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Foreclosure › Lien Priority

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 -
Patton Sullivan Brodehl LLP

Loan Modifications and Losing Lien Priority

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Modifying a loan can sometimes cause a loss of lien priority. It all depends on the facts underlying the modification, and even the original loan....more

Fox Rothschild LLP

Secured Creditors’ State Court Rights Affected By Proof Of Claim Choices

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Secured creditors have many choices when it comes to how to file a proof of claim in bankruptcies. Those choices should be weighed carefully, however, because certain choices can have important unexpected consequences that...more

Patton Sullivan Brodehl LLP

How a Junior Lien Can Survive Judicial Foreclosure

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Oscar Wilde is quoted for saying—“To expect the unexpected shows a thoroughly modern intellect.” This advice certainly holds true for a senior deed of trust lienholder contemplating foreclosure on real property security. ...more

Patton Sullivan Brodehl LLP

A Potent Superpower: Receiver “Super-Priority” Liens

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In the twenty-first century, superheroes are all the rage. Alive and well are never-ending debates about the superiority of DC characters versus Marvel characters, or heroes that are born super, such as Superman, versus those...more

Patton Sullivan Brodehl LLP

Cotenant Owner vs. Junior Creditor — Battle for Sale Proceeds from Senior Creditor Foreclosure

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After a foreclosure sale by a senior creditor, California’s Civil Code section 2924k governs how the sale proceeds are applied in the following order of priority...more

Carlton Fields

Real Property, Financial Services, & Title Insurance Update: Week Ending July 31 , 2020

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Real Property Update - Foreclosure / Surviving Lien: Lender’s lien on mobile home survived foreclosure sale of property where mobile home was located; mobile home remained personal property outside scope of foreclosure –...more

Rosenberg Martin Greenberg LLP

Rock, Paper, Scissors: Virginia Supreme Court Adopts Partial Subordination Rule to Interpret Subordination Agreements

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Everyone is familiar with the “Rock, Paper, Scissors” method of resolving disputes where scissors cut paper, paper covers rock, and rock breaks scissors. In Futuri Real Estate, Inc. v. Atlantic Trustee Services, the Virginia...more

Snell & Wilmer

If You Purchase a House at an HOA Lien Foreclosure, Are You Entitled to Excess Sale Proceeds?

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That pesky excess sale proceeds statute, A.R.S. § 33-727, is making waves again. We previously blogged about this statute... In the prior post, we explained that excess sale proceeds (i.e., a foreclosure sale price greater...more

Rosenberg Martin Greenberg LLP

Maryland Bankruptcy Court Determines Priority of Homeowner Association Fees versus Mortgage Lender's Deed of Trust

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In 2017, the Maryland Court of Appeals in the case of Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, 455 Md. 313 (2017) (“Saddlebrook”) held that a provision in a recorded declaration by a utility that...more

Bradley Arant Boult Cummings LLP

Nevada Supreme Court Rules Bank Tender Defeats HOA Superpriority Lien

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As lenders and servicers continue to litigate in Nevada’s state and federal courts about the effect of homeowner associations’ (HOAs) foreclosure sales, some questions have proven particularly sticky. What happens when a...more

Womble Bond Dickinson

Void But Valid: Good-Faith Purchaser for Value Keeps Title Despite Procedural Defects in Foreclosure Sale

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A divided panel of the North Carolina Court of Appeals holds that a good-faith purchaser for value at a foreclosure sale obtains a valid deed regardless of the amount paid, even where the foreclosure itself is void due to...more

Bradley Arant Boult Cummings LLP

Is a Foreclosure Crisis Looming in Our Nation’s Capital?

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The District of Columbia Court of Appeals recently sent a new set of shockwaves through the mortgage industry in the nation’s capital when it released its decision in Andrea Liu v. U.S. Bank National Association. Having held...more

Amundsen Davis LLC

Equitable Subrogation In Real Estate

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The doctrine of conventional subrogation in real estate is familiar to most lenders: a new lender that pays the mortgage of a prior one steps into the shoes of – or is subrogated to – the prior lender’s security interest in...more

Bradley Arant Boult Cummings LLP

Nevada Supreme Court Rules HOA Super-Priority Liens Can Be Revived after Release

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Homeowners’ associations have a more robust tool for forcing mortgage lenders to pay delinquent assessments following a September 14 decision by the Nevada Supreme Court. Nevada HOAs have enjoyed a super-priority lien under...more

Snell & Wilmer

Green Energy Can Complicate Real Estate Foreclosures

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A quick drive through almost any newer residential community in the Southwest will show that a lot of residents are embracing “Green Energy” or renewable energy by placing solar panels on their properties. While most people...more

Womble Bond Dickinson

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

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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

Dechert LLP

FHA Issues Final Guidelines on PACE Assessments

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The U.S. Federal Housing Administration (FHA) issued final guidance in the form of Mortgagee Letter 2016-11 regarding the subordination of Property Assessed Clean Energy (PACE) assessments on Tuesday, July 19, 2016. As...more

Snell & Wilmer

California’s One-Action Rule May Apply to Federal Lenders

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California’s one-action rule provides that “[t]here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein . . . .”...more

Bradley Arant Boult Cummings LLP

Mortgage Industry Scores Big Nevada Supreme Court Win in Continued Battle over HOA Super-Priority Liens

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The mortgage lending community was dealt a serious blow in September 2014, when the Nevada Supreme Court held that an HOA’s foreclosure of its nominal super-priority lien could extinguish a first lien interest in SFR...more

Bradley Arant Boult Cummings LLP

Tennessee Amends Condominium Lien Law to Clarify Lack of Superpriority Right

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On April 19, 2016, Tennessee Governor Bill Haslam signed HB 2401, amending Tennessee’s condominium statue to make it clear that condominium associations cannot acquire a “superpriority” lien that trumps a first security...more

Snell & Wilmer

Nevada Supreme Court Holds that Foreclosure Of HOA Lien Extinguishes Equal Priority HOA Lien.

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In Nevada’s master-planned communities it is common for one home to be in multiple homeowners’ associations. In such cases there is generally a master association for the master-planned community and then sub-associations for...more

Jaburg Wilk

Equitable Subrogation and the Replacement Doctrine

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All real estate professionals and investors are familiar with the concept of the priority of liens. As a general rule, when there are multiple liens recorded against a property, the one that is recorded first is “superior”...more

Snell & Wilmer

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

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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

Bradley Arant Boult Cummings LLP

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

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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

Bradley Arant Boult Cummings LLP

Nevada HOA Foreclosures Cannot Extinguish Deeds of Trust Held by Fannie Mae, Holds U.S. District Court

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Yesterday, the U.S. District Court for the District of Nevada issued an important ruling concerning the litigation over whether homeowners’ association foreclosures under Nevada’s super-priority lien statute (NRS 116.3116)...more

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