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Unauthorized Transfers of Receivership Property: Void, Voidable or Ok?

Question: Unauthorized Transfers of Receivership Property: Void, Voidable or Ok? Answer: In a recent unpublished bankruptcy appellate panel decision (In Re Domum Locis, LLC, 2015 WL 4697747 (9th Cir. BAP 2015)), the BAP...more

Debtors’ Lien-Stripping Attempt Likely Would Have Succeeded in New Hampshire

A North Carolina bankruptcy court recently denied a Debtors’ attempt to “strip off” a junior lien on their primary residence by rejecting the argument that the property should be valued near the time of plan confirmation. In...more

Texas Home Equity Loan Litigation Update: Eastern District of Texas Reaffirms that Quiet-Title and Breach-of-Contract Claims...

On May 20, 2016, the Texas Supreme Court issued two opinions dealing with the home-equity lending provisions in article XVI, section 50 of the Texas Constitution. In Wood v. HSBC Bank USA, N.A., ___ S.W.3d ___, 2016 WL...more

Ex Parte Attachment, and Priority, Reinstated to First in Time Creditor

In Estate of Summers v. Nisbet, the Maine Supreme Judicial Court reinforced the first in time, first in right nature of attachment and trustee process under Maine law. Attachment and trustee process are powerful enforcement...more

Debtor May Still Claim Homestead Exemption Even If He Was Kicked Out

The bankruptcy court for the Eastern District of New York found that a debtor who was ordered to vacate his home could still claim an exemption in the property. In a divorce proceeding several months prior to the bankruptcy...more

Orrick's Financial Industry Week in Review

SEC Approves IEX Proposal to Launch National Exchange, Issues Interpretation on Automated Securities Prices - On June 17, 2016, the Securities and Exchange Commission ("SEC") approved the application of Investors'...more

Consumer Financial Services Newsletter - June 2016

Seventh Circuit Held No Implicit Threat to Proceed to Trial by Debt Collector When Filing a Collection Lawsuit - St. John v. CACH, LLC, No.14-2760, 2016 WL 2909195 (7th Cir. May 19, 2016) - On May 19, 2016, the...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

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

Mortgage Lenders Entitled to the Benefit of Their Bargain: Fourth Circuit Applies Default Interest Rate to Mortgage Payments Made...

Good news for residential mortgage lenders: the Fourth Circuit recently held that post-petition mortgage payments under a Chapter 13 “maintenance and cure” bankruptcy plan should be calculated using the default interest rate...more

Take Notice of This Change: Supreme Court Adopts Recommended Amendments to Bankruptcy Notice of Payment Change Rule

Come December, the requirements surrounding notices of payment change (“PCNs”) for certain mortgage loans in bankruptcy will change. The Supreme Court, on April 28, 2016, adopted various proposed amendments to the Federal...more

When and How Can a Chapter 7 Bankruptcy Trustee Liquidate Your Collateral?

So you are chugging along with a foreclosure action (either on real and/or personal property) only to be stopped in your tracks by the borrower filing a voluntary Chapter 7 bankruptcy petition. The usual, immediate thought...more

Orrick's Financial Industry Week in Review

FHFA Increases 2016 Multifamily Lending Caps - On May 4, 2016, the Federal Housing Finance Agency announced that it increased its 2016 multifamily lending caps for Fannie Mae and Freddie Mac from $31 billion to $35...more

Fourth Circuit Case on Modification of Residential Mortgage

The Fourth Circuit has held that in a case where the rate of interest on a residential mortgage loan had been increased upon default, a Chapter 13 Plan proposing to “cure” default under 11 U.S.C. §1322(b) is an impermissible...more

When is a Wrongful Foreclosure Case a “SLAPP”?

California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) arms a defendant with an early method to challenge a lawsuit known as a “SLAPP” — a Strategic Lawsuit Against Public Participation. SLAPPs are...more

The District of Massachusetts Calls for Review of Practice of “Surrendering” Underwater Property

For secured lenders, a consumer debtor’s chapter 13 bankruptcy filing can be a mixed bag. A chapter 13 bankruptcy petition often is utilized by a consumer debtor to avoid a foreclosure by allowing a debtor time (usually...more

Banking & Financial Services E-Note - March 2016

Within Burr & Forman's footprint, Florida, Mississippi, and Tennessee have passed statutes exempting Health Savings Account ("HSA") contributions from a debtor's bankruptcy estate. To date, the state of Georgia has not passed...more

Financial Services Weekly News - March 2016 #4

Regulatory Developments - FHA Revises Loan-Level Certification Form - On March 15, the Federal Housing Administration (FHA) announced changes to its loan-level certification form. The changes resulted from concerns...more

Tax Treatment of “Bad Boy Guarantees” Challenged by Recent IRS Memorandum

I. OVERVIEW - A recently released legal memorandum by the Internal Revenue Service (IRS) Office of Chief Counsel, CCA 201606027 (the “Memorandum”), concluded that a so-called “bad boy guarantee” provided by a sponsor of...more

Equitable Subrogation and the Replacement Doctrine

All real estate professionals and investors are familiar with the concept of the priority of liens. As a general rule, when there are multiple liens recorded against a property, the one that is recorded first is “superior”...more

R&I Update: Hot Topics in Oil and Gas Restructurings, Volume 2 Can Gathering Agreements Be Rejected as Executory Contracts?

“The carnage is going to be terrible,” cried a recent Dallas Morning News headline. “It’s a hellacious problem,” lamented another article. It’s no secret the energy sector has come upon hard times. Oil prices are down 70...more

Bankruptcy Court Rules Gathering Agreements Can Be Rejected - Potential Significant Impacts on Midstream Companies

On March 8, 2016, the United States Bankruptcy Court for the Southern District of New York (the “Court”) ruled from the bench in In re Sabine Oil & Gas Corp. in a case of first impression that a midstream gathering agreement...more

The Lesson of In Re: Nealon – Homestead Is a Protection Worth Maximizing

Every Massachusetts homeowner should be aware of the opportunities that are available for protecting the equity in the family home. A recent bankruptcy case, In re: Nealon, reminds us of one such opportunity – the...more

Jesinoski Update: TILA Rescission in a Post-Jesinoski World

A little over one year ago, the U.S. Supreme Court issued its ruling in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015), which resolved a circuit court spit regarding how a mortgage borrower may exercise the...more

Banking & Financial Services E-Note - January 2016

In Deutsche Bank Nat’l Trust Co. v. Estrella Perez, et al., No. 3D15-58, 2015 WL 8347002 (Fla. 3d DCA Dec. 9, 2015), Florida’s Third District Court of Appeal held that the trial court erred in dismissing a foreclosure case on...more

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