Liens Mortgages

News & Analysis as of

New York Court of Appeals Rules on Lien Priority in Consolidated Mortgages Case

On May 10, the New York Court of Appeals affirmed the lower court’s decision that consolidated mortgages qualify as the first mortgage of record under Real Property Law article 9-B (the Condominium Act) when the mortgages...more

Nevada District Judge Voids HOA Foreclosure Following Evidence that HOA Hindered Bank’s Efforts to Preserve its Mortgage

Nevada Eighth Judicial District Judge Elizabeth Gonzales has voided a 2014 homeowners association (HOA) foreclosure sale and ruled that a first mortgage held by Bank of America, N.A. was unaffected by the sale. The April 20,...more

Construction Financing and Mechanics’ Liens in Connecticut

Bankers and other professionals who have worked on construction loans in states other than Connecticut will know how much of a pain it can be to make construction loan advances. You usually need to perform a title update and...more

Importance of the Title Commitment

When you are purchasing a home (or any type of property) the last thing you are thinking about (unless you are a real estate attorney) is the title commitment. The focus is generally on the big ticket items such as purchase...more

Condominium Association Liens Have "Super-Priority" Over First Mortgage Liens, Rhode Island Supreme Court Holds

The Supreme Court of Rhode Island, in a 4-1 decision, recently joined a growing list of states that allow a homeowners or condominium association lien for delinquent assessments to take priority over, and potentially wipe...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

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

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

Does Your Custody Agreement Comply?

All custody agreements will need to comply with new content requirements from 1 November 2015 as set out by the Australian Securities & Investments Commission (ASIC) in Regulatory Guide 133: Managed investments and custodial...more

Constitutional Clarification for Nevada HOA Super-Priority Foreclosures

Since the Nevada Supreme Court’s infamous decision in SFR Investments Pool 1, LLC v. U.S. Bank, N.A. in September 2014, the mortgage community has continued to fight to save senior deeds of trust from extinguishment due to an...more

Broker Commissions: Technical Requirements Trump Equitable Considerations

In re Oak Knoll Assocs., L.P., 525 B.R. 175 (Bankr. D. Me. 2015) – A real estate broker sought allowance of an administrative expense claim for his commission in connection with a sale of real estate.  The debtor and...more

Settlement Proceeds: When Does Cash Become Quasi Real Estate?

Farmer v. Citizens Nat’l Bank of Athens (In re Davis), 528 B.R. 757 (Bankr. E.D. Tenn. 2015) – A chapter 7 trustee sought a court determination that the trustee had a superior claim to settlement proceeds arising from...more

Courts, States Continue to Wrestle with Homeowners Association Assessment Liens

The circumstances under which a condominium or homeowners association (HOA) lien for unpaid assessments may wipe out a lender’s mortgage lien continues to evolve across the country. As noted in our previous alerts regarding...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

Mistaken Date Reference in Security Agreement Costs Bank its Lien Priority

It’s a common occurrence – a mortgagor or grantor signs the security instrument a day or two in advance of the loan, or perhaps a note is re-signed a couple of days after closing to correct an error in the original note....more

Orrick's Financial Industry Week in Review

Fair and Effective Markets Review Publishes Final Report - On June 10, 2015, the Fair and Effective Markets Review (FEMR), established by the Chancellor in June 2014 to conduct a review of fixed income, currency and...more

Nevada Senate Passes Bill Affecting Super-Priority Liens in Foreclosure

The Nevada Legislature recently passed a bill intended, in part, to address issues resulting from the Nevada Supreme Court’s decision that a homeowners association lien is a true super-priority lien that, if foreclosed,...more

Supreme Court Reaffirms a Chapter 7 Debtor's Inability to Strip a Lien Against Real Property

Reaffirming its 1992 decision in Dewsnup v. Timm, on June 1, 2015, the U.S. Supreme Court in Bank of America v. Caulkett, No. 13-1421, once again ruled that a chapter 7 debtor may not void a junior lien under Bankruptcy Code...more

Real Property 101 for Community Bankers in the Spilman Footprint

What is the difference between a Deed of Trust and a Mortgage? The terms “Deed of Trust” and “mortgage” are often used by people interchangeably. Both serve to give the lender a lien as collateral for a loan but, these...more

Guide To Doing Business in Australia: Personal Property Securities Law (Updated)

PERSONAL PROPERTY SECURITIES LAW - Personal property securities law in Australia was recently overhauled with the introduction of the Personal Property Securities Act 2009 (Cth) (PPSA). The PPSA applies across all...more

Chapter 7 Debtors Cannot Strip Off Junior Liens on Underwater Home Loans, United States Supreme Court Rules

Yesterday, the United States Supreme Court ruled that debtors in Chapter 7 bankruptcy cases cannot “strip off,” or completely void, junior mortgages that—based on the value of the property and the amount of claims secured by...more

Calculating Title Insurance Claims: Reduction in Value vs. Insured Claim

After a mortgagor filed bankruptcy, a lender brought claims under a ship mortgage insurance title policy. [See, First Am. Bank v. First Am. Transp. Title Ins. Co., 759 F.3d 427 (5th Cir. 2014).] The lender appealed the...more

Should Underwater Junior Liens Survive Bankruptcy?

On March 24th, the Supreme Court heard oral argument on the consolidated appeals of two decisions from the Eleventh Circuit Court of Appeals, Bank of America v. Caulkett and Bank of America v. Toledo-Cardona. The appeals...more

Equitable Subordination Allowed Even Though First Lienholder Had Constructive Knowledge of Subordinated Mortgage at Closing, S.C....

The Supreme Court of South Carolina recently held that a lienholder’s ability to obtain equitable subordination of a prior mortgage was not precluded by its agent’s knowledge that the prior mortgage had not been satisfied. In...more

Developer May Not Extinguish Contractor’s Liens by Foreclosing on Its Own Mortgage, Florida Court Holds

A Florida appellate court recently rejected a real estate developer’s creative effort to shed its property of contractor’s liens. The court applied the venerable principal of mortgage law that a borrower may not extinguish...more

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