News & Analysis as of

Breach of Contract Foreclosure Mortgages

Morrison & Foerster LLP

Scrivener’s Error in Guaranty Reformed Outside of Statute of Limitations and Held Enforceable

In an appeal heard by the Appellate Division of the Supreme Court in the First Judicial Department of New York, the Court recently ruled that a court may reform a guaranty after the statute of limitations for a reformation of...more

Stark & Stark

Commercial Foreclosures in Pennsylvania: How Deal Formation Impacts Litigation

Stark & Stark on

The fact that commercial transactions can very easily become complex is not a novel statement. When financial institutions lend money to commercial entities, the basic documentation required to evidence the loan, promise to...more

Freiberger Haber LLP

Pleading Reasonable Reliance Is “Always Nettlesome”

Freiberger Haber LLP on

By: Jeffrey M. Haber In TD Bank, N.A. v. Keenan, 2023 N.Y. Slip Op. 06158 (2d Dept. Nov. 29, 2023) (here), the Appellate Division, Second Department examined the often “nettlesome” question of whether a plaintiff claiming...more

Freiberger Haber LLP

Fraud Notes: Duplication, Failure to Identify Misrepresentations of Fact, and Fraudulent Concealment

Freiberger Haber LLP on

On August 23, 2023, the Appellate Division, Second Department issued two decisions that briefly touched upon fraud causes of action: Hershman v. Bank of N.Y. Mellon, 2023 N.Y. Slip Op. 04369 (2d Dept. Aug. 22, 2023) (here),...more

McGlinchey Stafford

Can I Recover Fees Under an Offer of Judgment Even if I Lose on Appeal? - McGlinchey Commercial Law Bulletin - June 22 2023

McGlinchey Stafford on

Marchbanks v. Ice House Ventures, LLC, Slip. Op. No. 2023-Ohio-1866. In this discretionary appeal, the Ohio Supreme Court reversed the appellate court’s ruling, finding that an enforceable settlement agreement existed,...more

Cadwalader, Wickersham & Taft LLP

Title (Coverage) Not Available

Two recent decisions concerning title insurance illustrate that an insured’s negligence can result in an exclusion from coverage and that title insurers generally do not owe a fiduciary duty to their insureds....more

Cadwalader, Wickersham & Taft LLP

Further Developments in Mezzanine Foreclosures

The New York State Supreme Court, New York County Commercial Division (the “Court”) decided in U.S. Bank, N.A. v. 342 Property LLC, on February 14, 2022, that a mezzanine lender that is not a party to loan documents that...more

McGlinchey Stafford

When do the AAA Rules Govern Arbitrability? - Commercial Law Bulletin April 25 2022

McGlinchey Stafford on

Ohio- Excess Sale Proceeds Royal Oaks Landmark, LLC v. Royal Oak Cal, LLC, 12th Dist. Clermont No. CA2021-06-025, 2022-Ohio-1144- In this appeal, the Twelfth Appellate District affirmed the trial court’s decision,...more

Carlton Fields

Real Property, Financial Services, & Title Insurance Update: Week Ending June 26, 2020

Carlton Fields on

Real Property Update - Foreclosure / Condition Precedent: Borrower who raises an affirmative defense, such as failure of conditions precedent, bears the burden of proving that affirmative defense even if lender's complaint...more

Bilzin Sumberg

Eleventh Circuit Holds that a Guarantor Lacks Standing Under the Equal Credit Opportunity Act

Bilzin Sumberg on

Late last month, the U.S. Court of Appeals for the Eleventh Circuit held in Regions Bank v. Legal Outsource PA, No. 17-11736, 2019 WL 4051703 (11th Cir. Aug 28, 2019), that a loan guarantor does not qualify as an “applicant”...more

Carlton Fields

Real Property, Financial Services, & Title Insurance Update: Week Ending August 23, 2019

Carlton Fields on

Real Property Update - Foreclosure Sale: borrowers failed to allege adequate equitable factors and make proper showing to justify setting aside foreclosure sale, but instead re-litigate issues determined in underlying...more

Carlton Fields

Real Property & Title Insurance Update: Week Ending February 1, 2019

Carlton Fields on

Real Property Update - Foreclosure / Surplus Funds: sections 45.032 and 45.033, Florida Statutes, create a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is...more

Carlton Fields

Real Property & Financial Services Update: Week Ending February 16 & 23, 2018

Carlton Fields on

REAL PROPERTY UPDATE - Breach of Contract/Damages: court erred by precluding setoff when calculating damages because purpose of award is to restore the injured party to the position it would have realized no for the other...more

Carlton Fields

Real Property, Financial Services, & Title Insurance Update: Week Ending February 9, 2018

Carlton Fields on

Misrepresentation/Concealment: genuine issues of material fact remained in dispute regarding whether board-certified real estate attorney committed fraudulent or negligent misrepresentation or concealment by falsely assuring...more

Carlton Fields

Real Property & Title Insurance Update: Week Ending May 19 & 26, 2017

Carlton Fields on

Real Property Update - Foreclosure/Standing/Lost Note: if plaintiff did not have right to enforce note when lost, plaintiff should present evidence of assignment from payee to plaintiff or affidavit of ownership - ...more

Carlton Fields

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

Carlton Fields on

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

Carlton Fields

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

Carlton Fields on

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

Carlton Fields

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

Carlton Fields on

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

Carlton Fields

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

Carlton Fields on

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

Dickinson Wright

Rules Against Title Insurer on Date of Loss Issue

Dickinson Wright on

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

Carlton Fields

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

Carlton Fields on

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

Bradley Arant Boult Cummings LLP

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 Contract. ...more

Snell & Wilmer

Borrowers Can Avoid Liability Even After a Trustee’s Sale

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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

Poyner Spruill LLP

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

Poyner Spruill LLP on

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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