News & Analysis as of

Deed of Trust

Watch Out Commercial Real Property Lenders – Appointment of a Receiver is not a Slam Dunk

by Ervin Cohen & Jessup LLP on

The law is always changing. Sometimes changes in the law result from new cases or new statutes. However, sometimes the law changes in reaction to the mood of the country. At present, I believe that that the law may be...more

Tax Lien Takes Priority Over Earlier Interest Where Deed is Improperly Executed

by Miles & Stockbridge P.C. on

In the recent case of The Bank of NY Mellon v. Ashley, et al., 119 AFTR 2d 2017-1207 (D.C. Md. 2017), the U.S. District Court for the District of Maryland held that, where taxpayer-husband alone executed a deed of trust in...more

Even a “Bona Fide Purchaser” Can’t Rely on a Void Judgment

Under California law, “bona fide purchasers” who buy property with no notice (actual, constructive, or otherwise) of a competing claim to the property are generally protected. The law’s favorable treatment of bona fide...more

Court Finds That There Is A Fact Issue On Whether Corporate Shareholder And Officer Breached Fiduciary Duties To Creditors

by Winstead PC on

In Tow v. Wellington Yu, a bankruptcy trustee sued a corporation’s shareholder and officer for breaching fiduciary duties by entering into a settlement agreement that required the sale of real estate where the defendant would...more

Imperfect!!! – Recordation Alone May Not Be Suficient To Perfect Deeds Under California Law

by Ervin Cohen & Jessup LLP on

Once a lender records a deed of trust, isn’t that sufficient under California law to perfect the deed against a Chapter 7 trustee’s attempt to set it aside? Based on the recent bankruptcy court decision of In re Nowlin, the...more

Nev. Supreme Court Holds HOA Foreclosure Statute Constitutional, Splits with Ninth Circuit

by Ballard Spahr LLP on

The Nevada Supreme Court has upheld the constitutionality of Nevada's pre-2015 statutory scheme for homeowners association (HOA) foreclosures. This decision contradicts the Ninth Circuit Court of Appeals' conclusion that the...more

Ninth Circuit: Trustees Are Not “Debt Collectors” Under the FDCPA

by Goodwin on

A recent decision by the Ninth Circuit has created a circuit split regarding the interpretation of the Fair Debt Collection Practices Act (FDCPA). In Vien-Phung Ho v. ReconTrust Co. et al., case no. 10-56884, the court held...more

Has Yvanova Lost Its Mojo For Wrongful Foreclosure Plaintiffs?

In 2016, the California Supreme Court’s decision in Yvanova v. New Century Mortgage Corporation caused a lot of excitement among plaintiffs asserting wrongful foreclosure claims and a lot of grief among secured lenders....more

The Super-Priority Saga Continues – Nevada Supreme Court Holds That NRS 116’s Notice Provisions Are Constitutional

The Ninth Circuit sent shockwaves through the mortgage industry when it held that NRS 116—the statute allowing an HOA to impose a nominal super-priority lien that can extinguish a senior deed of trust when foreclosed—was...more

Transfer On Death Accounts And Deeds vs. Living Trust

by Dickinson Wright on

A question I am often asked is, “If I have designated my various financial accounts as transfer on death (TOD), or payable on death (POD), and I have a transfer on death deed on my house, why do I need a Living Trust?” While...more

Foreclosures in North Carolina - Say Goodbye to Discovery and Res Judicata

Late December is a time of family, mistletoe and “presents under the tree.” It’s not usually the time when minds switch to the specifics of foreclosure procedure. Yet just before they retired for their Christmas break, the...more

Protecting an Interest in a Ground Lease – A Lender’s Perspective

by Poyner Spruill LLP on

Lenders are often asked to provide financing secured by a leasehold interest in land evidenced by a ground lease. A ground lease is an agreement between the fee owner of real estate (the ground lessor or landlord) and its...more

Leave the “Tow Truck Guy” Alone: The Ninth Circuit Rules Foreclosure of a Deed of Trust Is Not Debt Collection

by K&L Gates LLP on

The Ninth Circuit recently clarified when a trustee of a deed of trust acts as a debt collector under the Fair Debt Collection Practices Act (“FDCPA”). In a break from other courts of appeal, the Ninth Circuit held that when...more

Ninth Circuit Holds Non-Judicial Foreclosure of Deed of Trust Is Not Debt Collection under the FDCPA

by Blank Rome LLP on

Action Item: The United States Court of Appeals for the Ninth Circuit affirms that activities incident to the non-judicial foreclosure of a deed of trust under California state law is not “debt collection” within the scope of...more

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

by Ballard Spahr LLP on

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

Virginia Supreme Court Opinion Affecting Local Government Law: September 22, 2016

by Sands Anderson PC on

The Virginia Supreme Court issued one additional opinion in September affecting local government law, on September 22, 2016. This opinion addressed the priority to be given a local government special assessment lien over a...more

N.C. Court of Appeals: Absent Notice to the Federal Government, Foreclosure for Unpaid Local Taxes Won't Extinguish Federal Tax...

North Carolina is a "pure race" state, for real estate title purposes. That is, “first to record an interest in land holds an interest superior to all other purchases for value, regardless of actual or constructive notice as...more

Equitable Subrogation Part Deux: Mechanic’s Lien vs. Later Bank Deed of Trust

by Snell & Wilmer on

This post follows, almost two years to the day, Rick Erickson’s post of August 29, 2014. As noted by Rick Erickson in his August 29, 2014 post, the Arizona Supreme Court in the Weitz case (2014) had determined that equitable...more

Yvanova Post-Script: It’s Not So Easy For Borrowers To Challenge Foreclosure Based on Defective Assignment of a Deed of Trust

For anyone who missed it, the California Supreme Court ruled earlier this year that a borrower has standing to allege wrongful foreclosure based on a void (but not merely voidable) assignment of the underlying note and deed...more

Sixth Circuit Nixes TILA Rescission Claim

by Butler Snow LLP on

Two homeowners tried to rescind their home mortgage loan when they weren’t notified that the deed of trust had been assigned. Although this argument may have been a creative way to stave off a foreclosure, it was not...more

North Carolina Court of Appeals Affirms Right of Former Trustee to Represent Lender in Foreclosure Under Deed of Trust

by Ward and Smith, P.A. on

Recently, the North Carolina Court of Appeals issued an opinion addressing whether a conflict of interest exists when a trustee under a deed of trust initiates a foreclosure proceeding and later represents the lender in that...more

The Ninth Circuit Weighs In: NRS 116 is Facially Unconstitutional

The tide may finally be turning in Nevada. Since the Nevada Supreme Court dealt a devastating blow to the whole of the financial services industry in September 2014 by holding that an HOA could foreclose on its super-priority...more

Priority of Future Advances Under Idaho Deeds of Trust Now in Doubt

by Stoel Rives LLP on

In Liberty Bankers Life Insurance Co. v. Witherspoon, No. 41993, 2016 WL 74987 (Idaho Jan. 6, 2016), the Idaho Supreme Court examined a loan modification agreement in which a lender agreed to release real property from its...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

Idaho Statute Protecting the Priority of Future Advances Does Not Apply to Deeds of Trust

by Stoel Rives LLP on

In Liberty Bankers Life Insurance Co. v. Witherspoon, No. 41993, 2016 WL 74987 (Idaho Jan. 6, 2016), the Idaho Supreme Court examined a loan modification agreement in which the lender agreed to release certain real property...more

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