Breach of Contract Foreclosure

News & Analysis as of

Real Property & Title Insurance Update: Weeks Ending November 18 & 25, 2016

REAL PROPERTY UPDATE - Settlement/Waiver: borrowers permitted to raise affirmative defenses and counterclaims against lender where subject Loan Modification Agreement failed to include waiver of claims, affirmative...more

In the Tenth Circuit, Colorado’s On-Going Debate over the “Fairly Debatable” Defense

A recent Tenth Circuit Court of Appeals decision, The Home Loan Investment Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256 (10th Cir. 2016), demonstrates that, although multiple jurisdictions may recognize similar defenses...more

Real Property & Title Insurance Update: Weeks Ending September 2 & 9, 2016

REAL PROPERTY UPDATE: Foreclosure/Standing: where copy of note attached to foreclosure complaint contained no endorsement and original note presented at trial had endorsement in favor of plaintiff, plaintiff required to...more

Washington Supreme Court Closes the Door on Changing the Locks

In Jordan v. Nationstar Mortgage, LLC, the Washington Supreme Court issued a stern warning to lenders seeking to change the locks on foreclosure properties. Given the significant potential liability exposure created by the...more

Real Property & Title Insurance Update: Week Ending July 15, 2016

REAL PROPERTY UPDATE - Foreclosure/Unclean Hands: defense of unclean hands insufficient where borrower alleges bank’s loan officer inflated borrower’s income and assets to qualify for loan where borrower signed off on...more

Texas Home Equity Loan Litigation Update: Eastern District of Texas Reaffirms that Quiet-Title and Breach-of-Contract Claims...

On May 20, 2016, the Texas Supreme Court issued two opinions dealing with the home-equity lending provisions in article XVI, section 50 of the Texas Constitution. In Wood v. HSBC Bank USA, N.A., ___ S.W.3d ___, 2016 WL...more

Supreme Court of Texas; Recent Texas Home Equity Lending Decisions

On May 20, 2016, the Supreme Court of Texas (the "Court") issued its opinions in two cases involving Texas home equity lending – Garofolo v. Ocwen Loan Servicing and Wood v. HSBC Bank USA. The decisions are important for the...more

Risks of Withdrawing a Case: Reciprocity of Attorneys’ Fees in Connecticut Consumer Contract Default Actions

Lenders beware! If you have brought an action to seek recovery of a defaulted consumer loan whether it be foreclosure or a breach of contract action, Connecticut has a statutory scheme which provides that the debtor, if it...more

Money, Dirt and Steel: Spring 2016 Newsletter

A snapshot of noteworthy cases from the Spring terms of the North Carolina appellate courts related to lending practices, property rights and construction in North Carolina - Money - FORECLOSURE: - Lender...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19493 - Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act - SC19493 Dissent - Standard Oil of Connecticut, Inc. v. Administrator,...more

Real Property, Financial Services & Title Insurance Update: Week Ending October 16, 2015

REAL PROPERTY UPDATE - - Foreclosure/Standing: although bank established it had possession of note prior to commencement of action, bank did not demonstrate when blank endorsement was placed on note, nor did it prove it...more

Appellate Court Notes

Appellate Court Advance Release Opinions - AC36506 - Sidorova v. East Lyme Board of Education - Due to budget cuts, the Board of Education laid off the plaintiff who was a tenured French teacher. She sued for...more

Rules Against Title Insurer on Date of Loss Issue

In the recent decision in First American Title Insurance Co. v. Johnson Bank, 1 CA-CV 14-0190, 2015 WL 3965740 filed June 30, 2015, the Arizona Court of Appeals held that the date for calculating a loss under a lender’s title...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending May 22, 2015

REAL PROPERTY UPDATE - Duty to Disclose/Vacant Property: plaintiff failed to present competent, substantial evidence of existence of fact materially affecting value of property and did not prove defendants had actual...more

Florida Court Recognizes Need To Show Prejudice To Establish Defense Of Failure Of Conditions Precedent Under Paragraph 22 Of The...

As part of its defense at trial in a foreclosure action, the defendants asserted that the plaintiff bank failed to satisfy the condition precedent of providing notice and an opportunity to cure before filing its complaint, as...more

Foreclosing on FHA-Insured Mortgage in Violation of HUD Regulations Could Constitute Breach of Contract

Eleventh Circuit Rules that Failure to Comply with HUD Regulations in Foreclosing on FHA-Insured Mortgage – Including the Requirement of Having a Face-to-Face Meeting With the Debtor – Can Constitute a Breach of...more

Real Property, Financial Services & Title Insurance Case Law Update

Neutral Evaluation/Sinkhole Litigation: trial court erred in sustaining objection to insurer’s notice of stay to invoke neutral evaluation process in lawsuit for breach of contract and damages for sinkhole losses to property...more

Virginia Supreme Court Allows Damages Claim for Violation of HUD Regulation Requiring Face-to-Face Meeting before Seeking...

The Virginia Supreme Court recently expanded the grounds under which a private borrower can sue a lender for violations of HUD regulations. In Squire v. Virginia Housing Development Authority, a decision issued on April 17,...more

Borrowers Can Avoid Liability Even After a Trustee’s Sale

Since a lender must have a valid debt and valid lien to conduct a trustee’s sale, a borrower that allows the foreclosure sale to occur impliedly agrees that the debt and lien are valid. In Madison v. Groseth and BT Capital,...more

Real Property, Financial Services & Title Insurance Case Law Update: May 2014 #1

I. FLORIDA STATE CASES - SARA WITMEYER - - Jurisdiction: where court never entered order authorizing individual to intervene and individual never became party to litigation, court had no personal jurisdiction to...more

Real Property, Financial Services & Title Insurance Case Law Update

I. FLORIDA STATE CASES – JOURDAN HAYNES & ILAN NIEUCHOWICZ - - Landlord/Tenant: lessor did not breach commercial lease by failing to complete construction by date certain where lease did not provide date by which...more

"I Knew You Were Trouble": Recent Trends in Lender Liability Litigation

Lender liability claims generally arise in one of following contexts: (i) claims seeking recovery of damage or "leverage" to accept discounted payoffs; (ii) counterclaims to foreclosure/receivership/guarantor actions; or...more

North Carolina Court of Appeals Allows Borrower to Take Breach of Fiduciary Duty Claims Against Lender to a Jury

In what may be a first for a North Carolina appellate court, the North Carolina Court of Appeals has reversed the entry of summary judgment for a lender on a borrower’s breach of fiduciary claim. In Dallaire v. Bank of...more

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