Residential Real Estate Bankruptcy

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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

What Creditors Need to Know - Two Recent Bankruptcy Rulings Affect Rights and Risks Regarding the Automatic Stay

Immediately upon the commencement of a bankruptcy case an automatic stay prohibits actions against the debtor to, among other things, collect pre-petition obligations and to obtain control over property of the bankruptcy...more

What Happened to my Mortgage?

In 2015, and just before his retirement, Justice Murray of the Ontario Superior Court of Justice left us with a challenging legal decision that, for the time being at least, will matter to mortgage lenders....more

Lack of Reaffirmation Agreement Results in Finding That Bank Violated Discharge Injunction by Enforcing Post-Bankruptcy Loan...

In Venture Bank v. Lapides, 800 F.3d 442 (8th Cir. 2015), the Eighth Circuit found that a bank could not recover from its borrower and, in fact, had violated the post-discharge injunction by relying on change in terms...more

New Bankruptcy Forms Affect Residential Mortgage Lenders, Servicers

Sweeping changes to the federal bankruptcy forms went into effect on December 1, 2015. The changes pertaining to proofs of claim for residential mortgage loans are especially significant. The new forms are to be used in all...more

Bankruptcy Beat: Does The Automatic Stay Apply To Stay Acts Against An Individual Debtor’s Wholly-Owned Company?

A vexing issue for some creditors arises when an individual who is typically a guarantor or co-debtor of his wholly-owned company’s debt files bankruptcy under chapter 7, 11 or 13 and then takes the position that the...more

A Couple Of Points About Receiverships

There's a lot to wonder about receiverships. Like, how is the Receiver's compensation calculated? And does it make a difference to compensation if a corporate shareholder says the receivership was unnecessary, and that it...more

Bankruptcy & Creditors' Rights News: Updated Forms for U.S. Bankruptcy Court

As of December 1, 2015, many of the Official Forms for use in Bankruptcy Courts were updated. The changes were made as part of a forms modernization effort. Among the forms updated was the Official Proof of Claim Form...more

Bankruptcy Proof of Claim Form Gets a Makeover

Several of the Official Bankruptcy Forms will be replaced on December 1, 2015. For creditors, the most notable changes will be to two forms: the Proof of Claim form, Form 410, and the Mortgage Proof of Claim Attachment, Form...more

Bankruptcy Court Order Compelling Surrender of Property Upheld on Appeal

On November 23, 2015, in the first appellate decision of its kind, the District Court for the Southern District of Florida affirmed a bankruptcy court order to compel chapter 7 debtors to surrender real property by directing...more

Bank Settles with DOJ for $81.6 Million for Failing to Timely File Payment Change Notices for Homeowners in Bankruptcy

On November 5, the DOJ announced a proposed settlement with a bank for allegedly violating bankruptcy rules by not providing homeowners with required notices that would have allowed them to challenge the accuracy of increased...more

Sixth Circuit Files Win for Bankruptcy Debtors Harassed During Automatic Stay

Creditors of bankruptcy debtors beware: a recent opinion from the Sixth Circuit Court of Appeals makes clear that creditors cannot circumvent the ban on collection efforts following the petition for bankruptcy by trying to...more

New Case Poses Threat to Mortgage Servicers in Bankruptcies

A new decision from the U.S. Court of Appeals for the Ninth Circuit poses a serious threat to mortgage companies that service mortgages of chapter 13 debtors. Mortgage servicers should be aware of the case's implications and...more

Orrick's Financial Industry Week in Review

Barclays and Wachovia Settle with NCUA - On October 19, 2015, Barclays PLC and Wachovia Capital Markets LLC agreed to pay $325 million and $53 million, respectively, to settle claims brought by the National Credit Union...more

Mortgage Acknowledgements: Can A Boo-Boo Be Fixed?

Bank of America, N.A. v. Casey, 517 B.R. 1 (D. Mass. 2015) – A Chapter 7 trustee sought to avoid a mortgage using “strong-arm” powers based on a defect in the acknowledgement. The mortgagee contended that the defect was...more

Equitable Liens: No Mortgage Does Not Necessarily Mean No Lien

Marcum v. Marcum (In re Marcum), 508 B.R. 499 (Bankr. M.D. Fla. 2014) – A creditor made two prepetition loans to a chapter 13 debtor for payment of delinquent real estate taxes. The loans were supposed to be secured by...more

Joint Tenancy: What Happens When a Joint Tenant’s Interest Becomes Part of the Bankruptcy Estate?

Peet v. Checkett (In re Peet), 529 B.R. 718 (8th Cir. BAP 2015) – A chapter 7 trustee proposed to sell real and personal property that was owned by the chapter 7 debtors as joint tenants with parents of one of the...more

Constitutional Clarification for Nevada HOA Super-Priority Foreclosures

Since the Nevada Supreme Court’s infamous decision in SFR Investments Pool 1, LLC v. U.S. Bank, N.A. in September 2014, the mortgage community has continued to fight to save senior deeds of trust from extinguishment due to an...more

Appellate Court Notes

Appellate Court Advance Release Opinions: AC36390 - Folsom v. Zoning Board of Appeals - Trial court properly granted a motion to strike a direct lawsuit by a disgruntled neighbor against the Town Zoning Enforcement...more

Tough News for Lenders - Major NC Supreme Court Decision on Collection of Post-Foreclosure Deficiencies

Fall is football time. And as every football fan knows, not every player on the line of scrimmage is an eligible receiver. Imagine how dramatically it would change the game if the entire offensive line were eligible to catch...more

Property Surrender: Surrender Means Surrender – Really

In re Failla, 529 B.R. 786 (Bankr. S.D. Fla. 2014) – Individual chapter 7 debtors filed a statement of intention electing to surrender their real estate. The mortgagee contended that they had failed to do so and filed a...more

Bankruptcy Basics – “Will I Lose My House in a Chapter 7 Bankruptcy?”

Almost daily I meet with families that have avoided filing for bankruptcy because they fear they will lose their home as part of the process. In this article I will discuss how you can know if your house will be put at risk...more

Strong Arm Powers: Does Sovereign Immunity Trump a Claim Based on State Law?

Kohut v. Wayne County Treasurer (In re Lewiston), 528 B.R. 387 (Bankr. E.D. Mich. 2015) – The debtor made property tax payments on behalf of several real estate projects.  The chapter 7 trustee sought to recover those...more

Settlement Proceeds: When Does Cash Become Quasi Real Estate?

Farmer v. Citizens Nat’l Bank of Athens (In re Davis), 528 B.R. 757 (Bankr. E.D. Tenn. 2015) – A chapter 7 trustee sought a court determination that the trustee had a superior claim to settlement proceeds arising from...more

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