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News & Analysis as of

ISDA Section 2(a)(iii) Amendment Limits Prerogatives of Non-Defaulting Parties

On June 19, the International Swaps and Derivatives Association (ISDA) published a long-awaited standard amendment to Section 2(a)(iii) of the ISDA Master Agreement (the Master Agreement). Section 2(a)(iii) of the Master...more

California Foreclosure Law: A Defaulting Borrower Cannot Enjoin A Foreclosure Sale By Asserting That The Lender Lacks Standing

Under California’s non-judicial foreclosure statutes, a defaulting borrower cannot enjoin a lender’s initiation of foreclosure proceedings by asserting that the lender lacks standing. (Keshtgar v. U.S. Bank, N.A. (2014) 192...more

Big Win for our Florida team in U.S. Bank N.A. v. Bartram

In U.S. Bank N.A. v. Bartram, ____ So.3d ____, 2014 WL 1632138 (Fla. 5th DCA April 25, 2014), the Fifth District Court of Appeals for the State of Florida reversed a decision from the Circuit Court of St. Johns County...more

Breaking the ISDA Section 2(a)(iii) Insolvency Stalemate

On 19 June 2014, the International Swaps and Derivatives Association (“ISDA”) published an amendment to the ISDA Master Agreement for use in relation to section 2(a)(iii) of that agreement, for parties who wish to amend their...more

Rating Agency Developments

On June 13, Moody’s announced that its private student loan default rate index will continue to decline. On June 13, Fitch announced that it has taken various conforming rating actions on enhanced municipal bonds and...more

Financial Institutions and Creditors’ Rights: Ninth Circuit Finds SCRA Liability Based on Prior Servicer’s Actions

The Servicemembers Civil Relief Act (“SCRA”) was signed into law in 2003, greatly expanding prior legislation in order to better assist servicemembers in avoiding default and foreclosure while they are on active duty. The...more

Appellate Court Notes

SC18961 - Robbins v. Physicians for Women's Health, LLC - The plaintiff filed this medical malpractice against a hospital, the doctor, the midwife, and the company (“PWH”) that bought the assets of the hospital after...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

Fannie Mae Updates Delinquency Management, Default Prevention Policies

On May 16, Fannie Mae announced through Servicing Guide Announcement SVC-2014-07, that for a borrower who submits a complete Borrower Response Package (BRP) or incomplete documentation 37 days or less prior to a foreclosure...more

Court Of Appeal Finds Lender Is Not Entitled To Recover Portion Of Developer's Future Judgment In Connection With Property Damage...

In Thoryk v. San Diego Gas & Electric Co. (2014) 225 Cal.App.4th 386, Thoryk owned a large piece of land ("Land") in San Diego County. Encumbering the Land was a first deed of trust in favor of PFI Realty ("PFI") and a...more

More on INTERPOL, the UAE, and Bounced Checks

A reader recently sent in this comment, which has been modified to protect the reader's privacy...more

Unlocking the Door

When faced with a party which refuses to pay their share of the arbitral fees, it may seem attractive to go to court claiming that the defaulting party has repudiated the arbitration clause. Such a backdoor approach to...more

Strategies for Handling Mortgage Repurchase Demands

Mortgage repurchase demands are par for the course in the world of mortgage lending, but they should not be ignored. Before you act, consider the following strategies for handling mortgage repurchase demands. Mortgage...more

A Primer On UCC Article 9 Sales

Article 9 of the Uniform Commercial Code sets forth a statutory scheme for both creating and enforcing security interests in personal property. Pursuant to Article 9, a lender seeking to collateralize an advance on the...more

Certain Residential Developers are Unprotected by the Anti-Deficiency Statute after Foreclosure of a Deed of Trust on Vacant...

Nearly three years ago, in M&I Marshall & Isley Bank v. Mueller, the Arizona Court of Appeals held that the Arizona anti-deficiency statute (A.R.S. § 33-814) protects a borrower who started, but never completed, construction...more

CFPB Releases Report on Student Loan Complaints

In alignment with its recent focus on private student loans, the CFPB released a report describing the types of complaints it received related to “auto defaults”, the practice of placing private student loan borrowers in...more

CFPB student loan complaints report highlights alleged co-signer issues

The CFPB’s Student Loan Ombudsman has released a report entitled “Mid-year update on student loan complaints” that highlights issues related to co-signers of private student loans. In particular, the report focuses on...more

Lenders Can Prepare for Tenant Offset Rights in SNDAs

Tenants’ limited recourse to their landlords has made “offset rights” a major issue in negotiating Subordination, Non-Disturbance and Attornment Agreements (SNDAs). Tenant offset rights arise when the tenant has the...more

Gainful Employment Rule and Student Loan Debt Counseling: A Perfect Match?

New regulations that will impose severe requirements on for-profit colleges and career training programs may open the door to an increased need for independent third-party student loan debt counseling. On March 14, 2014, the...more

Shedding Light on China’s Massive Shadow Banking Market - Landmark Corporate Bond Default - Part 1

The debt level of the PRC is rising. It is estimated that the PRC’s corporate debt could hit US$13.8 trillion in 2014, surpassing that of the United States (“U.S.”) as the largest in the world. This has raised increasing...more

Terminating Your Contract: Things to Remember Part 2

Let’s continue the discussion on issues to consider with regard to the termination of your contract. Most contracts have provisions governing what will constitute a breach or default and what the parties’ respective rights...more

Supreme Court of Rhode Island Declares Usury Savings Clauses Void

For public policy reasons, the Rhode Island Supreme Court recently held that usury savings clauses are void and unenforceable. In NV One, LLC v. Potomac Home Capital, LLC, borrowers who had defaulted on their note filed a...more

Florida Court Holds Notice After Default Not Necessarily Prejudicial

In its recent decision in Indemnity Ins. Co. v. Caylao, Case No. 1D12-5733 (Fla. 1st DCA. Feb. 4, 2014) the First District Court of Appeals for the state of Florida had occasion to consider whether an insurer who receives...more

Are Your Student Loans in Default? Check out these 2 Ways to Solve the Problem.

Are your student loans in default? If so you aren’t alone. Default rates on student loans are at their highest rate in decades. Once a student loan is considered in default you run the risk of wage garnishment, lawsuits,...more

4 Consequences to Defaulting on Your Student Loans

The amount of student loans incurred by Arizona residents continues to climb. In fact that total amount of student loan debt is now over $1 trillion dollars nationally. Many people find themselves in a situation where they...more

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