Deed of Trust

News & Analysis as of

Is a “Receiver’s Sale” a Foreclosure Sale?

Earlier this year, the Nevada Supreme Court held in U.S. Bank Nat’l Assn. v. Palmilla Dev. Co. that under Nevada law, a “receiver’s sale” of real property securing a loan qualifies as a judicial foreclosure sale, and...more

MERS: Better Than a Faster Horse

MERSCORP, Inc. (“MERS”) has been under fire for years. We wrote about it a while back when residential mortgage borrowers challenged the ability of MERS to foreclose on mortgages it held on the theory that MERS, as a mere...more

The Construction Advantage – Issue 19

Zombie Lien in Washington State: The Lien That Just Won’t Die - In Shelcon Construction Group v. Hammond and Anchor Mutual Savings Bank, decided on May 27, 2015, a Washington State Court of Appeals court determined that...more

How Nevada SB 306 and Court Rulings Have Changed the Foreclosure Landscape - Counsel's Corner with Jon Patterson

What changes were brought about to the HOA foreclosure sale landscape by the passage of SB 306 in Nevada? SB 306 contained a number of important revisions to Nevada’s super-priority lien statute that will provide...more

NC Court of Appeals Weighs in on Multiple Creditor’s Rights Issues

The NC Court of Appeals has issued a number of opinions this year involving lender foreclosure or collection efforts. Not all of the holdings have been monumental, but there is a common thread of useful principles,...more

Nevada HOA Super-Priority Lien Statute Preempted by Federal Law, Holds U.S. District Court

On Monday, the U.S. District Court for Nevada issued significant decisions in three cases, holding that a foreclosure on a Nevada HOA’s super-priority lien could not extinguish a deed of trust securing a debt owned by a...more

Notice Me: The New Notice Requirements for HOA Lien Foreclosures in Nevada

In a previous blog post, we reported on Senate Bill 306, passed by Nevada Governor Brian Sandoval on May 28, 2015. The legislation redresses the substantial harm caused by SFR Investments Pool 1, LLC v. U.S. Bank, N.A. In SFR...more

Foreclosed Property: Related Rights May Be Tricky

Cooper v. WPD Polar Ridge, LLC (In re Poplar Ridge, LLC), 526 B.R. 147 (W.D. N.C. 2015) – After a developer defaulted, the trustee under a deed of trust held a pre-petition foreclosure sale.  The issue was whether the...more

Nevada HOA Foreclosures Cannot Extinguish Deeds of Trust Held by Fannie Mae, Holds U.S. District Court

Yesterday, the U.S. District Court for the District of Nevada issued an important ruling concerning the litigation over whether homeowners’ association foreclosures under Nevada’s super-priority lien statute (NRS 116.3116)...more

Recording Errors: A Typo Is Not Always Fatal

Deirdra Renee Gause v. Citifinancial Services, Inc. (In re Deirdra Renee Gause), 525 B.R. 35 (Bankr. M.D. N.C. 2014) – A chapter 13 debtor sought a court determination that a mortgage loan was unsecured because there was...more

Nevada Amends Laws Regarding Homeowners’ Association Liens

While an amended Nevada Senate bill does not change the Nevada Supreme Court’s seminal holding that an association lien is a true priority lien that, when properly foreclosed, may extinguish a first deed of trust, the new law...more

Nevada Senate Passes Bill Affecting Super-Priority Liens in Foreclosure

The Nevada Legislature recently passed a bill intended, in part, to address issues resulting from the Nevada Supreme Court’s decision that a homeowners association lien is a true super-priority lien that, if foreclosed,...more

A Notice of Default Does Not “Disturb Possession”

An action to quiet title in real property can be governed by various statutes of limitation, depending on what theory underlies the claim. Possibilities include the five-year limitations period for adverse possession, the...more

Real Property 101 for Community Bankers in the Spilman Footprint

What is the difference between a Deed of Trust and a Mortgage? The terms “Deed of Trust” and “mortgage” are often used by people interchangeably. Both serve to give the lender a lien as collateral for a loan but, these...more

Community Banking Excellence - Issue One 2015

In This Issue: - Another Perspective - Facing Merger Challenges. In 5, 4, 3, 2, 1.... - Real Property 101 for Community Bankers in the Spilman Footprint - Facet One of Social Media and Community Banks - Employees...more

Nevada Passes HOA Super Priority Lien Fix

On May 28, 2015, Nevada Governor Brian Sandoval signed into law Senate Bill 306, which will fundamentally alter the HOA foreclosure sale landscape in Nevada. Following the Nevada Supreme Court’s decision in September 2014 in...more

Money, Dirt & Steel: Spring 2015 NC Real Property Litigation Update

MONEY: GUARANTORS CAN NOW RELY ON G.S. §45-21.36 VALUE DEFENSES - By statute in North Carolina, G.S. §45-21.36, certain obligors may defend a deficiency action where the bank is the successful bidder by arguing...more

Borrowers Cannot Challenge Mortgage Assignments, Says Nebraska Joining Other States

Attacking sufficiency, accuracy, or validity of assignments of mortgages and deeds of trust has been among the most common strategies employed by borrowers to challenge foreclosures. Allegations regarding the status of MERS,...more

2015 Update of Arizona's Anti-Deficiency Laws

Deadline for seeking deficiency. Section 33-814(A) of the Arizona Revised Statutes allows a foreclosing creditor (the "beneficiary"), within 90 days after the date of a trustee's sale, to commence an action to recover a...more

Foreclosure Sales: When Is the “Deed” Done?

In re Betchan, 524 B.R. 830 (Bankr. E.D. Wash. 2015) – A mortgagee was the highest bidder at a foreclosure sale that took place shortly before the debtor filed bankruptcy. The lender requested relief from the...more

Can First Deeds of Trust Survive an HOA Foreclosure in Wake of the SFR Investments Decision?

In September 2014, the Nevada Supreme Court, in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408 (Nev. Sep. 18, 2014), held that a portion of a homeowners’ association lien for delinquent assessments has true...more

Defeating Another Challenge to the Mortgage Electronic Registration System

Since the mortgage crisis began several years ago, the Mortgage Electronic Registration System (“MERS”) has faced numerous legal attacks relating to foreclosures, assignments and what interest MERS holds in a deed of trust or...more

Failure to Object to Court Procedure Waives Issue on Appeal

In the area of family law, there are many different types of proceedings that occur. However, when one of the proceedings is a record hearing, if an objection is not made to a particular issue, it is waived on appeal....more

Alterations Don’t Always Render a Deed Void (or How NOT to do Foreclosure Investing)

Most real estate investors assume that when a deed is altered by someone other than the grantor, without the grantor’s knowledge or consent, before it is recorded, then the deed is void and conveys no title, even as to bona...more

Deed of Trust Assignment without Debt Transfer Does Not Trigger TILA Notification Obligation, Maryland District Court Rules

The mere assignment of a deed of trust without a transfer of the underlying mortgage debt does not trigger a lender's obligation under the Truth in Lending Act (TILA) to notify the borrower of the assignment, according to a...more

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