court and the Court of Appeals both said the MCPA didn’t apply, because selling pharmaceuticals is a regulated activity.

The Supreme Court reversed. Writing for a four-justice majority, Justice Noah Hood pointed out that the word “general” appears nowhere in the statute — Smith and Liss had inserted it while writing “specifically authorized” out. The correct question is whether the specific conduct at issue was authorized by law, not whether the industry is regulated.

The Court found no sufficient reason to preserve the two decisions. They had made much of the MCPA “completely unworkable,” and a business’s interest in relying on them to deceive consumers, the Court said, “is not a valid reliance interest.”

Three justices dissented, but on standing grounds only; they expressly took no position on whether Smith and Lisswere rightly decided.

One caution: the Court did not hold that Eli Lilly violated the MCPA. It held that the exemption no longer closes the door before anyone gets to ask.

Why this matters

I have spent almost twenty years litigating consumer protection cases in Michigan, and in most instances, the MCPA has been a statute I had to explain to clients rather than use. A business would deceive someone, we would look at the Act, then look at Smith and Liss, and go find another theory — often there was no fee shifting to go along with the workable theories, which meant no case at all.

That changes now. Michigan consumers again have a statute that reaches deceptive conduct by regulated businesses, and Michigan lawyers again have the fee-shifting provision that makes those cases possible to bring. Not every claim will win; the exemption still exists and still applies where a regulator genuinely authorized the conduct at issue. But the threshold question is no longer “is this defendant licensed?” It is “was this conduct specifically authorized?” For most deceptive practices, the answer is no.

I am glad to have this tool back.

If you believe a business has treated you unfairly or deceptively, Westbrook Law would like to hear from you. Claims that were foreclosed for the last quarter century may now be viable. Get in touch through our contact page: https://westbrook.law/contact/

Navigating the Modern Family Tree: Why Blended Families Can’t Afford DIY Estate Planning

Most family trees used to look simple, with neat, orderly branches. Today, they often look more like an interconnected grove, if not a jungle. With remarriages, stepchildren, half-siblings, and co-parenting arrangements, modern blended families are more common—and more dynamic—than ever before.

While blending a family can brings new joys, it also brings complex financial and legal dynamics. That is why relying on generic DIY software (high-tech artificial intelligence included) or a simple, decades-old will can present dangerous risks to your legacy.

Here is how working with Westbrook Law can help protect the people you love most.

1. The Danger of “Accidental Disinheritance”

The most common trap in blended family estate planning is the default assumption that leaving everything to your surviving spouse is enough.

In a traditional first-marriage scenario, leaving all assets to your spouse typically means those assets eventually pass down to your mutual children. In a blended family, however, leaving everything to a new spouse creates a real risk:

  • Your spouse could later rewrite their will to favor only their biological children, completely cutting out yours. This is more common than one might think, particularly if the surviving spouse later remarries or survives much longer than the deceased spouse. Rock-solid relationships now may degrade with time or changed circumstances after a death.
  • If you pass away without a clear plan, state laws might automatically transfer joint assets to your spouse, leaving your children with no legal claim.

A competent estate planning attorney knows how to structure special trusts—such as Qualified Terminable Interest Property (QTIP) trusts—that can provide financial support for your surviving spouse during their lifetime while ensuring that remaining assets pass to your biological children afterward.

2. Stepchildren Have No Automatic Legal Inheritance Rights

Many parents love their stepchildren as their own. However, under Michigan law, stepchildren do not automatically inherit anything unless they have been legally adopted or explicitly named in a formal estate plan.

If you want to ensure a stepchild receives a specific asset, financial gift, or portion of your estate, vague verbal promises won’t hold up in probate court. An attorney ensures your intentions are explicitly spelled out in legally binding documents so no family member is unintentionally excluded.

3. The “Silent” Drivers: Beneficiary Designations and Joint Ownership

A will isn’t the only document that dictates where your money goes. Accounts with beneficiary designations—like 401(k)s, IRAs, life insurance policies, and joint bank accounts—bypass your will entirely.

It is surprisingly common for someone in a second marriage to update their will, only to forget that an ex-spouse is still listed as the primary beneficiary on a major life insurance policy. A good attorney looks at your complete financial picture, harmonizing your beneficiary designations with your core estate plan so nothing slips through the cracks.

4. Preventing Costly Family Disputes Before They Start

When family dynamics are complex, grief often amplifies anxiety and tension Unclear or ambiguous legal documents often lead to contentious probate battles, strained relationships, and expensive legal fees that erode the assets you worked so hard to build.

