Loan Documentation

News & Analysis as of

Supreme Court of Texas; Recent Texas Home Equity Lending Decisions

On May 20, 2016, the Supreme Court of Texas (the "Court") issued its opinions in two cases involving Texas home equity lending – Garofolo v. Ocwen Loan Servicing and Wood v. HSBC Bank USA. The decisions are important for the...more

PF Newsletter: LMA Updates - Quarter One 2016

Legal & Regulatory - BRRD: FCA publishes modification by consent for Article 55 rules - Article 55 of the EU Bank Recovery and Resolution Directive 2014/59 (BRRD) requires European Economic Area (EEA) firms and...more

Do We Want the CFPB to Regulate the Practice of Law?

On April 25, the Consumer Financial Protection Bureau (“CFPB”) entered into a Consent Order with a New Jersey debt collection law firm, Pressler & Pressler, LLP, and two of its managing partners, Sheldon H. Pressler, and...more

The Continued Migration of US Covenant-Lite Structures into the European Leveraged Loan Market

At the start of 2016, global sponsors and their advisers are the US leveraged loan and global bond markets to the European leveraged loan market. Healthy investor appetite over the last several years means attractive terms...more

A Trifecta of Legal Victories for Lenders in Florida

Deutsche Bank Trust Co. v. Beauvais, Case No.: 3D14-575 (Fla 3rd DCA April 13, 2016) - Based on Beauvais, lenders should take a look at their loan documents, paying particular attention to any non-waiver and...more

Dot Your “I”s and Cross your “T”s: When It Comes to Perfecting Your Security Interest

It always starts so easy. Borrower comes in and wants to borrow money. Lenders want some form of collateral to secure (potentially) a loan and the Borrower happily agrees to provide, or pledge, collateral to secure a loan. ...more

Waive Goodbye to Juries

The right to a trial by jury is considered a fundamental right in Connecticut. However, our Supreme Court has held that this right is subject to certain limitations. Indeed, the right to a jury may be specifically waived by...more

FASB’s Current Expected Credit Loss Proposal - Capital Recapture Considerations for Loan Documents

This eUpdate addresses a concern regarding the impact on bank capital of the FASB’s “Proposed Accounting Standards Update, Financial Instruments—Credit Losses (Subtopic 825-15)” (the “Proposal”), should it be adopted. ...more

Middle District of Florida Holds Arbitrability of TCPA Claims Question for Arbitrator

Harrington v. Regions Bank, No. 2:15-cv-522-Ftm-29MRM (M.D. Fla. Jan. 29, 2016) - Before the Court was Defendant’s Motion to Compel Arbitration and Stay Proceedings. Plaintiffs opposed the Motion, contending that their...more

Use of Denton on an Application to Set Aside Default Judgment in the TCC

In Tideland Ltd v Westminster City Council [2015[ EWHC 2710 (TCC) (a judgment dated July 2015 but only just published), the TCC made a decision to set aside default judgment regarding a £7m claim . The judgment provides...more

Recent Letter from CFPB Director Makes Clear that Mortgage Lenders Should Be Promptly Correcting Defects in Loan Documents, Even...

In December 2015, the Mortgage Bankers Association wrote to the Consumer Financial Protection Bureau for clarification regarding the implementation of the recent TILA-RESPA Integrated Disclosure (“TRID”) rule. ...more

NOVEDADES EN LAS SUBASTAS NOTARIALES Y JUDICIALES

Las reformas legislativas de los u´ltimos meses han modificado las normas que rigen la ejecucio´n judicial y extrajudicial de las garanti´as reales. La Ley 15/2015, de 2 de julio, de la Jurisdiccio´n Voluntaria (LJV), ha...more

Stendardo Revisited: The Importance of Specifying Obligations in a Mortgage that Continue in Force after a Foreclosure Judgment

In a recent 2015 case, EMC Mortgage, LLC v. Biddle, 114 A.3d 1057, the Pennsylvania Superior Court applied the holding, Stendardo v. First National Mortgage Association, 991 F.2d 1089 (3d Cir.1993), to a case where a mortgage...more

Bankers, Real Estate Loans, and the Unauthorized Practice of Law: A Refresher

Back in 1968, the Kentucky Bar Association (“KBA”) released Unauthorized Practice of Law Opinion KBA U-6 (“U-6”), opining that bank officers and lending institutions could not draft loan documents such as mortgages, security...more

New Opportunities in Cross-Border Special Situations Lending

Recent changes in cross-border leveraged loan documentation requirements open up new possibilities for both borrowers and lenders. Cross-border leveraged loan documentation has become increasingly permissive with respect...more

CFPB issues 2015 Plain Writing Act Compliance Report

The CFPB has issued its 2015 Plain Writing Act Compliance Report. Under the PWA, federal “executive agencies,” including the CFPB, are required to use plain language in documents that: are necessary for obtaining information...more

Department of Defense Issues Final Rule Expanding Military Lending Act to Credit Cards and Other Consumer Lending Products

On July 21, 2015, the U.S. Department of Defense (“DOD”) announced the final rule amending the Military Lending Act’s (“MLA”) implementing regulations. The changes apply the MLA’s strict lending restrictions to consumer...more

Burr Commentary: Third District Court of Appeal Adds to List of Solutions to Prior Servicer Business Records Issue

In Bank of America, N.A., v. Delgado, et al., 3D13-910 (Fla. 3d DCA May 6, 2015) the Third District Court of Appeal offered some relief to banks and loan servicers still reeling from the effects of Hunter v. Aurora Loan...more

Servicer Foreclosing in Own Name Must Establish Standing and Ratification by Real Party in Interest

In Russell v. Aurora Loan Services, LLC, 40 Fla. L. Weekly D967a (Fla. 2d DCA Apr. 24, 2015), Florida’s Second District Court of Appeal added to the emerging line of case law regarding the proof required to establish standing...more

Use of Prior Servicer’s Records at Trial Depends on Proper Foundation

Mortgage servicing duties are routinely transferred, requiring lenders, servicers and financial institutions to rely on the prior servicer’s business records to prove their cases against borrowers – specifically, to prove the...more

Considerations For Lenders in Workouts & Loan Restructurings

Despite the improvement in the economy since the advent of the “Great Recession,” many businesses nevertheless continue to struggle. Accordingly, lenders are well advised to stay up to date on  “best practices” when facing a...more

Loan Document Interpretation – Wow! Drafter Beware.

A California Court of Appeals recently opined on what appear to be fairly normal yield maintenance provisions. The Borrower defaulted. The bank accelerated the note and later foreclosed. The note provided that the prepayment...more

Not Worth The Paper It's Printed On? Strategies For Dealing With The Fraud Exception To The Parol Evidence Rule

This article explores possible measures that parties to commercial transactions and their attorneys can take to help ensure greater contract certainty when fraud claims of one type or another are not barred by the parol...more

Typo Disastrous for Lender

The United States Court of Appeals for the Seventh Circuit recently issued a harsh opinion for lenders in In re: David L. Duckworth. The case provides a startling example of the drastic consequences of failing to carefully...more

Prepetition Stay Waivers: Which Way Is The Wind Blowing?

In re Triple A & R Inv., Inc., 519 B.R. 581 (Bankr. D. P.R. 2014) – A mortgagee moved for relief from the automatic stay based on the debtor’s prepetition consent to stay relief.  The debtor argued that a prepetition waiver...more

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