Residential Real Estate Finance & Banking Civil Procedure

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Banking & Financial Services E-Note - November 2016

Employers across the country can now exhale. On Tuesday, November 22, 2016, a Texas federal court entered a nationwide injunction blocking the U.S. Department of Labor’s (“DOL”) new federal overtime rules from taking effect...more

CFPB Seeks Rehearing of D.C. Circuit Panel Ruling in PHH: What Now?

The Consumer Financial Protection Bureau (Bureau) Friday filed a petition in the closely-watched PHH case, seeking to undo a ruling by a panel of judges for the D.C. Circuit Court that was highly critical of the Bureau’s...more

CFPB Structure Hangs In the Balance as Agency Petitions D.C. Circuit for Rehearing

The Consumer Financial Protection Bureau (CFPB) filed on Nov. 18, 2016, a petition challenging the U.S. Court of Appeals for the District of Columbia Circuit's ruling in PHH Corp., et al. v. Cons. Fin. Prot. Bureau, in which...more

West Coast Real Estate Update: November 2016 #2

California Appellate Court Overturns “Sham Guaranty” Defense - The single-purpose entity (SPE) has become a ubiquitous tool in commercial real estate acquisitions and financing in California. Lenders increasingly require...more

Eleventh Circuit Holds that a Debtor who Elects to “Surrender” Real Property Cannot Oppose the Lender’s Foreclosure Case

In In re Failla, 838 F.3d 1170 (11th Cir. Oct. 4, 2016), the Eleventh Circuit resolved a split among Florida bankruptcy judges by ruling that a debtor who elects to "surrender" real property during its bankruptcy case cannot...more

Servicers Beware: Courts Rule Non-Parties Cannot Invoke Jury Trial Waiver

In Florida, courts routinely enforce jury trial waiver provisions found in loan agreements, which are generally valid and enforceable. This is true even with respect to fair debt actions. However, because there is generally a...more

Bourne Valley Redux

The dispute between lenders and the purchasers at homeowners’ association foreclosure sale regarding superiority of title has embroiled the State of Nevada since at least as early as 2012. Since the issue rose in volume and...more

No “Free House” in Florida

Last week, after much anticipation and speculation, the Florida Supreme Court decided Bartram v. U.S. Bank National Association, No. SC14-1265 (Fla. Nov. 3, 2016). To the relief of lenders, the Court rejected the borrower’s...more

Florida Supreme Court Finds That the Statute of Limitations Does Not Prevent a Subsequent Foreclosure Action Based on Payment...

Action Item: If a prior foreclosure action has been dismissed with prejudice, mortgagees may bring new actions to foreclose on mortgages based upon post-dismissal payment default, so long as the new action is brought within...more

No Free Houses—Florida Supreme Court Approves Fifth DCA’s Bartram Decision and Extension of Singleton v. Greymar

The mortgage industry scored a significant victory last week when the Florida Supreme Court released its decision in Bartram v. U.S. Bank, N.A. broadly approving of the approach taken by the Fifth District Court of Appeal and...more

UPDATE: Ninth Circuit Denies Rehearing of Bourne Valley Decision Holding Nevada HOA Super-Priority Lien Statute Unconstitutional

The Ninth Circuit denied the plaintiff’s request to rehear Bourne Valley Court Trust v. Wells Fargo Bank, N.A., in which the Ninth Circuit found NRS 116 to be unconstitutional on its face because the statute violates a first...more

Client Alert: Florida Supreme Court Rules that Dismissal of Foreclosure Action Returns Parties to their Pre-Foreclosure Action...

The Florida Supreme Court issued its long awaited decision in Bartram et al. v. U.S. Bank NA, case number SC14-1265, on November 3, 2016, affirming the decision of the Fifth District Court of Appeals in U.S. Bank Nat. Ass’n...more

Florida’s Highest Court Says Each Default Resets Statute of Limitations for Foreclosure Actions

Bartram v. U.S. Bank National Association, et al., --- So. 2d. ---- (Fla. Nov. 3, 2016) - In Bartram, the Supreme Court of Florida held that acceleration of payments due under a residential note and mortgage in a...more

Florida Supreme Court Issues Landmark ruling on Statute of Limitations for Foreclosure: Bartram Affirmed.