A good attorney helps you anticipate potential friction points, drafts precise legal language that stands up in court, and facilitates sensitive conversations with clarity and care.

At Westbrook Law, we bring to the estate planning landscape our experience representing clients in disputes that have escalated to probate court proceedings. Having represented clients in will and trust contests and litigation concerning life insurance beneficiary designations, we are particularly tuned to the types of situations and provisions that increase risks of disputes, challenges, and lawsuits. We’ve observed how these disputes can tear families apart. And we are here to help you avoid them.

How Westbrook Law Can Help You Protect Your Legacy

Navigating a complex web of family dynamics and financial goals requires more than legal templates—it requires personalized strategy and compassionate guidance. That is where Westbrook Law steps in.

Our team specializes in crafting tailored estate planning solutions that reflect the reality of modern families. Here is how we help bring clarity and peace of mind to your planning:

  • Customized Plan Design: We take the time to map out your unique family tree, identifying potential legal blind spots and structuring trusts that protect both your spouse and your children.
  • Proactive Strife Prevention: By using clear, unambiguous legal language and objective planning strategies, we minimize room for misunderstanding—stopping family disputes before they ever begin.
  • Holistic Estate Coordination: We don’t just draft a will and call it a day. We evaluate your entire financial picture—including life insurance, retirement accounts, and property deeds—to ensure every asset aligns with your true intentions.

The single largest benefit to working with us is peace of mind: confidence that your wishes are legally protected and that your loved ones will be cared for without unnecessary conflict.

The Takeaway: Estate planning for a blended family isn’t just about transferring wealth—it’s about preserving peace, protecting relationships, and ensuring every member of your family is cared for according to your true wishes. Don’t leave your family’s future to legal defaults, template forms, or AI models. Schedule a consultation with the team at Westbrook Law today to build a strategy tailored to your unique family structure.

Federal Court Grants Preliminary Approval of $9MM Settlement in Debt Collection Abuse Class Action

On November 3, 2025, the United States District Court for the Western District of Michigan preliminarily approved a class-action settlement valued at approximately $9 million in debt reductions, credits, and payments to over 5,200 Michigan consumers who were overcharged interest on judgments entered against them. Final approval of the settlement is set to be heard by the court on March 9, 2026.

Westbrook Law PLLC brought the case, VanderKodde v. Mary Jane M. Elliott, P.C., against two of the largest debt buyers in the nation, LVNV Funding and Midland Funding, and the collection law firm that represented them, in 2017. The complaint alleges that while Michigan law allowed judgment interest ranging from 2-4% during the relevant time period, the defendants calculated judgment interest at an unlawfully high 13% rate and proceeded to collect the excess interest from consumer debtors through garnishments of bank accounts and tax refunds. The lawsuit alleged that this practice violated the federal Fair Debt Collection Practices Act (“FDCPA”) and Michigan state debt collection laws.

The parties have agreed to a settlement that recalculates all class members’ judgment balances based on the lawful interest rate, a reduction of approximately $7 million, and further reduces each class member’s balance by $500, totaling over $2 million. Class members whose judgment balances are eliminated by these reductions are entitled to an additional payment of $150 each. In the settlement, the defendants also agree to pay the attorney fees of class counsel and the costs of administering the settlement.

Class action settlements are subject to court approval for fairness, and the court’s preliminary approval is the first in a two-step approval process. The court’s November 3, 2025 order reflects its conclusion, based on the parties’ submissions, that the proposed settlement is fair to the class members and that class counsel and the named plaintiffs have acted in the best interests of the class.

After more than eight years of hard-fought litigation, the class settlement in VanderKodde comes as a welcome victory for Michigan consumers.

TJW

New Lawsuit: Ayers Basement Systems, LLC Contaminated Grand Rapids Family’s Home with Lead

When Tyler and Megan Freeman hired Ayers Basement Systems, LLC to fix the foundation of their Grand Rapids home, they couldn’t have imagined what would happen next. Unknown to them, their home, built in 1948, contained lead paint. If left undisturbed, lead paint isn’t hazardous to humans; however, it becomes toxic–especially to young children like the Freemans’ two-year-old daughter–if it is ingested or inhaled in the form of dust.

Contractors like Ayers who renovate pre-1978 homes in ways that could disturb lead paint are required by law to obtain certification from the EPA. The law also requires them to follow a precise set of rules to ensure that any lead dust they create is contained and properly disposed of. Ayers was not certified and did not follow the lead-safe rules when it began to grind lead paint off the basement walls in the Freemans’ home. The entire home is now contaminated with lead dust and unsafe for habitation. It may cost hundreds of thousands of dollars to clean, and Ayers has refused to pay the cost.

