Loans Foreclosure

News & Analysis as of

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

Florida's Fourth DCA Confirms that a Borrower is in the Best Position to Know Their Own Financial Information

The Fourth District Court of Appeal recently affirmed its prior decision in Vidal v. Liquidation Properties, Inc., 104 So. 3d 1274 (4th DCA 2013). Wells Fargo Bank, N.A. v. Hilary A. Williamson, Case No. 4D15-285, 2016 WL...more

Loan Enforcement and Creditors’ Rights

At times, lenders lose the promissory notes on defaulted loans. Lost notes are problematic because, in order to have standing to foreclose, a lender may be required in many states, including in New York, to possess the...more

Fifth Circuit Court of Appeals Clarifies Abandonment of Loan Acceleration

The Fifth Circuit Court of Appeals recently clarified how mortgage lenders and servicers can abandon a loan acceleration under Texas law. Although Texas generally requires foreclosure actions to be brought no more than four...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

Guarantors Can Use Anti-Deficiency Statute in North Carolina

The North Carolina Supreme Court recently handed down the final word in a dispute over whether guarantors get the benefit of the state’s anti-deficiency statute after the lender bids on and buys the real property at a...more

Real Property, Financial Services & Title Insurance Update: Week Ending October 23, 2015

REAL PROPERTY UPDATE - Foreclosure/Documentary Stamp Tax: deferred interest on a “pick-a-payment” mortgage did not amount to future advance, which would have required payment of documentary stamp tax - Steinberg v. Wells...more

Mortgage Foreclosure Case Law Development: Substantial Compliance is the Legal Standard for Paragraph 22 Cases in Florida

On July 29, 2015, Florida’s Second District Court of Appeal held that substantial compliance, rather than strict compliance, is the legal standard for evaluating a foreclosing plaintiff’s compliance with contractual...more

Chorus of Critics Grows Again for Third DCA’s Beauvais Opinion on Statute of Limitations, Rehearing Granted by Third DCA

The opinion of Florida’s Third District Court of Appeal in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) has been a lightning rod for criticism from federal courts in...more

Appellate Court Notes

Appellate Court Advance Release Opinions - AC36506 - Sidorova v. East Lyme Board of Education - Due to budget cuts, the Board of Education laid off the plaintiff who was a tenured French teacher. She sued for...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

Borrowers’ Counsel Sanctioned for Frivolous Lawsuit Against Lender Who Attempted to Resolve Foreclosure Action

An Ohio appellate court has affirmed an order of sanctions against counsel for borrowers who filed a frivolous lawsuit against the lender alleging fraud, breach of contract and estoppel in connection with failed attempts to...more

Rules Against Title Insurer on Date of Loss Issue

In the recent decision in First American Title Insurance Co. v. Johnson Bank, 1 CA-CV 14-0190, 2015 WL 3965740 filed June 30, 2015, the Arizona Court of Appeals held that the date for calculating a loss under a lender’s title...more

Nevada Amends Law Regarding Deficiency Judgment Calculation

By amending a statute that limits deficiency judgment amounts in certain cases, Nevada lawmakers have attempted to restore balance as the law applies to commercial properties. The amendments follow a recent wave of litigation...more

Verify Payment Records When Buying A Mortgage

If you purchase a mortgage, how can you prove the amount due in a subsequent foreclosure lawsuit? That is the question that is raised in a series of recent Florida court cases. Proving the amount due at trial is sometimes...more

IRS Ruling Addresses LLC Eligibility for Cancellation of Debt Exception

In new CCA 201525010, the IRS addressed the issue of whether a general “exculpatory” debt of an LLC is recourse or non-recourse for purposes of classifying debt-relief as potential cancellation of debt (COD) income. Recourse...more

A Look at the Friendly Foreclosure Option

When a debtor defaults on a loan secured by personal property, the secured lender has several options for repayment. One option is to sell the collateral securing the debt pursuant to Article 9 of the Uniform Commercial Code...more

Appellate Court Notes

SC19216 - Sikorsky Financial Credit Union, Inc. v. Butts - Finally some clarity in rules pertaining to the award of post-judgment interest. Here the (consumer) loan agreement provided that interest would accrue at 9%...more

Financial Institutions and Creditors’ Rights: Ninth Circuit Finds SCRA Liability Based on Prior Servicer’s Actions

The Servicemembers Civil Relief Act (“SCRA”) was signed into law in 2003, greatly expanding prior legislation in order to better assist servicemembers in avoiding default and foreclosure while they are on active duty. The...more

New California Court of Appeal Decision Reaffirms General Rule that Residential Lenders Owe no Duty to Borrowers, Including in the...

In a recent decision, Lueras v. BAC Home Loans Servicing, LP, 2013 Cal. App. LEXIS 886, the California Court of Appeal returned to the general rule that, absent unique circumstances giving rise to a duty of care, lenders do...more

The Demise of Deficiency Judgments in Residential Loans

Among the many changes in the financial services industry, two important events occurred this year that effectively signaled the extinction of deficiency judgments in loans secured by residential property. ...more

Showdown in the Richmond: The City of Richmond Threatens Eminent Domain on Underwater Loans

BREAKING NEWS: In a contentious 4-3 decision and amid more than 300 community members on both sides of the issue, the City Council for the City of Richmond voted to continue pursuing its eminent domain plan in the early...more

Loan Servicer May Verify Foreclosure Complaint

In this residential foreclosure case, the trial court dismissed an amended complaint whose verification was signed by a person on behalf of “Wells Fargo Bank, N.A. as contractual servicer for US Bank National Association.” ...more

A Non-Purchase Money Second Deed of Trust is Not Protected by Arizona’s Anti-deficiency Statute

Arizona anti-deficiency laws do not prohibit a non-purchase money lender from suing on its note after foreclosure by a senior lender. In Wells Fargo Bank, N.A. v. Brewer, No. 1CA-CV 12-0383 (Ariz. Ct. App. May 21, 2013...more

Eighth Circuit Reaffirms that Notice Alone is Insufficient to Effectuate TILA Rescission

The United States Court of Appeals for the Eighth Circuit affirmed a lower court’s opinion rejecting plaintiffs’ attempt to rescind a loan agreement after the loan had already been foreclosed, ruling that the foreclosure...more

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