The Florida Supreme Court today affirmed Bartram v. U.S. Bank National Association in a virtually unanimous decision. The decision resolves a long standing controversy regarding the effect (if any) of a prior unsuccessful...more

Tennessee District Court Orders Discovery Of Reinsurance Agreements, But Denies Discovery Of Reinsurance-Related Communications,...

Plaintiffs sought coverage from the insurer Defendants for a $212.5 million dollar settlement of a claim of violation of the False Claims Act relating to errors and omissions in underwriting and origination of HUD mortgage...more

Eleventh Circuit Affirms That a Debtor’s Surrender in Bankruptcy Means Just That-You Must Surrender

Burr & Forman lawyers won a significant victory in the Eleventh Circuit earlier this month. In the case In re: David A. Failla, — F.3d — (2016), the U.S. Court of Appeals for the Eleventh Circuit affirmed that a person who...more

The Ninth Circuit Holds That Enforcing A Security Interest Is Not Necessarily Debt Collection

On Oct. 19, 2016, the Ninth Circuit held that merely enforcing a security interest is not “debt collection” under the federal Fair Debt Collection Practices Act (“FDCPA”). In so holding, the Ninth Circuit disagreed with...more

Citing Spokeo, Eleventh Circuit Rejects Class Action Over Late Mortgage Satisfaction Recordation, Holding Plaintiff Had Not...

The Eleventh Circuit recently held in Nicklaw v. CitiMortgage, Inc.(No. 15-14216) that a plaintiff lacks standing to sue a creditor where the plaintiff merely alleges that the creditor failed to timely record a mortgage...more

US Court of Appeals for the DC Circuit Declares Structure of the US Consumer Financial Protection Bureau Unconstitutional

The US Court of Appeals for the DC Circuit declared the structure of the US Consumer Financial Protection Bureau unconstitutional, stating that the “massive, unchecked power” exercised by its director, Richard Cordray, lacks...more

Cordray remarks to MBA signal continued CFPB focus on servicing, likely petition for rehearing in PHH case

In his remarks at the Mortgage Bankers Association’s annual meeting in Boston on October 25, Director Cordray signaled that mortgage servicing will continue to be a focus of CFPB supervisory and enforcement activity, with the...more

Ninth Circuit Denies Motion to Dismiss and Motion to Stay Publication of Decision Holding Nevada HOA Super-Priority Lien Statute...

As we have previously covered in a series of blog posts, the Nevada Supreme Court held in September 2014 that Nevada Revised Statute chapter 116 allows homeowners’ associations (HOAs) to non-judicially foreclose on homeowners...more

Court Rules CFPB Unconstitutional and Finds CFPB Improperly Applied Mortgage Lending and Reinsurance Laws

In PHH Corporation v. Consumer Financial Protection Bureau, no. 15-1177 (D.C. Cir. Oct. 11, 2016), the Court of Appeals for the D.C. Circuit recently held that the organizational structure of the Consumer Financial Protection...more

Attachment Issues: Staple the Allonge to the Note or Else!

In attempting to fend off lenders’ mortgage foreclosure actions, borrowers will often assert defenses challenging the lenders’ right to foreclose. Two recent Connecticut Superior Court decisions provide cautionary tales on...more

District Court Holds That a Late Assignment to a Securitized Trust Is Voidable, Not Void, and Does Not Permit a Claim for Wrongful...

The U.S. District Court for the Northern District of California has issued an opinion in Spangler v. Selene Finance, LP, rejecting a borrower’s allegation that an assignment of a deed of trust recorded after a foreclosure...more

Federal Appeals Court Finds CFPB's Structure Unconstitutional

While certainly a big blow to the Bureau, the court’s remedy did not go as far as some CFPB opponents would have liked. In a blockbuster ruling on October 11, the U.S. Court of Appeals for the District of Columbia...more

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