Residential Real Estate › Finance & Banking › Civil Procedure

Trustee Empowered To Void Foreclosure Sale Where Error Discovered Before Delivery Of Trustee’s Deed

California’s Supreme Court affirmed a trustee’s right to void a non-judicial foreclosure sale based on mistakes in the foreclosure process discovered before delivery of a trustee’s deed to the successful bidder. ...more

Ohio Supreme Court Holds Mortgage Servicing Not Subject To Consumer Sales Practices Act

On May 14, the Ohio Supreme Court held in response to two certified questions from a federal district court that the Ohio Consumer Sales Practices Act (CSPA) generally does not apply to mortgage servicers and servicing....more

Solicitor General files brief opposing certiorari in Mt. Holly

Last week, the Solicitor General finally filed his brief expressing the views of the United States on whether the U.S. Supreme Court should grant the petition for certiorari pending in Township of Mount Holly v. Mt. Holly...more

Rogers Towers: Municipal Liens vs. Mortgages: Florida’s Supreme Court Rules on Superpriority Issue

In my April 18th post, I discussed the recent trend of municipalities enacting ordinances designed to give their code enforcement liens “superpriority” over prior-recorded mortgages. Basically, the municipalities have sought...more

New York Appeals Court Overturns Sanction Requiring Bank To Accept Terms Of Trial Loan Modification

On May 1, the Supreme Court of the State of New York, Appellate Division, overturned a lower court’s order requiring a lender to modify a borrower’s loan agreement under the terms employed in the trial period as the penalty...more

Orrick's Financial Industry Week In Review - May 20, 2013

In This Issue: April Housing Scorecard; Rating Agency Developments; New York State Court Dismisses RMBS Putback Action Against Nomura As Time-Barred; New York State Court Allows Trustee Lawsuit Against DB Structured Products...more

Magistrates to Handle Florida Residential Foreclosure Actions – Florida Supreme Court Amends Rule 1.490 and Significantly Changes...

It is no secret that Florida consistently ranks among the worst states in the union in regards to the mire of the residential mortgage foreclosure case backlog. From 2007 to 2013, approximately 1.5 million foreclosure cases...more

Indiana Eliminates Provisions Binding Interested Parties Not Named In Foreclosure Actions

On May 7, Indiana enacted SB 279 to (i) eliminate a provision in current law that binds certain omitted parties...more

Amendment to Rule 1.490 re Use of Magistrates in Residential Foreclosures

The Florida Supreme Court has amended Florida Rule of Civil Procedure 1.490, effective immediately, to streamline the use magistrates in residential mortgage foreclosures....more

Federal Court Dismisses United States Action Against Countrywide In Part

On May 8, Judge Jed Rakoff of the United States District Court for the Southern District of New York dismissed claims by the United States for damages and civil penalties under the False Claims Act against Countrywide and...more

Former Owner Cannot Challenge Foreclosure Procedure In Forcible Detainer Action

In McDaniel v. HSBC Bank USA, NA, McDaniel appealed a trial court's granting a bank possession of real property purchased at a foreclosure sale. No. 05-11-00238-CV, 2013 Tex. App. LEXIS 1079 (Tex. App.—Dallas February 6,...more

Court Upheld A Waiver Of Property Code Rights And Affirmed A Deficiency Judgment Based On The Foreclosure Price

In New Millennium Homes, Inc. v. Texas Community Bank, NA, a debtor appealed a summary judgment granted to a lender based on a deficiency claim. No. 09-12-00073-CV, 2013 Tex. App. LEXIS 1598 (Tex. App.—Beaumont February 21,...more

Federal District Court Denies Certification In Loan Modification Class Action

On April 29, the U.S. District Court for the Central District of California refused to certify a class seeking to challenge a mortgage servicer’s loan modification practices. Campusano v. BAC Home Loans Servicing, LP, No....more

Court Holds That Statute Of Limitations Applies To Section 50(a)(6) Constitutional Claims

In Priester v. JPMorgan Chase Bank, N.A., homeowners sued for declaratory relief against their lender claiming that the lien on their home was void under the Texas Constitution. No. 12-40032, 2013 U.S. App. LEXIS 3097 (5th...more

Government Drops One Claim In Mortgage False Claims Act Case

On April 29, the U.S. Attorney for the Southern District of New York dropped its reverse false claims count in a pending False Claims Act case against a mortgage lender. U.S. v. Wells Fargo Bank, N.A., No. 12-7527....more

Tenth Circuit Holds Affidavit Sufficient To Avoid Summary Judgment On FCRA Emotional Damage Claim

Recently, the U.S. Court of Appeals for the Tenth Circuit affirmed in part and reversed in part a district court’s award of summary judgment to a mortgage servicer who provided a negative credit report after the borrower...more

Successor Banks of FDIC assets Not so Jolly after Jolley - A New Duty to Investigate?

A recent California case appears to contradict the general rule holding that a successor bank that has acquired a commercial loan through an FDIC receivership may owe a duty to a commercial borrower to reasonably investigate...more

Orrick's Financial Industry Week in Review - May 6, 2013

On April 30, the FHFA issued its progress report on the steps being taken to establish a common securitization infrastructure for MBS. The FHFA is encouraging interested parties to provide written input on the progress...more

Mortgage Banking Update: 10th Circuit: Law Firm Not Required To Flag Erroneous Credit Reports in Foreclosure Proceeding

A law firm hired to foreclose on a property was not required under the Fair Debt Collection Practices Act (FDCPA) to inform a credit reporting agency of erroneously negative credit reports on the borrower, even if the firm...more

Sales Of Condominium Units Under Audit By Canada Revenue Agency

A Canada Revenue Agency (“CRA”) audit initiative is targeting taxpayers who have recently sold condominium units they did not occupy or occupied for only a short period of time (the “CRA Condo Project”)....more

KEVIN SINGH v BANK OF AMERICA

MEMORANDUM AND ORDER GRANTING Plaintiff’s Application for a Preliminary Injunction under California's Homeowners Bill of Rights...

California Homeowner Bill of Rights (HBOR) Blocks Bank of America's Foreclosure A California man successfully halted a foreclosure sale on his property using the newly minted California Homeowner Bill of Rights to obtain a...more

CONGRESSIONAL BUDGET OFFICE (CBO) RE Options for Principal Forgiveness

Modifying Mortgages Involving Fannie Mae and Freddie Mac: Options for Principal Forgiveness

The Congressional Budget Office is accepted as a non-partisan agency which has torpedoed both Democratic and Republican proposals on the economy. Upon request from Congress, the CBO studied the mortgage and foreclosure market...more

Minnesota Supreme Court Affirms That Foreclosing Parties Must Record Mortgage Assignments Prior To Initiating Foreclosure By...

On April 17, the Minnesota Supreme Court affirmed an intermediate appellate court ruling that held (i) a strict compliance standard applies to Minnesota’s foreclosure by advertisement process, and (ii) a foreclosure by...more

Failure to Comply with Minnesota's Statutory Requirements in Foreclosure by Advertisement Costs Lender

Lenders foreclosing by advertisement in Minnesota must comply with many technical requirements. One requirement is "that the mortgage has been recorded and, if it has been assigned, that all assignments thereof have been...more

Illinois Supreme Court Issues New Rules Affecting Mortgage Foreclosures

The Illinois Supreme Court has issued new court rules that become effective on May 1, 2013, modifying the evidentiary requirements for obtaining foreclosure judgments, among other things. The rules are the result of the work...more