Foreclosure Mortgages

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

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

Consumer & Class Action Litigation Newsletter - January 2016

Plaintiff's Attempts to Turn Alleged "Clicking" and "Dead Air" into a TCPA Violation Rejected - Norman v. AllianceOne Receivables Mgmt., Inc., No. 15-1780, 2015 WL 9286778 (7th Cir. Dec. 22, 2015) - The Seventh...more

Can Lenders Foreclose While a Borrower’s Loan Modification Application is Under Review?

A recent decision by the California Court of Appeal held that the practice called “dual tracking” – when a lender forecloses on a property while the borrower’s application for a loan modification is under review – violates...more

Florida’s 5th DCA Joins 2d and 3d, Expressly Adopts Substantial Compliance Standard

The brief era of confusion amongst Florida trial judges regarding the standard for judging compliance with conditions precedent in residential mortgage foreclosures is hopefully coming to a close. Despite a rash of written...more

Florida Court of Appeals Finds Notice of Assignment Not Condition Precedent to Foreclosure Suit

In January, the Florida Second District Court of Appeals—addressing an issue of first impression in the Florida district courts of appeal—held that providing written notice of assignment of a note described in Fla. Stat. §...more

New HOA Decision by Nevada Supreme Court Indicates Continued Litigation to Save First Liens

As the lending community is well aware, the mortgage industry in the state of Nevada remains in flux. Nevada continues to deal with the aftermath of the Nevada Supreme Court’s September 2014 decision in SFR Investments Pool...more

Banking & Financial Services E-Note - January 2016

In Deutsche Bank Nat’l Trust Co. v. Estrella Perez, et al., No. 3D15-58, 2015 WL 8347002 (Fla. 3d DCA Dec. 9, 2015), Florida’s Third District Court of Appeal held that the trial court erred in dismissing a foreclosure case on...more

Rhode Island Supreme Court Rules That Condominium Assessment Liens Could Extinguish First-Priority Mortgages

First mortgage holders in Rhode Island beware: in a 4-1 decision handed down on December 4, 2015, the Rhode Island Supreme Court has ruled that pursuant to the Rhode Island Condominium Act, RIGL § 34-36.1-1.01 et seq., liens...more

Real Property, Financial Services & Title Insurance Update: Week Ending January 22, 2016

REAL PROPERTY UPDATE - Foreclosure/Condition Precedent: providing a notice of the assignment of mortgage loan, as required by section 559.715, Florida Statutes, is not a condition precedent to filing a mortgage...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19481 - JP Morgan Chase Bank, N.A. v. Mendez - After a foreclosure sale auction took place, the defendant property owner appeared for the first time and filed a motion to...more

First Circuit Holds Failure to File a Claim in Probate Proceedings Would Not Bar Foreclosure

The failure of a mortgagee to file a claim in the probate of an estate does not bar the mortgagee from later pursuing a foreclosure, the U. S. Court of Appeals for the First Circuit recently held. The plaintiff inherited a...more

Florida’s Second DCA Reverses Dismissal of Foreclosure in Favor of Borrowers for their Failure to Properly Allege a Condition...

For years, counsel for borrowers have successfully argued that the bank failed to meet conditions precedent required under Section 559.715 of Florida’s Consumer Collection Practices Act (“FCCPA“). Procedurally, this argument...more

Florida Appellate Court Holds that Fla. Stat. 559.715 Notice of Assignment Provision is Not a Condition Precedent to Foreclosure

In a split two-one decision, Florida’s Second District Court of Appeal affirmed the decision reached below and held that Fla. Stat. 559.715’s notice of assignment provision does not create a condition precedent to...more

Florida Appellate Court Rejects Defense of Oral Loan Modification Defense on Statute of Frauds Grounds

In Cowen Loan Servicing, LLC v. Jean Marie Delvar, 4D14-763, 2015 WL 8347300 (Fla. 4th DCA Dec. 9, 2015) the borrower alleged that he had been offered a loan modification and accepted and relied on that offer by making loan...more

Lenders Are Not Necessarily Required to Send a Duplicative Pre-suit Notice in a Timely Filed Successive Mortgage Foreclosure...

In the case of Sill v. JPMorgan Chase Bank National Association, Michael Sill appealed a final judgment of foreclosure entered in favor of JPMorgan Chase Bank (“Chase”), in which he asserted three issues. 4D14-1014, 2016 WL...more

Lack of Reaffirmation Agreement Results in Finding That Bank Violated Discharge Injunction by Enforcing Post-Bankruptcy Loan...

In Venture Bank v. Lapides, 800 F.3d 442 (8th Cir. 2015), the Eighth Circuit found that a bank could not recover from its borrower and, in fact, had violated the post-discharge injunction by relying on change in terms...more

Florida Appellate Courts Reject New Title Holder’s Efforts to Intervene In Foreclosure Where Title Taken After Lis Pendens...

As the foreclosure crisis dies down, lenders are seeing more creative tactics employed to stall foreclosures. One tactic is that during the pendency of the first lien holder’s foreclosure, the borrower will convey title, or...more

Commentary on Elsman: Copy of Note Attached to Complaint May Evidence Standing to Foreclose

With its recently-issued opinion in Elsman v. HSBC Bank USA as Trustee for MLMI 2006-AF1, slip op. 5D14-1753, 41 Fla. L. Weekly D57b, 2015 WL 9491875 (Dec. 31, 2015), the Fifth DCA has added to a growing body of case law...more

Florida’s Fourth DCA Provides Clarity on Proofs Required to Enforce Promissory Note Specially Indorsed to Another

In Bank of New York Mellon Trust Company v. Dennis M. Conley, 4D14-2430 (Fla. 4th DCA Jan. 6, 2016), Florida’s Fourth District Court of Appeal clarified the methods by which a foreclosure plaintiff can seek to enforce a note...more

Creditors Rights Suffers a Major Depression in North Carolina

So, What can a Lender Count on from a Guarantor? - In 1933, the North Carolina legislature in reaction to the Great Depression enacted certain defenses against alleged abuses by lenders exercising remedies under...more

Real Property, Financial Services & Title Insurance Update: Week Ending December 18, 2015

REAL PROPERTY UPDATE - Foreclosure/Standing: because plaintiff was not original lender, plaintiff failed to prove standing to foreclose on mortgage loan where plaintiff failed to submit note with blank or special...more

FTC Announces Settlements with Alleged Mortgage Modification Scammers

On December 15, the FTC announced stipulated court orders banning four individuals from selling debt relief products and services. According to the FTC, the individuals “promised consumers help getting their mortgages...more

The Priority of Interests in Real Estate

In Bank of America, N.A. v. Kipps Colony II Condominium Association, Inc., the Second District Court of Appeal reversed a 2011 final judgment entered in favor of Kipps Colony II Condominium Association, Inc. (“Association”)....more

11th Circuit Holds Consumer Lenders Can’t Include Estimated Expenses In Pre Closing Reinstatement or Payoff Letters; What You...

Consumer borrowed money from Lender. Consumer defaulted, and Lender began to foreclose, including all the usual steps: arranging for property inspection, hiring counsel, etc. After about a year, Consumer sought to reinstate...more

“An Act Clearing Titles to Foreclosed Properties” in Massachusetts … Maybe

On November 25, 2015, Governor Charlie Baker did what his predecessor, Deval Patrick, did not do -- he signed “An Act Clearing Titles to Foreclosed Properties” (the “Act”), which is designed to clear legal title for...more

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