Civil Procedure Residential Real Estate

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High Court’s Encino Decision Means No Deference for CFPB View on RESPA, PHH Argues

On June 23, PHH filed a letter in the D.C. Circuit supplementing its appeal briefing in PHH Corp v. CFPB, No. 15-1177. For those of you who may have missed our prior posts on this, PHH is appealing a decision made by CFPB...more

Bank of America Wins Reversal of FIRREA $1.27B Penalty

A breach of contract is insufficient to also support a claim for fraud, the Second Circuit Court of Appeals has ruled, reversing a $1.2 billion verdict against Countrywide Home Loans in the process. What happened...more

Homeowners Who Purchase Directly from Homebuilders May Seek Recovery of Attorneys’ Fees on Claims for Breach of the Implied...

Three things have long been settled law in Arizona regarding residential construction: (1) a homebuilder owes a homeowner an implied warranty of workmanship and habitability with regard to the construction of the home; (2)...more

Defeated North Carolina Class Action Ultimately Results in Victory for Landowners – NCDOT Loses Map Act Fight

What began several years ago as a defeated attempt at a class action against the North Carolina Department of Transportation (NCDOT) ultimately resulted in a win this month for plaintiff landowners in Kirby v. NCDOT (No....more

Loan Enforcement and Creditors’ Rights

At times, lenders lose the promissory notes on defaulted loans. Lost notes are problematic because, in order to have standing to foreclose, a lender may be required in many states, including in New York, to possess the...more

Court Reverses A Probate Order Requiring An Executor To Distribute Real Property Free Of Any Liens

In In re Estate of Heider, a probate court ordered that an executor should distribute real property to a beneficiary free of liens. No. 05-14-00436-CV, 2016 Tex. App. LEXIS 5978 (Tex. App.—Dallas June 6, 2016, no pet....more

Nevada Supreme Court Clarifies Limits to its SFR Investments Decision

In September 2014, the Nevada Supreme Court, in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., held that a portion of a homeowners’ association (HOA) lien for delinquent assessments has true super-priority status over a...more

New Putative FCRA Class Action May Signal a Trend

A borrower recently filed a putative class action against Fannie Mae under the Fair Credit Reporting Act (FCRA) in federal court in Washington, D.C., alleging that Fannie engaged in unauthorized inquiries into borrowers'...more

Construction Defect Debate to be Heard by Colorado Supreme Court

The construction defects case of Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., et al. has garnered national attention since the Colorado Court of Appeals' decision in May 2015,...more

Recovery of Real Property in South Carolina After a Tax Sale

Acme Bank has a problem. Acme loaned $480,000 for the purchase of a beach house on Sullivan’s Island, South Carolina, securing the debt with a recorded mortgage. Six months ago, the bank received a letter from the county tax...more

Court Reverses Decision On The Fair Market Value Of A Residence Due To The Surviving Spouse’s Interest

In Estate of Sloan, a wife died leaving her home, and her husband was the executor of her estate. No. 02-15-00198-CV, 2016 Tex. App. LEXIS 6465 (Tex. App.—Fort Worth June 16, 2016, no pet. history). The wife’s will left all...more

Florida Court Declines to Apply a Multiplier as to Attorneys’ Fees in a First Party Insurance Coverage Dispute

In Fla. Peninsula Ins. Co. v. Wagner, 2016 Fla. App. LEXIS 8262 (Fla. 2d DCA 2016), the Second District examined whether the trial court properly applied a multiplier as to attorneys’ fees after the insured homeowners...more

Florida Court Enforces Four Year Statute of Limitations For Work Performed by Window Installer

In Brock v. Garner Window & Door Sales, Inc., 187 So. 3d 294 (Fla. Dist. Ct. App., 2016), plaintiffs, Lawrence and Laura Brock (“Plaintiffs”) sued the contractor that installed windows on their home after they sustained water...more

Court of Appeal Addresses “Prejudice” Element of Wrongful Foreclosure

If a property owner loses their property through a foreclosure sale initiated by someone who did not validly own the debt, has the property owner automatically suffered enough “prejudice” to pursue a claim for wrongful...more

Oregon Court of Appeals Holds that “Common Issue” Exception Applies to Permit Defendant Contractor to Recover Attorney’s Fees From...

In The Village at North Pointe Condominiums Association v. Bloedel Construction Co. et al., 278 Or App 354 (2016), the Oregon Court of Appeals held that defendant contractor could recover attorneys’ fees against a homeowners...more

Drilling to the Essence of a Land Use Proceeding

What type of land use proceeding is this? Finding the correct answer to this question is critical to knowing your client’s rights and avoiding legal error. Like different sports, there are distinct types of land use...more

M&A Update: New York Court of Appeals Rejects Extension of Common Interest Privilege to Merger Talks

On June 9, 2016, a divided New York Court of Appeals in a much-anticipated ruling held that the attorney-client privilege can only be maintained for communications involving third parties in situations where litigation is...more

Death of Defendant During Pendency of a Foreclosure Action – Connecticut Appellate Case Update

The Connecticut Appellate Court has weighed in on the topic of whether or not a lender foreclosing a mortgage in Connecticut must comply with the statutory process to make the administrator of the decedent a party to the...more

The Dangers of Idle Property: Squatters Rights in California

Imagine that you live in Colorado, but own a vacation home in California. You love California, but are only able to visit once a year during the summer, while your kids are on vacation from school. Typically you and your...more

Foreclosure Firm Did Not Violate FDCPA By Alleging that Mortgagor on FHA Insured Loan Was Personally Liable for Deficiency,...

A federal district court in Illinois recently dismissed a putative class action against a foreclosure firm, holding that an allegation in a foreclosure complaint that the mortgagor is personally liable for any deficiency on a...more

A New Procedure for Appointing Commissioners to Partition Property in Tennessee

Generally, any person that has an ownership interest in property in which one or more other persons also have an interest may bring an action to divide the property or to sell the property and have the proceeds therefrom...more

Insurer Correctly Non-Renewed Homeowner’s Insurance Policy

The South Carolina Court of Appeals has concluded that notice of cancellation of a homeowner’s insurance policy is controlled by S.C. Code § 38-75-1160, not the more general § 38-75-740, and that the mortgage holder was not...more

Real Property & Title Insurance Update: Weeks Ending May 29 & June 3, 2016

REAL PROPERTY UPDATE - Foreclosure/Bankruptcy Stay: because borrower’s notice of appeal was filed during pendency of bankruptcy stay it was a nullity, and appellate court lacked jurisdiction to consider appeal –Hewett v....more

What’s Mine, Is Yours - Adverse Possession Against the Co-Owner in West Virginia

The question of whose land and/or minerals is whose in West Virginia is as old as the Appalachian Mountains. When it comes to natural gas titles and possession, one must take heed. Adverse possession is a doctrine under...more

Bankruptcy Petition Costs Litigant Right to Appeal State Court

Learning the interplay between state rules of judicial procedure and federal bankruptcy law can be a daunting undertaking, but the pitfalls of failing to do so can be severe. A recent example of the importance of being...more

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