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Banking & Financial Services E -Note - March 2015

In This issue: - 6 Things You Need to Know Before Filing Chapter 11 Bankruptcy - Don’t Get Left in the Dark: Pre-eviction Noticing Requirements Following Sunset on the Protecting Tenants at Foreclosure...more

Bankruptcy Beat: The Automatic Stay Does Not Preclude A Foreclosure Committee From Seeking Fees From A Non-Debtor Party In A...

On January 5, 2015, the Honorable Albert S. Dabrowski issued a decision concerning the applicability of the automatic stay of Bankruptcy Code Section 362(a) (the “Automatic Stay”), which decision highlights and clarifies...more

Massachusetts Bankruptcy Court Holds that Homestead Protection is Available for Certain Home Offices

The United States Bankruptcy Court for the District of Massachusetts recently issued a decision in the case of In re Walter D. Catton, Jr. shedding light on the Massachusetts homestead statute and its application to home...more

Manufactured Home Lien: Forget Perfection, You Need To Have A Lien In The First Place

Morris v. Ark Valley Credit Union (In re Gracy), 522 B.R. 686 (Bankr. D. Kan. 2015) – A chapter 7 trustee sought to avoid a credit union’s security interest in a manufactured home by asserting his strong arm powers as a...more

Illinois Court Holds that Engineering Plat Did Not Improve Land, Rendering Mechanics Lien Invalid

The Illinois Appellate Court invalidated an engineering firm’s mechanics lien for platting of undeveloped land performed as due diligence before a sale, because the services provided by the firm did not increase or improve...more

Lost Mortgage Notes: Those Pesky State UCC Variations

Desmond v Raymond C. Green, Inc. (In re Harborhouse of Gloucester, LLC), 523 B.R. 749 (1st Cir. BAP 2014) – A Chapter 7 trustee objected to the proof of claim filed by a downstream assignee of a lost mortgage note. ...more

Nevada Supreme Court Addresses Private Sale Through Receivership

In U.S. Bank, N.A. v. Palmilla Development, Co., Inc., the Nevada Supreme Court recently confirmed that a receiver’s sale is a form of foreclosure sale that triggers a secured party’s right to a deficiency judgment. This...more

DOJ Reaches Settlement with National Bank Over Bankruptcy Practices

On March 3, the DOJ’s U.S. Trustee Program announced a $50 million settlement with a national bank to resolve allegations that the bank engaged in improper actions during bankruptcy proceedings. Under the terms of the...more

Orrick's Financial Industry Week in Review

FHFA Updates Requirements for Freddie and Fannie Sales of Non-Performing Loans - On March 2, FHFA announced changes to requirements for sales of non-performing loans (NPLs) by Freddie and Fannie to reduce the number of...more

Mortgage Notes: Those Nasty Assignments!

In re Baber, 523 B.R. 156 (Bankr. E.D. Ark. 2014) – The debtors objected to a proof of claim filed on behalf of a mortgagee based on issues arising from assignment of the mortgage note by the lender that originated the...more

Erasing The Invisible Line In The Sand: The Need To Amend Section 1307(C) Of The Bankruptcy Code To Establish A Statutory Basis Of...

Bad faith. These two words alone are troublesome to almost all attorneys, especially those who regularly practice in bankruptcy court. Yet there have always been Petitions for Relief filed for improper reasons. ...more

When "Shall" Means "Shall": Wisconsin Supreme Court Requires Mortgage Lenders to Sell Abandoned Properties in Foreclosure

Last week the Wisconsin Supreme Court issued its decision in Bank of New York v. Carson, 2015 WI 15. The case is significant for its potential lasting effects on mortgage foreclosures in Wisconsin. The Carson case involves...more

The Lien Stripping Saga Continues in Chapter 7 Bankruptcy Cases

In the latest chapter of “lien stripping,” the Honorable Judge Erik P. Kimball of the Southern District of Florida, Bankruptcy Court, recently grappled with the issue of whether a debtor can strip a completely unsecured...more

Bankruptcy Beat: Payments Made Directly From A DIP Account More Likely To Be “Unauthorized” Post-Petition Transfers

On December 19, 2014, The Honorable Julie A. Manning issued a Memorandum and Decision in the In re Louis Gherlone Excavating, Inc. case with respect to a Complaint filed by the Chapter 7 Trustee, Richard M. Coan (“the Trustee...more

Substantive Consolidation: When Abuse Goes Too Far An LLC Will Not Shield Assets

In re Carroll, 520 B.R. 491 (Bankr. M.D. La. 2014) – A chapter 7 trustee sought to substantively consolidate the bankruptcy estates of individual chapter 7 debtors with the separate bankruptcy estate of their wholly owned...more

Wisconsin Courts Can Force Lenders to Make Prompt Sales of Foreclosed Properties Which Have Been Abandoned by the Borrowers

In a case that “radically revises the law on mortgage foreclosure,” the Wisconsin Supreme Court recently held in Bank of New York Mellon v. Carson, 2015 WI 15, that Wisconsin circuit courts have the authority to order a sale...more

Land Contracts: Mortgage Priority and Other Complications

Liebzeit v. Intercity State Bank (In re Blanchard), 520 B.R. 740 (Bankr. E.D. Wis. 2014) – A Chapter 7 trustee sought to avoid a mortgage on the debtors’ property using the “strong arm” powers of a hypothetical bona...more

Recording Notice of Default as Trustee Before Being Formally Made the Trustee Does Not Make Foreclosure Sale Void

In Ram, et al. v. OneWest Bank, FSB, et al. (filed 2/6/15, No. A139055), the California Court of Appeal held that a nonjudicial foreclosure sale is not void merely because the notice of default was recorded by an entity who...more

ResCap Liquidating Trust Repurchase Lawsuit Survives Motion to Dismiss in Part:

On February 3, Judge Martin Glenn of the United States Bankruptcy Court of the Southern District of New York denied defendants’ motions to dismiss four adversary proceedings brought by the liquidating trust for Residential...more

Banking & Financial Service E-Note - January 2015

In this issue: - Denial of Plan Confirmation & Finality - Supreme Court's Resolution of Circuit Split May Apply to Chapter 11 - Third DCA Issues Opinion Defining When and How Acceleration Occurs and Addressing...more

Attorney Fees: Following Local Law Can Mean the Difference Between Collecting or Not

Southside, LLC v SunTrust Bank (In re Southside, LLC), 520 B.R. 914 (Bankr. N.D. Ga. 2014) – A debtor objected to attorney fees included in the proof of claim filed by a mortgagee, and the mortgagee moved for relief...more

Leases and Bankruptcy

WHEN THE TENANT FILES BANKRUPTCY I. Before the Bankruptcy is Filed. The Bankruptcy Code, found at 11 U.S.C. §§ 101, et seq., creates a category of rights known as “executory contracts.” An executory contract, in...more

Single Asset Real Estate Owners Have Options

The economic struggles of the past several years have put significant pressure on many aspects of the U.S. economy, none more so than the real estate market. For owners of single asset real estate in distress, the question...more

Real Estate Sales: Fixtures Can Be In the Eye of the Beholder (a/k/a Boilerplate Matters)

In re Trackwell, 520 B.R. 788 (Bankr. W.D. Mo. 2014) – The successful bidder at a bankruptcy auction of a ranch claimed that a cattle chute was included in the sold assets.  The debtors disagreed.  Resolution of the dispute...more

When automatic stay violations require fee awards

In America’s Servicing Co. v. Schwartz-Tallard, 2014 DJDAR 12063, the United States Court of Appeal for the Ninth Circuit decided an interesting case arising from allegations that a debt servicing entity violated the...more

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