This was far from an innocent mistake. Ayers maintained an EPA certification from 2015 to 2020, so it was well aware of the legal requirements for dealing with older homes where lead may be present. Ayers was fined by the EPA in 2019 for failing to follow lead-safe rules in a Lansing home. Notwithstanding the lapse of its EPA certification, Ayers has not stopped doing renovation projects in older homes. Recently, Ayers was cited by the Michigan Department of Health and Human Services (“MDHHS”) for failing to follow a state law requiring contractors like Ayers to distribute to homeowners a brochure that explains the dangers of disturbing painted surfaces in older homes.

Ayers is one of the largest residential renovation companies in Michigan, with over 100 employees and annual revenues in the tens of millions of dollars.

Westbrook Law PLLC represents the Freeman family in its lawsuit against Ayers, which seeks to recover the cost of lead remediation in their home, compensation for mental stress and emotional distress, and exemplary damages due to the extreme and outrageous nature of Ayers’s unlawful actions.

TJW

Court of Appeals Weighs in on Competing Property Rights between Airports and Neighbors

Living next door to an active public-use airport can lead to legal disputes beyond the obvious noise, vibration, and safety considerations. As a client of Westbrook Law discovered, interactions between airports and their neighbors can include demands by the airport that neighboring property owners cut their trees or otherwise alter their property for the benefit of the airport users. When our client, Suzanne Yopek, refused to allow the Brighton Airport Association to cut down several 100-plus-year-old pin oak trees on her land, the association sued her, claiming her trees constituted a “public nuisance” under the Michigan Aeronautics Code. At the heart of BAA’s claim was that Yopek’s trees had allegedly grown into an “approach protection area,” defined by state (Michigan Aeronautics Commission) and federal (FAA) regulations, that extends outward and upward from the end of BAA’s runway. What BAA failed to acknowledge was that it had extended its runway hundreds of feet toward Yopek’s land–creating the very problem it complained of–and further was out of compliance with an ordinance requiring BAA to own the approach protection area.

The Livingston County Circuit Court determined that although Yopek’s trees did not encroach on a smaller state-defined protection area, they did encroach on the larger, FAA-defined approach area and thus constituted public nuisances that must be abated. The trial court failed to consider whether BAA itself created any encroachments. We appealed.

In a newly-released published decision, the Michigan Court of Appeals rejected the trial court’s conclusion that FAA regulations are enforceable under Michigan’s public nuisance statute, finding that only encroachments of the state-defined approach areas could give rise to a public nuisance claim. The Court of Appeals also criticized the lower court’s failure to consider whether BAA’s actions in extending the runway and operating in violation of township ordinances barred its claim. The case was remanded to the trial court for further proceedings.

Public airports wield outsized power, influence, and regulatory backing compared to their neighboring property owners. However, their reach is not unlimited. As the Court of Appeals decision demonstrates, individual property rights matter, even when your neighbor has a runway.

TJW

Federal Court Rejects PNC Bank’s Bid to Dismiss Consumer Class Action – Case Update

In February of 2020, Westbrook Law PLLC filed a class action complaint against PNC Bank, captioned Polonowski v. PNC Bank, N.A. The complaint alleges that, contrary to specific requirements of the federal Truth in Lending Act (“TILA”), PNC Bank routinely fails to send consumers periodic loan statements if they are going through a bankruptcy, even if the consumers have reaffirmed their mortgage debts to PNC. The complaint alleges that this practice harms consumers by preventing them from receiving notice of interest rate changes, minimum payment amounts, remaining balance, and other critical information.

In May of 2020, PNC filed a motion to dismiss the complaint, arguing that PNC could not be liable for violating TILA because PNC would have “violated federal law” if it had provided periodic loan statements. PNC argued that the automatic stay provided in the bankruptcy code prohibited the sending of any loan statements, even after the plaintiffs’ loan had been reaffirmed and the plaintiffs’ remaining debts had been discharged. On behalf of the plaintiffs, Westbrook Law opposed the motion to dismiss.

The presiding district judge, Hon. Paul L. Maloney, referred PNC’s motion to the magistrate judge for a report and recommendation. The magistrate judge sided with PNC and recommended the court grant the motion to dismiss. The plaintiffs objected and requested that Judge Maloney conduct a fresh review of the motion.

Today, Judge Maloney issued the court’s opinion, rejecting the report and recommendation and denying PNC’s motion dismiss. The court emphasized that once a discharge order has entered in a bankruptcy case, the bankruptcy code does not prohibit the sending of statements regarding a reaffirmed debt. The court further found that the Real Estate Settlement Procedures Act (“RESPA”) could not be narrowed by its implementing regulations (“Regulation X”), and thus the plaintiffs’ secondary claim that PNC unlawfully failed to correct servicing errors brought to its attention was viable and could not be dismissed.

