Foreclosure Borrowers

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

Appellate Court Rejects Claim That Borrower Must Be Permitted to Conduct Life of Loan Standing Discovery or Examine Bank Policies...

Standing is one of the top issues in foreclosure case law. So it comes as no surprise that the issue of standing is also a common focal point for discovery disputes in foreclosures. It has become common foreclosure defense...more

CFPB Reports Continued Mortgage Servicing and Other Violations of Consumer Financial Law

In its Supervisory Highlights released earlier this summer, the CFPB reported its examination observations in consumer reporting, debt collection, mortgage origination and servicing, fair lending, and student loan servicing....more

Florida Court Confirms Substantial Compliance Standard Concerning Foreclosures

The Florida Second District Court of Appeal recently issued a long-awaited opinion in Green Tree Servicing v. Milam. Until this decision, the district courts in Florida had not spoken directly on the issue of whether strict...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

Foreclosure Plaintiffs Cannot Rely Solely on Their Status as Parent Corporation

The ownership of the promissory note by a subsidiary corporation of the Plaintiff cannot alone establish standing to foreclose. In HSBC Bank USA, N.A. v. Ryan Kahan, et al., the Court granted the borrowers’ motion for...more

Borrower Who Obtains A Preliminary Injunction Is Entitled To A Fee Award

In Monterossa v. Superior Court (PNC Bank), 2015 DJDAR 6488, the California Court of Appeal for the Third District decided a case of first impression under Code of Civil Procedure Section 2924.12(i) enacted in 2012. The...more

Finally, a SOL Decision Focused On Unjust Enrichment and Inequitable Results

This week, the First District Court of Appeals joined the Fourth District Court of Appeals in holding that Florida’s five-year statute of limitation (SOL), under Fla. Stat. § 95.11(2)(c), did not bar the lender’s second...more

United States District Court: Mortgagor Lacks Standing to Bring RESPA Claim

On August 11, the U.S. District Court for the District of New Hampshire rejected the addition of a potential RESPA claim to plaintiff’s complaint due to lack of standing, and the court dismissed the remaining counts for...more

Florida Court of Appeals Reverses Foreclosure of Reverse Mortgage by Expanding the Definition of “Borrower” to Include Surviving...

Home equity conversion mortgages, commonly known as “reverse mortgages” are popular loan products in Florida. In order to foreclose on a reverse mortgage, the lender generally must allege that all conditions necessary to...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending July 31 & August 7, 2015

Foreclosure: non-borrower owner of real property as tenants-in-common with borrower not required to sign mortgage for borrower to encumber only his interest in the property and non-borrower’s signature on mortgage reflected...more

Burr Commentary: Florida’s District Courts of Appeal Continue to Tighten Standing Requirements for Foreclosures

The UCC was supposed to make enforcing negotiable instruments a simpler, more streamlined process. It has proven anything but in Florida.  Continuing a trend that now stretches back years, mortgage lenders have had an...more

Florida Appellate Court Rules Non-Signing Spouse in Reverse Mortgage is Protected from Foreclosure

On July 15, a three-judge panel of the Florida Third District Court of Appeal issued its opinion in Smith v. Reverse Mortgage Solutions, Inc., 2015 WL 4257632. In 2008, Mr. Smith took out a reverse mortgage on his home where...more

Chorus of Critics Grows Again for Third DCA’s Beauvais Opinion on Statute of Limitations, Rehearing Granted by Third DCA

The opinion of Florida’s Third District Court of Appeal in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) has been a lightning rod for criticism from federal courts in...more

Rhode Island General Assembly Clarifies Intent of Foreclosure Mediation Law

In what can only be perceived as a response to a recent Superior Court decision, the Rhode Island General Assembly amended the applicability of the Foreclosure Mediation Law, R.I. Gen. Laws § 34-27-3.2, for the third time in...more

The CFPB Details Recent Supervisory Activities Regarding Mortgage Servicing

The Consumer Financial Protection Bureau recently published the eighth edition of its Supervisory Highlights, in which the Bureau “shares recent supervisory observations” touching on several legal topics under its...more

Florida Court Rules Borrowers Who Surrender Property in Bankruptcy Can't Later Take it Back

Thanks to several recent United States Bankruptcy Court decisions in Florida, mortgage servicers should now expect borrowers who surrender their real property in bankruptcy to not contest foreclosure later. Since the...more

Points & Authorities - Spring 2015

In this Issue: - Negotiating Strategies for the Successful Sale of Technology Companies - Broker Beware: Are Real Estate Brokers Susceptible to Agent v. Agent Fee Splitting Disputes After Sanowicz v. Bacal? -...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

Nevada Supreme Court Determines That Guarantor Cannot Waive Right to Receive a Notice of Default, but Substantial Compliance With...

Schleining v. Cap One, Inc., 130 Nev. Adv. Op. 36 (May 29, 2014), arises out of a loan to purchase an undeveloped piece of property, which was guaranteed by the principal of the borrower. After the borrower defaulted, the...more

Virginia Supreme Court Allows Damages Claim for Violation of HUD Regulation Requiring Face-to-Face Meeting before Seeking...

The Virginia Supreme Court recently expanded the grounds under which a private borrower can sue a lender for violations of HUD regulations. In Squire v. Virginia Housing Development Authority, a decision issued on April 17,...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

Minnesota Supreme Court Recognizes New Private Right Of Action Against Residential Mortgage Loan Servicers

On April 2, 2014, the Minnesota Supreme Court in Gretsch v. Vantium Capital, Inc. recognized a new private right of action against residential mortgage loan servicers who breach their servicer participation agreements with...more

Arizona Court of Appeals Holds That Certain Residential Developers Are Not Protected By The Anti-Deficiency Statute After...

Nearly three years ago, in M&I Marshall & Isley Bank v. Mueller, the Arizona Court of Appeals held that the Arizona anti-deficiency statute protects a borrower who started, but never completed, construction of a single-family...more

Alabama Federal Court Ruling May Enable Borrowers with Tenants To Challenge Foreclosures

A recent decision from the U.S. District Court for the Northern District of Alabama may provide borrowers who rent portions of their property to tenants with an avenue for challenging a foreclosure. The court's analysis...more

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