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Spotlight on Bankruptcy: Basic Bankruptcy for Mortgage Litigators

Mortgage litigators often face a variety of bankruptcy issues. There are three main chapters of bankruptcy that affect the average mortgage litigator: Chapter 7, Chapter 13 and Chapter 11. Upon the filing of Chapter 7,...more

Real Property, Financial Services, & Title Insurance Update

Foreclosure: reservation of jurisdiction in final judgment to determine amount of attorneys’ fees renders that portion of judgment non-final and non-appealable – BAC Home Loans Servicing LP v. Ridgway, No. 1D13-3853 (Fla. 1st...more

Section 75-1.1 and Mortgage Servicing: Lessons From a Federal Bankruptcy Court in New York

Claims under N.C. Gen. Stat. § 75-1.1 can turn up in unexpected places—including a bankruptcy court in Manhattan. Recently, a section 75-1.1 claim made its way from Hyde County, North Carolina, to the Big Apple, courtesy of...more

Eleventh Circuit Doubles Down on Lien Stripping

When the Fourth Circuit handed down its opinion in the case of In re Davis, which permitted lien stripping in “Chapter 20” proceedings, the stage was set for the Eleventh Circuit to expand debtor’s ability to escape from...more

Hold That ReFi! A Reason to Think Twice Before Entering Post-Petition Agreements with Discharged Debtors

After months of phone calls, loan modifications and discussions with borrowers, one finally receives the dreaded bankruptcy notice in the mail. A chapter 7, no-asset case, with the loan listed on the bankruptcy schedules as a...more

Navigating Foreclosure in States with 'One Action Rules'

Late last year, the New York Supreme Court decided 172 Madison (NY) LLC v. NMP Grp., LLC, in which it examined New York’s one-action rule, a complex and often misunderstood rule that can have huge implications for lenders...more

The Consumer Financial Protection Bureau (CFPB): The New Federal Landscape For Lenders and Servicers

Following the recession and financial crisis of the late 2000s, the “Bureau of Consumer Financial Protection”—commonly known as the Consumer Financial Protection Bureau (CFPB)—was created. Aimed at promoting “fairness and...more

Supreme Court Denies Certiorari To Hear Bank Of America’s Challenge To Eleventh Circuit’s Rule Regarding Lien Stripping In Chapter...

The United States Supreme Court recently denied certiorari to an Eleventh Circuit appeal which would have addressed the issue of whether section 506(d) of the Bankruptcy Code permits a chapter 7 debt to “strip off” a wholly...more

Orrick's Financial Industry Week in Review

FCA Updates AIFMD Web Page - The Financial Conduct Authority (FCA) has updated its "latest news" Web page on the Alternative Investment Fund Managers Directive (AIFMD) with additional information relating to...more

Florida Law on Assignment of Rents Provisions

A recent bankruptcy decision from a New Jersey Bankruptcy Court (In re Surma, 504 B.R. 770 (Bankr. D.N.J. 2014)) has once again drawn attention to the effect assignment of rents provisions in mortgages can have, depending on...more

SCOTUS Denies Certiorari In Lien Stripping Case

On March 31, the U.S. Supreme Court denied a petition for a writ of certiorari in an Eleventh Circuit case that raises the issue of whether, under section 506(d) of the Bankruptcy Code, a chapter 7 debtor can “strip off” a...more

Deviation From Statutory Scheme In Sale Of Receivership Property

The sale of real and personal property in a receivership estate is governed by 28 U.S.C. §§ 2001 and 2004, and both contain procedures for both a public and private auction of property. Regarding personal property, § 2004...more

And the Bidding Starts At . . .? The Impact of Two Recent Bankruptcy Decisions On Determining Foreclosure Sale Bids

In today’s economy, banks all too commonly find themselves foreclosing on real property collateral. As a result, banks are regularly in the position of having to determine the starting bid in foreclosure proceedings. This...more

Playing Zone(-ing) Defense

ZONE(-ING) DEFENSE --- With March Madness in full swing, now is a great time to review how local zoning ordinances can turn a mortgage servicer’s foreclosure layup into a blocked shot. Many U.S. states rely on a judicial...more

West Virginia Bankruptcy Courts Split on When Foreclosure Sale is Final

Lenders that exercise their rights to foreclose upon collateral are often met with a bankruptcy filing near or shortly after the date of sale. Obviously, if a lender learns of a bankruptcy prior to the foreclosure, the sale...more

Recent Deed of Trust Act Cases Pose New Challenges

In 2013, Washington courts issued several decisions impacting the way banks, loan servicing companies, foreclosure trustees and other industry participants must approach claims arising out of nonjudicial foreclosure...more

Orrick's Financial Industry Week in Review - February 24, 2014

ESMA Q&A on Application of AIFMD - On February 17, the European Securities and Markets Authority (ESMA) published a questions and answers paper (Q&A) on the application of the Alternative Investment Fund Managers...more

Enforcing “Bad Boy” Guaranties When The Borrower Files For Bankruptcy Protection

Have you ever gone through an entire foreclosure action only to have the borrower, usually a special purpose entity, file for bankruptcy protection on the eve of sale? If you have - and what lender hasn’t? - you know how...more

Connecticut District Court and Bankruptcy Court Differ on Extent to Which the Automatic Stay Automatically Terminates Upon Second...

Under §362(c)(3)(A), when a debtor files a second bankruptcy case within one year after the first case, the automatic stay in the second case will automatically terminate “with respect to the debtor” on the 30th day of the...more

Fannie Mae Issues Numerous Servicing Guide Announcements

Over the past week, Fannie Mae has announced numerous servicing policy changes through a series of Servicing Guide Announcements. In SVC-2013-25, Fannie Mae updated allowable bankruptcy attorney and foreclosure attorney fees,...more

Freddie Mac Updates Short Sale, Deed-In-Lieu Of Foreclosure Requirements

On November 25, Freddie Mac issued Bulletin 2013-24, which revises numerous short sale and deed-in-lieu of foreclosure (DIL) requirements. The bulletin updates, among other things, eligibility requirements for exceptions to...more

Mortgage Debt Lesson: Don't Pursue Collection Of A Discharged Mortgage

Creditors should double check the bankruptcy status of a debtor/borrower before pursuing collection. As a pending case illustrates, pursuing collection of an initially reaffirmed, but later discharged mortgage could be a...more

HUD Updates Foreclosure Procedures, Pre-Foreclosure Borrower Communication Policies

On October 28, HUD issued two mortgagee letters related to the servicing of certain FHA-insured loans. Mortgagee Letter 2013-38 provides a list of the first legal actions necessary to initiate a foreclosure and the reasonable...more

CFPB Refines Mortgage Rules to Resolve Conflicts and Inconsistencies

On October 15, 2013, the Consumer Financial Protection Bureau (CFPB) issued an interim final rule and bulletin refining and making technical changes to certain provisions of its January 2013 mortgage rules. The interim rule...more

Real Estate Tip: Price Protection for the Stalking Horse Bidder

Real estate buyers may hesitate when a seller is in bankruptcy; extra care is often required. One of many possible bankruptcy-related transaction structures arise when a buyer strikes a deal directly with the bankrupt owner...more

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