News & Analysis as of

Deficiency Judgments

Debtor May Be Entitled to Credit for “Reasonable Value” of Property Purchased by Lender at Mortgage Foreclosure Sale

by Stoel Rives LLP on

In Idaho, it has long been understood that a secured creditor that has foreclosed a mortgage may be able to also get a judgment against the debtor for the remainder of the debt, if the proceeds of the foreclosure sale are not...more

Double Trouble—Is Black Sky Capital Blue Skies for Lenders?

by Perkins Coie on

An annoying question for lenders is whether or not a lender can enforce two loans to the same borrower and secured by the same property. The nagging issue is usually raised when a lender makes (1) a first loan and an...more

When is a Question of Fact NOT a Question of Fact?

His light was red, swore the nuns. My light was green, slurred the drunk. Question of fact, ruled the judge. Summary judgment, denied. If cases were that simple, our courts wouldn’t have enough to do. Trial court motion...more

Ruling Eases Lenders’ Path to Deficiency Judgments in NC

Winning a deficiency judgment following foreclosure may become less costly for lenders following a May 5 ruling by the North Carolina Supreme Court in United Community Bank v. Wolfe. Reversing a previous ruling by the Court...more

North Carolina Supreme Court Adopts "Substantial Competent Evidence" Requirement for Borrowers Asserting "True Value" Defense in...

by Ward and Smith, P.A. on

On Friday, May 5, 2017, in a major victory for lenders, the North Carolina Supreme Court reversed the North Carolina Court of Appeals’s decision in United Community Bank v. Wolfe. In July 2015, the Court of Appeals decided in...more

Georgia Supreme Court Weighs in On Guarantor Liability for Deficiencies

by Bryan Cave on

On April 17, 2017, the Supreme Court of Georgia made yet another critical decision in a line of cases which together, create the framework for a guarantor’s liability for a deficiency after a foreclosure has been conducted....more

Lenders Welcome Cinco de Mayo Ruling From NC Supreme Court on Deficiency Judgments

Readers of my case alerts may remember a July 2015 alert about the troubling North Carolina Court of Appeals decision in United Community Bank v. Wolfe, which made it a lot harder for lenders to obtain a post-foreclosure...more

Real Property & Title Insurance Update: Week Ending April 28 & May 5, 2017

by Carlton Fields on

REAL PROPERTY UPDATE - Foreclosure: final summary judgment in borrower’s favor inappropriate where borrower merely asserted that lender mistakenly filed copy of original note with court, instead of original, and where...more

If At First You Don’t Succeed - Georgia Supreme Court Upholds Waiver of Confirmation After Prior Confirmation Action Denied

On April 17, 2017, the Supreme Court of Georgia found that defendant guarantors had waived the statutory protections under the Georgia foreclosure confirmation statute, and the lender could pursue a deficiency judgment...more

Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!

by Snell & Wilmer on

What law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. App. April...more

Courts Split on Definition of a “Return” for Tax Discharge

On October 11, 2016, Martin Smith petitioned the Supreme Court for a writ of certiorari to review a decision by the Ninth Circuit. After Smith failed to file a timely tax return, the IRS assessed a deficiency against him....more

CentsAbility: Creditors' Rights Law Update - South Carolina Court of Appeals applies Uniform Commercial Code Six-Year Statute of...

by Nexsen Pruet, PLLC on

This summer, the South Carolina Court of Appeals decided the appeal of Coastal Federal Credit Union v. Brown. The Court had to determine which statute of limitations applied to the credit union’s action to collect a...more

Real Property & Title Insurance Update: Week Ending August 19 & 26, 2016

by Carlton Fields on

Real Property Update: - Lis Pendens/Subsequent Liens: lis pendens statute only serves to discharge liens that exist or arise prior to entry of foreclosure judgment but does not affect liens that arise after entry of...more

Real Property & Title Insurance Update: Week Ending August 12, 2016

by Carlton Fields on

REAL PROPERTY UPDATE: Jurisdiction/Deficiency Judgment: Second DCA agrees with Third DCA that “a circuit court has subject matter jurisdiction to adjudicate an independent deficiency action when the plaintiff had...more

The Uniform Commercial Real Estate Receivership Act (Part 2) — Would “Receiver Sales” Conflict with California Law?

In the last post — The Uniform Commercial Real Estate Receivership Act (Part 1) — Pathway to “Receiver Sales” of Real Estate Security? — we previewed the “Receiver Sale” provisions of the proposed Uniform Commercial Real...more

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

by 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

Real Property & Title Insurance Update: Weeks Ending June 24 & July 1, 2016

by Carlton Fields on

REAL PROPERTY UPDATE - Foreclosure/Leave to Amend: borrower should have been granted leave to amend to assert affirmative defenses pursuant to motion filed 13 days before trial because there was no prejudice, the...more

Real Property & Title Insurance Update: Weeks Ending June 10 & 17, 2016

by Carlton Fields on

REAL PROPERTY UPDATE - - Foreclosure/Standing/Hearsay: copy of a note with undated allonge containing blank endorsement sufficient to establish standing as a matter of law, even though bank did not have formal...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending March 11 & 18, 2016

by Carlton Fields on

REAL PROPERTY UPDATE - - Foreclosure/Standing: substitute plaintiff failed to establish standing to enforce note and fact that original plaintiff had filed original note endorsed in blank before assignment did not...more

California Supreme Court Dismisses Review of McDonald Case (Addressing Deficiency Recovery in Multi-Borrower Context)

As noted in my prior post, Money and Dirt: Reviewing 2015; Previewing 2016, one of the expected developments for 2016 was the California Supreme Court’s decision on whether to proceed with review of the Fifth District Court...more

Georgia Supreme Court Answers “Yes”—A Guarantor May Waive Foreclosure Confirmation

In a decision issued on February 22, 2016, the Supreme Court of Georgia ruled that a guarantor can waive by contract the requirement for a lender to obtain confirmation of a foreclosure sale before pursuing the guarantor for...more

Indiana Court Weighs in Deficiency Judgments

The Indiana Court of Appeals recently held that creditors must move for an in personam remedy in the original foreclosure judgment or forfeit their right to collect deficiency funds. In Elliott v. Dyck O’Neal, the bank...more

Real Property, Financial Services & Title Insurance Update: Week Ending October 9, 2015

by Carlton Fields on

REAL PROPERTY UPDATE - Certiorari; discovery: Certiorari review was not available to an owner of property seeking review of a trial court’s order denying his discovery requests, where the order did not completely...more

Secured Lenders – Stay on Top of the Law or Proceed at Your Own Risk

by Poyner Spruill LLP on

For years, the typical post-default strategy of secured lenders has been to foreclose the collateral through the power-of-sale contained in the deed of trust, credit the foreclosure proceeds to the outstanding loan balance,...more

High Point Bank v. Highmark and Guarantor Liability in North Carolina

When a borrower’s default results in a foreclosure sale and purchase of the secured property by the mortgagee lender, can a guarantor’s deficiency liability be reduced by the difference between the property’s fair market...more

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