Foreclosure Deed of Trust

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

Leave the “Tow Truck Guy” Alone: The Ninth Circuit Rules Foreclosure of a Deed of Trust Is Not Debt Collection

The Ninth Circuit recently clarified when a trustee of a deed of trust acts as a debt collector under the Fair Debt Collection Practices Act (“FDCPA”). In a break from other courts of appeal, the Ninth Circuit held that when...more

Ninth Circuit Holds Non-Judicial Foreclosure of Deed of Trust Is Not Debt Collection under the FDCPA

Action Item: The United States Court of Appeals for the Ninth Circuit affirms that activities incident to the non-judicial foreclosure of a deed of trust under California state law is not “debt collection” within the scope of...more

District Court Holds That a Late Assignment to a Securitized Trust Is Voidable, Not Void, and Does Not Permit a Claim for Wrongful...

The U.S. District Court for the Northern District of California has issued an opinion in Spangler v. Selene Finance, LP, rejecting a borrower’s allegation that an assignment of a deed of trust recorded after a foreclosure...more

N.C. Court of Appeals: Absent Notice to the Federal Government, Foreclosure for Unpaid Local Taxes Won't Extinguish Federal Tax...

North Carolina is a "pure race" state, for real estate title purposes. That is, “first to record an interest in land holds an interest superior to all other purchases for value, regardless of actual or constructive notice as...more

Ninth Circuit Court of Appeals Rules Nevada HOA Foreclosure Notice Provision Unconstitutional

The U.S. Court of Appeals for the Ninth Circuit, in Bourne Valley Court Trust v. Wells Fargo, recently handed down a significant decision providing that a Nevada foreclosure law was unconstitutional because the law did not...more

Sixth Circuit Nixes TILA Rescission Claim

Two homeowners tried to rescind their home mortgage loan when they weren’t notified that the deed of trust had been assigned. Although this argument may have been a creative way to stave off a foreclosure, it was not...more

North Carolina Court of Appeals Affirms Right of Former Trustee to Represent Lender in Foreclosure Under Deed of Trust

Recently, the North Carolina Court of Appeals issued an opinion addressing whether a conflict of interest exists when a trustee under a deed of trust initiates a foreclosure proceeding and later represents the lender in that...more

The Ninth Circuit Weighs In: NRS 116 is Facially Unconstitutional

The tide may finally be turning in Nevada. Since the Nevada Supreme Court dealt a devastating blow to the whole of the financial services industry in September 2014 by holding that an HOA could foreclose on its super-priority...more

Washington Supreme Court Closes the Door on Changing the Locks

In Jordan v. Nationstar Mortgage, LLC, the Washington Supreme Court issued a stern warning to lenders seeking to change the locks on foreclosure properties. Given the significant potential liability exposure created by the...more

Nevada Supreme Court Accepts Certified Question in HOA Lien Litigation Case – Should the SFR Decision Apply Retroactively?

We previously reported on the Nevada Supreme Court’s decision in SFR Investments Pool 1, LLC. v. U.S. Bank, N.A., holding that a homeowners association (HOA) lien is a true super-priority lien that upon foreclosure...more

Nevada Supreme Court Clarifies Limits to its SFR Investments Decision

In September 2014, the Nevada Supreme Court, in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., held that a portion of a homeowners’ association (HOA) lien for delinquent assessments has true super-priority status over a...more

Reading the Nevada Tea Leaves after Shadow Wood

In the wake of SFR Investments Pool 1, LLC v. U.S. Bank, N.A., in which the Nevada Supreme Court held that an HOA foreclosure sale may extinguish a first position deed of trust, lenders have advanced numerous arguments as to...more

Nevada Supreme Court Opinion Impacts HOA Foreclosure Litigation

The Nevada Supreme Court held in SFR Investments Pool 1, LLC. v. U.S. Bank, N.A. that a non-judicial foreclosure by an HOA generally extinguishes a first mortgage interest, however, it left several unresolved issues. For...more

Nevada Federal District Court Rules Lien Statute Unconstitutional

We have reported before on a decision last fall from Nevada’s Supreme Court holding that a homeowners association (HOA) lien is a true super-priority lien that, if foreclosed upon, extinguishes a first deed of trust. Lenders...more

Fifth Circuit Court of Appeals Upholds MERS’ Authority to Assign Mortgages

The Fifth Circuit Court of Appeals recently handed Mortgage Electronic Registration Systems, Inc. (MERS) another victory against challenges to MERS’ authority to assign a mortgage. In Ferguson v. Bank of New York Mellon, the...more

Partial Subordination Agreement not Involving or Affecting Mechanics Lien Claimant Priority is Enforceable in Nevada

When visible construction begins, Nevada law says mechanic’s liens attach to the construction site. A construction lender wants to ensure that its deed of trust securing the construction loan has first priority to the...more

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

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

Playing Hot Potato: Indemnity Strikes Again

Indemnity can be like playing hot potato (for those of you closer to the Minecraft generation, in the game of hot potato, a metaphoric “hot potato” is tossed between (ahem amongst) players while music is playing, and when the...more

Nevada Supreme Court Reverses Course on MERS

The Nevada Supreme Court recently reversed – or at least clarified – the impact of MERS in Nevada under the approach set forth in the Restatement (Third) of Property: Mortgages. The Supreme Court had held in 2012 that at the...more

Is a “Receiver’s Sale” a Foreclosure Sale?

Earlier this year, the Nevada Supreme Court held in U.S. Bank Nat’l Assn. v. Palmilla Dev. Co. that under Nevada law, a “receiver’s sale” of real property securing a loan qualifies as a judicial foreclosure sale, and...more

How Nevada SB 306 and Court Rulings Have Changed the Foreclosure Landscape - Counsel's Corner with Jon Patterson

What changes were brought about to the HOA foreclosure sale landscape by the passage of SB 306 in Nevada? SB 306 contained a number of important revisions to Nevada’s super-priority lien statute that will provide...more

NC Court of Appeals Weighs in on Multiple Creditor’s Rights Issues

The NC Court of Appeals has issued a number of opinions this year involving lender foreclosure or collection efforts. Not all of the holdings have been monumental, but there is a common thread of useful principles,...more

Nevada HOA Super-Priority Lien Statute Preempted by Federal Law, Holds U.S. District Court

On Monday, the U.S. District Court for Nevada issued significant decisions in three cases, holding that a foreclosure on a Nevada HOA’s super-priority lien could not extinguish a deed of trust securing a debt owned by a...more

Notice Me: The New Notice Requirements for HOA Lien Foreclosures in Nevada

In a previous blog post, we reported on Senate Bill 306, passed by Nevada Governor Brian Sandoval on May 28, 2015. The legislation redresses the substantial harm caused by SFR Investments Pool 1, LLC v. U.S. Bank, N.A. In SFR...more

Foreclosed Property: Related Rights May Be Tricky

Cooper v. WPD Polar Ridge, LLC (In re Poplar Ridge, LLC), 526 B.R. 147 (W.D. N.C. 2015) – After a developer defaulted, the trustee under a deed of trust held a pre-petition foreclosure sale.  The issue was whether the...more

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