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 -
News & Analysis as of

Sham Guaranty Defense Curbed by California Court

Last month in CADC/RAD Venture 2011-1 LLC v. Bradley, the California Court of Appeal ruled against the "sham guaranty" defense by guarantors who had formed the borrowing entity without being asked to do so by the lender. ...more

Sixth Circuit Rejects Due Process Clause Challenge to Michigan Foreclosure

The state of Michigan has supplied the Sixth Circuit with no shortage of foreclosure-related decisions since the financial crisis, but the court’s recent decision in Garcia v. Federal National Mortgage Association, No....more

Punishment Didn’t Fit the Crime: Court Reverses Dismissal of Action and Cancellation of Note and Mortgage

In Deutsche Bank Nat’l Trust Co. v. Adriana Avila-Gonzalez, 2015 WL 2089094 (Fla. 3d DCA May 6, 2015), the Florida Third District Court of Appeal reversed a trial court order that dismissed a foreclosure action with prejudice...more

Burr Commentary: Florida’s 5th DCA Holds Prejudice Necessary to Show Defense Under Paragraph 22, Splits With Own Panels in Haberl...

In Gorel v. Bank of New York Mellon, 5D13-3272 (Fla. 5th DCA May 8, 2015) Florida’s Fifth District Court of Appeal offered relief to increasingly popular arguments using minor defects in paragraph 22 notices of default as a...more

Florida’s 3rd DCA Reverses Dismissal Based on the Technical Admission

Florida’s Third District Court of Appeals reversed the involuntary dismissal of Wells Fargo Bank, N.A.’s (“Wells Fargo”) foreclosure action against borrower, Melissa Donaldson (“Donaldson”), ruling that it was an abuse of...more

Sanity in Florida? New Ruling Sheds Some Light on the Business Records Exception

On May 6, 2015, Florida's Third District Court of Appeal finally weighed in on an important tactic relied on by servicers in residential foreclosure actions. In Bank of America, N.A. v. Delgado, No. 3D13-910 (Fla. 3d DCA May...more

Servicer Foreclosing in Own Name Must Establish Standing and Ratification by Real Party in Interest

In Russell v. Aurora Loan Services, LLC, 40 Fla. L. Weekly D967a (Fla. 2d DCA Apr. 24, 2015), Florida’s Second District Court of Appeal added to the emerging line of case law regarding the proof required to establish standing...more

Challenge to Trustee’s Standing to Foreclose Dismissed as Moot after Loan Modification

In Matt v. HSBC Bank USA, N.A., the U.S. Court of Appeals for the First Circuit dismissed as moot a borrower’s claims that HSBC as Trustee for the investor lacked authority to act under the terms of the mortgage....more

NC Foreclosure Statute of Limitations – A Tale of “Zombie” Deeds of Trust?

Let’s face it. Zombies are everywhere. I can’t seem to pass a movie theater or flip a TV channel without seeing or hearing something about them. So of course they were top of mind when I read the North Carolina Court of...more

Locke Lord QuickStudy: Third Circuit Expands Reach of FDCPA in Kaymark Decision

Just last week, the Third Circuit held that a borrower can state a claim for violation of the Fair Debt Collection Practices Act (FDCPA) when a foreclosing plaintiff alleges incorrect fees as part of a foreclosure complaint. ...more

Third Circuit Rules FDCPA Claims Can Be Based on Foreclosure Complaints

The U.S. Court of Appeals for the Third Circuit recently ruled that foreclosure complaints can be the basis of Fair Debt Collection Practices Act (FDCPA) claims. This decision continues the Third Circuit's expansive...more

Lenders Still Struggle with Issue of Standing – a New Spate of Cases out of the Fourth DCA

We have written multiple blogs about standing to foreclose, but a new spate of recent cases out of Florida’s Fourth District Court of Appeals demonstrate that lenders still struggle with the issue of standing. On March 25,...more

N.C. Court of Appeals Addresses Common Affirmative Defenses In Commercial Foreclosure Context

A recent opinion from the North Carolina Court of Appeals addresses some common borrower defenses within the context of foreclosure and statute of frauds issues: compromise and settlement, accord and satisfaction, the...more

Authenticating Evidence In Support of Summary Judgment

Florida’s Fifth District Court of Appeal recently filed an opinion that emphasizes the importance of properly authenticating evidence in support of a motion for summary judgment. In Colon v. JP Morgan Chase Bank, N.A. et al.,...more

Acceleration and Florida’s Five-Year Statute of Limitations

Florida’s Third District Court of Appeal recently filed an opinion that illuminates when a lender’s acceleration of debt triggers the five-year statute of limitations. In Snow v. Wells Fargo Bank, N.A., 2015 WL 160326 (Fla....more

Loan Document Interpretation – Wow! Drafter Beware.

A California Court of Appeals recently opined on what appear to be fairly normal yield maintenance provisions. The Borrower defaulted. The bank accelerated the note and later foreclosed. The note provided that the prepayment...more

Indiana Court of Appeals Reverses “E-Mortgage” Decision

The Indiana Court of Appeals reversed and remanded for further proceedings a trial court’s grant of partial summary judgment and held that because the plaintiff did not show that it controlled the electronic mortgage note...more

No Change Of Position, No Estoppel

Under California Law, a party seeking to defeat the statute of frauds based on promissory estoppel must allege an actual change in position. In Jones v. Wachovia Bank, 230 Cal.App.4th 935 (2014), the California Court of...more

California Foreclosure Law: California Supreme Court Grants Review Of The Keshtgar Decision

As reported in our blog article below, in June the Second District Court of Appeal held that California’s non-judicial foreclosure statutes do not grant a defaulting borrower the right to enjoin a foreclosure sale by alleging...more

N.C. Appellate Court Discusses Service of Process By "Posting" and Due Diligence Enabling "Posting"

The North Carolina Court of Appeals issued a fractured ruling today on the manner of service and the interpretation of North Carolina Rule of Procedure 4(j1). The case is In re Powell, No. COA14-498 (December 2, 2014)....more

Vendees' Liens—Construction Lenders Beware!

A recent Arizona Court of Appeals decision highlights a lien priority risk for secured construction lenders when the financed project fails. The problem—known as a “vendee lien”—is most likely to arise when up-front deposits...more

Mechanic’s Lien Reigns Supreme in the Battle of a Project Default? Not for a Waiving General

In what can only be described as a devastating result for a general contractor, the Fourth Appellate District held that a general contractor may prospectively waive the priority of a mechanic’s lien to the owner’s...more

CLIENT ALERT: Arizona Supreme Court to Decide if Borrowers and Guarantors Can Waive Fair Market Value Defense

In September 2013, the Arizona Court of Appeals held that commercial borrowers and guarantors cannot prospectively waive their right to seek a fair market value hearing to limit their potential deficiency liability following...more

New California Case Illustrates Peril of Full Credit Bid

In a new California case, a lender that made a full credit bid at a foreclosure sale lost its right as mortgagee under a lender’s insurance policy for damage to the property that occurred prior to foreclosure. This was so...more

HOA Lien Extinguishes First Deed of Trust in Foreclosure, Nevada Supreme Court Holds

On the heels of a recent D.C. Court of Appeals ruling, the Nevada Supreme Court issued an opinion yesterday holding that a homeowners association (HOA) lien is a true super-priority lien that, if foreclosed upon, extinguishes...more

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