Residential Real Estate Finance & Banking Civil Procedure

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When "Shall" Means "May": Wisconsin Court of Appeals Allows Mortgage Lenders to Slow the Foreclosure Sale Process

Last week we discussed the Wisconsin Supreme Court’s decision in Bank of New York v. Carson permitting circuit courts to force a mortgagee to hold a sheriff’s sale. Today we rewind the clock a bit to a decision last December...more

Morgan Stanley Reaches Agreement to End DOJ Investigation into MBS Deals

On February 25, 2015, Morgan Stanley announced that it reached an agreement in principle with the U.S. Department of Justice, Civil Division, and the U.S. Attorney’s Office for the Northern District of Califoirnia, Civil...more

Statutory Class Actions: Developments and Strategies

In this Newsletter: - An Aspect Of Adequacy: Do Traditional Standing Requirements Apply To Statutory Class Actions? - The Fair Debt Collection Practices Act: A Constantly Shifting Battlefield. - Telephone...more

UDAAP Council Weekly UDAAP Standards Report - 2/25/2015

Every week, courts around the United States issue decisions addressing aspects of civil UDAAP claims. In an effort to illuminate the UDAAP standards, below is a sampling of some of this week’s UDAAP decisions on the meaning...more

Authenticating Evidence In Support of Summary Judgment

Florida’s Fifth District Court of Appeal recently filed an opinion that emphasizes the importance of properly authenticating evidence in support of a motion for summary judgment. In Colon v. JP Morgan Chase Bank, N.A. et al.,...more

District Court Denies Motion to Dismiss in Ongoing CFPB Litigation

On February 12, 2015 the U.S. District Court for the Western District of Kentucky held that claims presented by the CFPB regarding a Kentucky-based law firm’s alleged violations of Section 8 of the Real Estate Settlement...more

Is the Attorney's Fees Clause Moot in an Illegal Contract? – Depends On Your Involvement, Explains First Appellate District Court

The Court of Appeal recently clarified when a party can recover attorney's fees under a real estate purchase contract that is ruled to be illegal. California courts have previously enforced attorney's fees provisions in a...more

Condominium Association Assessments in Mortgage Foreclosure Cases

Recently, in Montreaux at Deerwood Lake Condominium Ass’n, Inc. v. Citibank, N.A., _ So. 3d _, 2014 WL 7183213 (Fla. 1st DCA Dec. 18, 2014), Florida’s First District Court of Appeal followed the Third District in Central...more

Equitable Subrogation: Protecting Lien Position in a Foreclosure Action

The doctrine of subrogation enables a party discharging another’s debt to step into the shoes of the creditor who held the discharged debt. Subrogation plays a significant role in the mortgage context, as the concept acts as...more

Compliance with California Foreclosure Recording Law: What Level of "Defect" in Foreclosure Recordings "Void" a Foreclosure Sale?

In the wake of the California foreclosure crisis, one of several arguments relied on by borrowers facing foreclosure (and their attorneys) in “wrongful foreclosure” suits has been that some aspect of the statutory foreclosure...more

Locke Lord QuickStudy: Texas Supreme Court Authorizes Attorney Fees’ Awards in Home Equity Cases

On Friday, February 6, 2015, the Texas Supreme Court issued its decision in Case No. 13-0236, Wells Fargo Bank, N.A. v. Murphy, and held that the Texas Constitution’s prohibition against non-recourse home equity loans, see...more

Illinois Supreme Court Agrees to Decide Whether a Condo Foreclosure Extinguishes Association’s Lien

In the closing days of its January term, the Illinois Supreme Court agreed to decide an issue of considerable potential importance to the real estate bar – when does a foreclosure sale on a condominium unit extinguish the...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

When a Construction Lender Steps into the Shoes of the Developer, the Door is Open for Claims by the General Contractor

Thank you to my partner Garret Murai for giving me the opportunity to post again on his excellent California Construction Law Blog. I am the author/editor of the Money and Dirt Blog, where I focus on issues relating to...more

Court Declines to Vacate Jury Verdict in Countrywide FIRREA Lawsuit

On February 3, Judge Jed S. Rakoff of the United States District Court of the Southern District of New York denied Bank of America Corporation’s and Rebecca Mairone’s motion for judgment as a matter of law, or, in the...more

Foreclosure Sales in Florida’s Federal Courts

Although typically foreclosure actions are brought in state court, lenders may occasionally find themselves pursuing foreclosure in federal court. Although the costs and procedures for conducting the foreclosure sale are...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

Appellate Court Notes

SC19216 - Sikorsky Financial Credit Union, Inc. v. Butts - Finally some clarity in rules pertaining to the award of post-judgment interest. Here the (consumer) loan agreement provided that interest would accrue at 9%...more

Texas Supreme Court opinions (2/15)

In its weekly orders (2/6/15), the Texas Supreme Court issued four new opinions and granted no petitions for review. The new opinions are as follows: No. 12-0136, Wackenhut Corp. v. Gutierrez -- This case...more

Mortgage Foreclosure Ordinances Preempted by Existing State Law

The Massachusetts Supreme Judicial Court (the “SJC”) recently decided that two mortgage foreclosure ordinances adopted by the City of Springfield were preempted by existing state law. In Easthampton Savings Bank v. City of...more

Supreme Court’s Jesinoski Ruling Provides Clarity on TILA Rescission While Creating Many Questions

On January 13, 2015, the U.S. Supreme Court settled a circuit court split regarding how and when a mortgage borrower may exercise the right of rescission under the Truth-in-Lending-Act (“TILA”) and the CFPB’s implementing...more

Chancery Court Applies New Statutory Amendment Retroactively

Before the newly enacted statutory amendment, 10 Delaware Code Section 8106(c), parties could shorten, but were not permitted to lengthen, an applicable limitations period by contract because an extension of the statute of...more

Acceleration and Florida’s Five-Year Statute of Limitations

Florida’s Third District Court of Appeal recently filed an opinion that illuminates when a lender’s acceleration of debt triggers the five-year statute of limitations. In Snow v. Wells Fargo Bank, N.A., 2015 WL 160326 (Fla....more

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