Residential Real Estate Finance & Banking Civil Procedure

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Ninth Circuit Holds Plaintiffs Not Required To Plead Tender Or Ability To Tender To Support TILA Rescission Claim

On July 16, the U.S. Court of Appeals for the Ninth Circuit held that an allegation of tender or ability to tender is not required to support a TILA rescission claim. Merritt v. Countrywide Fin. Corp., No. 17678, 2014 WL...more

Protection from Sexual-Orientation Discrimination in Pennsylvania

In Whitewood v. Wolf, a federal judge struck down a Pennsylvania law that limited the definition of marriage to that between “one man and one woman.” In his momentous opinion, Judge Jones also declared that classifications...more

Standing To Foreclose– Revisited

There have been several articles posted on this blog on the subject of standing – the legal right to enforce a promissory note and/or mortgage. This continues to be a popular issue for defense counsel to raise and, as a...more

C.D. Cal. Dismisses False Claims Act Qui Tam Suit Against Group of Lenders

On July 15, the U.S. District Court for the Central District of California dismissed a relator real estate agent’s suit against a group of lenders the relator alleged submitted claims for FHA insurance benefits to HUD based...more

Defendants Granted Limitations-Based Summary Judgment In Captive Reinsurance Class Action

A putative class of mortgage consumers sued Flagstar Bank and its captive reinsurer alleging that they engaged in an illegal “kickback” scheme with private mortgage insurers, which scheme artificially inflated the price of...more

Preserving The Right To Foreclose After Accepting A Deed In Lieu

When a lender seeks to foreclose under a deed of trust, often a borrower who does not have the resources or incentive to resist the foreclosure will offer the lender a deed in lieu of foreclosure. This can be an attractive...more

Ninth Circuit addresses TILA tender requirement and RESPA statute of limitations

Under the Truth in Lending Act (TILA), a borrower may seek to rescind a loan under certain circumstances. The rescission process under TILA is as follows: the borrower notifies his lender that he intends to rescind the loan;...more

Fourth Circuit Affirms Dismissal Of Class Action Alleging Illegal Mortgage Referrals

On July 10, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s holding that the fees charged by a mortgage company jointly owned by a national bank and a real estate firm did not violate Maryland’s...more

Better Keep Your Opinions to Yourselves for Now: Second Circuit Doubles Down in Deutsche Bank Ruling in Advance of Supreme Court...

On July 16, 2014, a three-judge Second Circuit panel affirmed the dismissal of a securities class action against Deutsche Bank AG and several underwriters. The case was brought on behalf of investors who purchased...more

Statute of Limitations Issues in Foreclosure Actions

An important issue that arises for lenders when pursuing foreclosure actions is determining when the statute of limitations begins to run. Florida Statutes provide that a party has five years to foreclose a mortgage, but...more

Real Property, Financial Services & Title Insurance Update

Easements: trial court erred in denying statutory easement or “way of necessity” where owners established all elements pursuant to section 704.01(2), Fla. Stat. – Messer v. Sanders, No. 1D13-3084 (Fla. 1st DCA July 9, 2014)...more

California Foreclosure Law: A Defaulting Borrower Cannot Enjoin A Foreclosure Sale By Asserting That The Lender Lacks Standing

Under California’s non-judicial foreclosure statutes, a defaulting borrower cannot enjoin a lender’s initiation of foreclosure proceedings by asserting that the lender lacks standing. (Keshtgar v. U.S. Bank, N.A. (2014) 192...more

Orrick's Financial Industry Week in Review

ESMA Launches Consultations on New Market Abuse Regime Under MAR - ESMA has published two consultation papers on the draft technical standards and the draft technical advice it is developing for the implementation of a...more

Sixth Circuit Holds That Market Crash Cannot Be Considered in Determining ACV

In Whitehouse Condo. Group, LLC v. Cincinnati Ins. Co., 2014 U.S. App. LEXIS 11708 (6th Cir. June 17, 2014), the insured condominium building located in Flint, Michigan was destroyed by a fire. The parties disagreed over the...more

Florida Federal District Court Dismisses Miami’s Fair Housing Act Cases

On July 10, the U.S. District Court for the Southern District of Florida dismissed with prejudice the Fair Housing Act claims in three suits filed by the City of Miami against mortgage lenders. City of Miami v. Bank of Am.,...more

Guarantors Score Two Victories Before the Nevada Supreme Court

On May 29, 2013, the Nevada Supreme Court issued two decisions that all real estate lenders need to be aware of because they have the potential to eliminate the ability of a lender to recover a deficiency judgment from a...more

Georgia Court of Appeals Expands Lenders' Ability to Pursue Guarantor Deficiency Judgment Suits Beyond Foreclosure Confirmations

The Court of Appeals of Georgia further clarified Georgia's treatment of deficiency judgment suits against guarantors in instances where lenders cannot obtain foreclosure confirmations of secured property. Community &...more

Big Win for our Florida team in U.S. Bank N.A. v. Bartram

In U.S. Bank N.A. v. Bartram, ____ So.3d ____, 2014 WL 1632138 (Fla. 5th DCA April 25, 2014), the Fifth District Court of Appeals for the State of Florida reversed a decision from the Circuit Court of St. Johns County...more

NC Supreme Court Reminds Court of Appeals That Typical Lender-Borrower Relationship is Not a Fiduciary One

The North Carolina Supreme Court recently reaffirmed that a run-of-the-mill lender and borrower are not fiduciaries, reversing the Court of Appeals decision that would have this issue to go to the jury. The case is Dallaire...more

Pennsylvania Mechanics' Lien Law Amended, Clarifying Open-End Construction Loan Mortgage Priority

On July 9, 2014, Pennsylvania Governor Tom Corbett signed into law Act 117 of 2014, which amends the Pennsylvania Mechanics' Lien Law (MLL), 49 P.S. 1101, et seq., to provide that a construction loan secured by an open-end...more

Under Well Established California Law, Judgment In Favor Of Borrower In A Lawsuit Brought To Foreclose A Mechanic's Lien After...

The issue before the Second District Court of Appeal ("Appellate Court") in this published opinion was whether a senior trust deed holder loses its priority lien position after accepting a deed in lieu of foreclosure from its...more

The Doctrine of Equitable Assignment is Alive and Well in Wisconsin

That was the holding of the Wisconsin Supreme Court in an opinion issued on Thursday in Dow Family, LLC v. PHH Mortgage Corporation, 2014 WI 56. The facts of the case are similar to thousands of foreclosure cases prosecuted...more

Six Months in Review: Florida Case Law

Florida has witnessed developments in three areas of mortgage foreclosure litigation already this year. The opinions offered by various courts of appeal have come at a time when litigants crave guidance more than ever, but...more

When the Minimum is Not Enough: Eleventh Circuit Rules that Lenders May Require Borrowers to Obtain More than the Minimum Flood...

The United States Court of Appeals for the Eleventh Circuit recently resolved a district court split regarding minimum flood insurance coverage by holding that a lender may require a borrower who has a federally-insured...more

Orrick's Financial Industry Week in Review

New York's Highest Court Will Review First Department Decision on RMBS Putback Statute of Limitations - On June 27, the Court of Appeals for the State of New York agreed to review the First Department's December 2013...more

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