Foreclosure

Foreclosure is a legal process whereby a lender seeks to force the sale of a mortgaged property in order to recover the balance of a delinquent loan. Recently, the foreclosure process has been the subject of... more +
Foreclosure is a legal process whereby a lender seeks to force the sale of a mortgaged property in order to recover the balance of a delinquent loan. Recently, the foreclosure process has been the subject of greater legislative and judicial scrutiny after systemic abuses were uncovered during the widespread foreclosure crisis resulting from the Great Recession. less -
News & Analysis as of

A New Case On Standing to Foreclose

Legal standing to foreclose a note and mortgage continues to be an issue that frustrates plaintiffs and delights defense counsel. Florida courts have consistently held that standing must exist when the lawsuit is filed and...more

Real Property, Financial Services & Title Insurance Update: August 2014 #1

Trial court erred in granting lender’s motion to vacate an order dismissing its foreclosure complaint for lack of prosecution without first giving borrower an opportunity to be heard at an evidentiary hearing. – Arcila v. BAC...more

Mortgage Enforcement: Dot Those “i”s and Cross Those “t”s – Or Else

A chapter 13 debtor objected to the portion of a mortgagee’s claim consisting of expenses related to foreclosure of its mortgage. She argued that since the mortgagee failed to comply with notice requirements under the...more

Feds, States Sweep Country for Mortgage Relief Scams

In an enforcement sweep dubbed “Operation Mis-Modification,” the Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CFPB), and 15 state Attorneys General have targeted “foreclosure relief scammers that have...more

Property Tax Foreclosure: Tax Authority May Have to Pay for Equity in Property

A chapter 7 trustee sought to avoid a property tax foreclosure as a fraudulent transfer and then to recover damages from the foreclosing county. The bankruptcy court agreed that the transfer was a fraudulent conveyance, but...more

Minnesota Supreme Court Rejects Twombly/Iqbal Pleading Standard

On August 6, the Minnesota Supreme Court held in a foreclosure-related case that the plausibility standard announced in Twombly and Iqbal does not apply to civil pleadings in Minnesota state court. Walsh v. U.S. Bank, N.A.,...more

Bankruptcy Beat: Connecticut District Court Suggests Automatic Stay May Apply To Non-debtor Junior Lienholders In Foreclosure...

On July 22, 2014, the Connecticut District Court issued an opinion, Eastern Savings Bank FSB v. St. Germain, et al, 2014 WL 3687740 (D. Conn. 2014), which could impact the applicability of the automatic stay of 11 U.S.C....more

Claimant Must Exhaust Administrative Remedies Provided For In The Financial Institutions Reform, Recovery, and Enforcement Act of...

After defaulting on his Hawaii home mortgage with Washington Mutual Bank ("Wamu") and facing nonjudicial foreclosure, Todd Rundgren (Hello It's Me) and his wife, Michelle (collectively the "Rundgrens"), sued Wamu and JP...more

Implied Restrictive Covenant Prevents Conversion of Golf Course to Residential Lots

A federal court of appeals held that a golf course was encumbered by an implied restrictive covenant, preventing the foreclosing lender from selling the golf course for residential development. The U.S. Court of Appeals for...more

CFPB, FTC, And State Authorities Coordinate Action Against Foreclosure Relief Companies

On July 23, the CFPB, the FTC, and 15 state authorities coordinated to take action against foreclosure relief companies and associated individuals alleged to have employed deceptive marketing tactics to obtain business from...more

Merger Doctrine Does Not Prevent Deed of Trust Beneficiary From Extinguishing Junior Lien through Foreclosure, California Court...

The California Court of Appeal recently held that a foreclosure by the beneficiary under a first deed of trust extinguished a junior lien, even though the beneficiary acquired the property by way of a deed in lieu of...more

HUD Requires Electronic Retention Of Foreclosure-Related Documents

On July 23, HUD issued Mortgagee Letter 2014-16, which requires FHA mortgagees to retain electronic copies of certain foreclosure-related documents and extends the record retention period to seven years after the life of an...more

“Operation Mis-Modification” Targets Foreclosure Relief Companies

The CFPB continues to ramp up its enforcement actions and its collaboration with state AG offices as part of the new “Operation Mis-Modification.” The CFPB, the FTC and fifteen states announced a series of lawsuits...more

Standing To Foreclose– Revisited

There have been several articles posted on this blog on the subject of standing – the legal right to enforce a promissory note and/or mortgage. This continues to be a popular issue for defense counsel to raise and, as a...more

Freddie Mac Updates Alternative To Foreclosure Requirements, Other Servicing Policies

On July 15, Freddie Mac issued Bulletin 2014-14, which announced a new automated settlement process for mortgage modification settlements. Effective December 1, 2014, servicers must submit the required settlement data for a...more

HUD Updates Requirements For Pre-Foreclosure Sales And Deeds-In-Lieu Of Foreclosure

On July 10, HUD issued Mortgagee Letter 2014-15, which updates requirements for pre-foreclosure sales (PFS) and deeds-in-lieu (DIL) of foreclosure for all mortgagees servicing FHA single-family mortgages....more

Preserving The Right To Foreclose After Accepting A Deed In Lieu

When a lender seeks to foreclose under a deed of trust, often a borrower who does not have the resources or incentive to resist the foreclosure will offer the lender a deed in lieu of foreclosure. This can be an attractive...more

Statute of Limitations Issues in Foreclosure Actions

An important issue that arises for lenders when pursuing foreclosure actions is determining when the statute of limitations begins to run. Florida Statutes provide that a party has five years to foreclose a mortgage, but...more

Real Property, Financial Services & Title Insurance Update

Easements: trial court erred in denying statutory easement or “way of necessity” where owners established all elements pursuant to section 704.01(2), Fla. Stat. – Messer v. Sanders, No. 1D13-3084 (Fla. 1st DCA July 9, 2014)...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

S.D.N.Y. U.S. Attorney Obtains FHA, GSE False Claims Settlement

On July 1, the U.S. Attorney for the Southern District of New York announced that a large bank agreed to pay $10 million to resolve allegations that prior to 2011 it violated the False Claims Act and FIRREA by failing to...more

Florida Federal District Court Dismisses Miami’s Fair Housing Act Cases

On July 10, the U.S. District Court for the Southern District of Florida dismissed with prejudice the Fair Housing Act claims in three suits filed by the City of Miami against mortgage lenders. City of Miami v. Bank of Am.,...more

Walking Dead? Beware the Zombie Foreclosure

The so-called "zombie foreclosure" is a new, big CFPB issue. A zombie foreclosure is a foreclosure that is started, then the borrowers either move out of the property before receiving or just after receiving notice....more

Georgia Court of Appeals Expands Lenders' Ability to Pursue Guarantor Deficiency Judgment Suits Beyond Foreclosure Confirmations

The Court of Appeals of Georgia further clarified Georgia's treatment of deficiency judgment suits against guarantors in instances where lenders cannot obtain foreclosure confirmations of secured property. Community &...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

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