As a result of today’s decision, the case against PNC will move forward. Westbrook Law hopes to hold PNC accountable for habitual violations of TILA, obtain compensation for a class of consumers affected by these practices, and ultimately force PNC and other lenders to provide critical financial information to consumers.

TJW

Provide and Protect with a Family Trust

Spring is the season for planning. Many of us are putting together event and travel plans for the first time in a long time. It’s also the perfect time to consider long-term planning for your family. What plans do you have in place to prepare for your disability, or to take care of your family in that worst-case scenario, death?

Revocable family trusts are estate planning tools I recommend for clients often. These trusts are like fictitious containers that hold your assets, like your home. Life insurance and other payable-upon-death benefits can be routed to a family trust for distribution by a person’s choice of trustee, according to the instructions provided in the trust document.

Family trusts avoid probate proceedings for the assets they contain. An even greater benefit is the amount of control trusts can provide over how and when your assets are distributed to your beneficiaries. This makes them especially useful for families with young children. A will alone can provide for the parent’s choice of a guardian and conservator for minor children, but a family trust can do much more, including placing age restrictions and other conditions on the child’s receipt of their inheritance, while allowing distributions for education and support while they are young. Parents who are unsure that their child could responsibly handle a substantial inheritance (including potentially large life insurance benefits) at age 18 can specify a longer schedule for that child to receive one or several payments instead. Additional gifts can be conditioned upon specific educational or other achievements. Endless variations are possible.

Westbrook Law PLLC offers family trust packages for individuals and married couples that include a customized trust document, a pour-over will for each client, one or more real property deeds to place assets into the trust, powers of attorney for health care and finances, and other documents to effectuate the purposes of the trust and powers of attorney. Our document forms are updated regularly to keep pace with the ever-evolving laws surrounding estates and trusts, but also written for clarity and to eliminate confusing legalese whenever possible. Our clients leave with a strong understanding of what their documents mean and how they are best used.

We offer estate planning services that range from the simplest single will or power of attorney up to complex, multi-trust packages for special needs children, second marriages, creditor/asset protection, estate tax savings, and various other scenarios. Contact us to set up a free initial consultation.

TJW

Mortgage Servicer Disregarded Loan Modification Agreement and Is Liable for Debt Collection Abuses, Federal Court Finds

The United States District Court for the Western District of Michigan issued an important published opinion early this month in the case of Macholtz v. Carrington Mortgage Services, LLC, finding, after a “journey through a thick summary judgment record” that detailed a “15-year struggle between plaintiff and a series of lenders,” that the mortgage servicer defendant’s refusal to acknowledge a loan modification agreed to by its predecessor made it liable to the consumer plaintiff under various state and federal consumer protection laws. The lawsuit, filed in early 2019 by Westbrook Law PLLC in Grand Rapids, Michigan, seeks damages for the plaintiff and to unwind a foreclosure sale.

The lawsuit challenged the conduct of the mortgage servicer, Carrington Mortgage Services, LLC, and the bank it worked for, Wilmington Savings Fund Society FSB. Carrington qualified as a “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”) because it began servicing the mortgage after the predecessor servicer, CitiMortgage, had declared a default. CitiMortgage had also previously entered into a modification agreement with the plaintiff, but failed to ever “on-board” the modification or acknowledge its existence. Eventually, after demanding to be paid huge sums of money that were not justified under the modified terms of the loan, Carrington and Wilmington foreclosed on the plaintiff’s Berrien County home, which he had owned for 22 years.

The lawsuit alleged violations of the Real Estate Settlement Procedures Act (“RESPA”); Truth in Lending Act (“TILA”); FDCPA, Michigan Mortgage Brokers, Lenders and Servicers Licensing Act (“MBLSLA”); Michigan Regulation of Collection Practices Act (“MRCPA”), and common-law wrongful foreclosure and breach of contract. The court found violations of TILA, FDCPA, MBLSLA, and MRCPA on the part of Carrington and Wilmington and set the case for trial regarding damages and other remedies.

Consumer advocates in Michigan have often lamented the erosion of protections for homeowners under state and federal law over the last 20 years. It is true that consumers in Michigan have fewer protections than they did during the 1980s and 1990s. However, while holding mortgage servicers and banks accountable remains challenging, the Macholtz opinion shows that the remaining federal and state protections can be potent tools for redressing consumer abuses.

TJW