News & Analysis as of

Foreclosure Appeals

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 -

Erasing Any Doubt: Arizona FED Actions Do Not Accrue Until Formal Demand for Possession is Tendered

by Snell & Wilmer on

Clearing up any lingering confusion, in Carrington Mortgage Services, LLC v. Woods, 767 Ariz. Adv. Rep. 4 (June 22, 2017), the Arizona Court of Appeals confirmed that residential forcible entry and detainer actions in Arizona...more

Appellate Court Notes

by Pullman & Comley, LLC on

Appellate Court Advance Release Opinions: - AC38945 - Shook v. Bartholomew - AC38945 - Shook v. Eastern Connecticut Health Network, Inc. Defendants could not appeal plaintiff’s verdict in this motor vehicle accident...more

Section 1111(b) Election Not Available When Collateral Is Sold Post Petition

by Dechert LLP on

The facts in Salamon are straightforward. Salamon (“Buyer”) purchased real property from Behrend (“Seller”) that was already subject to two liens (the “Preexisting Debt”). Instead of paying cash at closing, the Buyer executed...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

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

What is the Effect of an Untimely Challenge to the Timeliness of a Trustee’s Sale?

by Snell & Wilmer on

Ever wonder what happens if a person challenges the timeliness of a trustee’s sale after the sale already occurred? Waiver of the argument of course! And, in the case of Wells Fargo Bank, N.A. v. Waltner, the affirmance of...more

Initiating Unlawful Detainer Actions: Perfection Not Required

by Lewitt Hackman on

In November 2016 the California Supreme Court ordered that a decision from the appellate division of the San Diego Superior Court in U.S. Financial, L.P. v. Michael McLitus (“McLitus”) be published. ...more

Third DCA Rejects 57.105 Attorney’s Fees Where Plaintiff Failed to Prove Standing

by Burr & Forman on

On March 1st, Florida’s Third District Court of Appeal affirmatively held that a mortgage holder who fails to prove its standing to foreclose is not liable to a defendant borrower for prevailing party attorney’s fees. The...more

Real Property & Title Insurance Update: Weeks Ending February 17 & 24, 2017

by Carlton Fields on

Foreclosure: foreclosing bank’s allegation that borrowers were in a continuing state of default sufficient to satisfy five-year statute of limitations even though stated initial default date was more than five years prior to...more

Second District Court of Appeal Declines to Apply Statute of Limitations to Bar Subsequent Foreclosure Actions Premised on...

by Burr & Forman on

Following the Florida Supreme Court’s recent decision in Bartram v. U.S. Bank, N.A., 41 Fla. L. Weekly S493, 2016 WL 6538647 (Fla. Nov. 3, 2016), courts were left to interpret how Bartram would affect lenders’ reliance on...more

West Coast Real Estate Update: February 2017 #2

by Holland & Knight LLP on

Jury Trial Waiver Undone by a Fundamental California Policy - It is common for commercial contracts to contain a choice of law provision. Some commercial contracts may even contain a clause that waives the right to seek...more

Real Property & Title Insurance Update: Week Ending February 10, 2017

by Carlton Fields on

REAL PROPERTY UPDATE - Foreclosure: where foreclosing bank, who purchased debt from original mortgagee, failed to establish standing to enforce lost note “through evidence of a valid assignment, proof of purchase of 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

Real Property & Title Insurance Update: Week Ending January 27, 2017

by Carlton Fields on

REAL PROPERTY UPDATE - Foreclosure/Lis Pendens: a proper reading of Florida Statute section 48.23(1)(d) is that “when a foreclosure action is prosecuted to a judicial sale, that sale discharges all liens, whether...more

Banking & Financial Services E-Note - January 2017

by Burr & Forman on

In an order issued earlier this month, Judge Dalton of the Middle District of Florida held that in anon-bankruptcy context, allegations that collection of a mortgage debt is barred by the statute of limitations do not form a...more

Appellate Court Reverses Course on Lis Pendens Effect on Post Judgment Liens

UPDATE: On rehearing, the appellate court held that all liens placed on property between a final judgment of foreclosure and judicial sale are discharged by Florida statute. Specifically, the court recognized that the sale...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

Fourth District Court of Appeal Breathes Life Back into Lis Pendens Statute

by Burr & Forman on

Florida’s Fourth District Court of Appeal breathed life back into the lis pendens statute by reversing course in Ober v. Town of Lauderdale-By-the-Sea. On a motion for rehearing, the Court withdrew and replaced its August 24,...more

Ohio Supreme Court Finds That An Action At Law On A Promissory Note To Collect A Mortgage Debt Is Separate And Distinct From An...

by Reminger Co., LPA on

The Supreme Court of Ohio recently clarified in a decision issued in Deutsche Bank Nat’l Trust Co. vs. Holden 2016-Ohio-4603; 2016 Ohio LEXIS 1803, that equitable rights and remedies which a party holds in and to a mortgage...more

Bourne Valley Redux

by Ballard Spahr LLP on

The dispute between lenders and the purchasers at homeowners’ association foreclosure sale regarding superiority of title has embroiled the State of Nevada since at least as early as 2012. Since the issue rose in volume and...more

Ninth Circuit Overturns Entz-White Lumber; Avoiding Default Interest Via Cure Through Chapter 11 Plan No Longer Valid

by Perkins Coie on

In the case of Pacifica L 51, LLC v. New Investments, Inc. (In re New Investments, Inc.), 9th Cir. November 4, 2016, the U.S. Court of Appeals for the Ninth Circuit held that a Chapter 11 debtor could not avoid paying default...more

The Ninth Circuit Holds That Enforcing A Security Interest Is Not Necessarily Debt Collection

On Oct. 19, 2016, the Ninth Circuit held that merely enforcing a security interest is not “debt collection” under the federal Fair Debt Collection Practices Act (“FDCPA”). In so holding, the Ninth Circuit disagreed with...more

Ninth Circuit Denies Motion to Dismiss and Motion to Stay Publication of Decision Holding Nevada HOA Super-Priority Lien Statute...

As we have previously covered in a series of blog posts, the Nevada Supreme Court held in September 2014 that Nevada Revised Statute chapter 116 allows homeowners’ associations (HOAs) to non-judicially foreclose on homeowners...more

The Eleventh Circuit has spoken: “Debtors who surrender property must get out of the creditor’s way”

In recent years, there has been a hotbed of litigation across the nation, particularly in Florida state and bankruptcy courts, regarding a debtor’s ability to contest a secured creditor’s foreclosure notwithstanding the...more

West Coast Real Estate Update: October 2016

by Holland & Knight LLP on

California Coastal Act Blocks Housing Project in Venice Despite Earlier Approvals - Judge James C. Chalfant of the California Court of Appeal on Sept. 29, 2016, affirmed a lower court ruling denying a developer’s...more

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