Foreclosure

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

Appellate Court Notes

?AC35507 - State v. Wright - ?AC35289, AC36395 - Southport Congregational Church-United Church of Christ v. Hadley - The doctrine of equitable conversion did not apply when the decedent contracted to sell real...more

“Totality of the Circumstances” Standard Used to Sanction Mortgagee for Lack of “Good Faith” Negotiation in Foreclosure Matter

New York’s Appellate Division, Second Department, recently ruled that a mortgagee’s conduct in evaluating a borrower’s loan modification application should be judged using the “totality of the circumstances” standard to...more

Yet Another New Case On Standing to Foreclose

In July, the 2d DCA overturned a bank’s summary judgment on the grounds that the bank failed to rebut the defense of lack of standing. The frequency and similarity of these cases makes me think of the movie Goundhog Day!...more

Battling on the Front Lines of Foreclosures: What must a Lender consider and do when foreclosing on a property owned by a...

A complicated, but sometimes overlooked, issue facing foreclosing lenders is properly handling and defending against claims that a servicemember-owner is entitled to protections from foreclosure based on his or her status as...more

Fannie Mae Authorizes Servicers To Waive Deficiency Judgment Rights, Announces Other Servicing Policy Updates

On September 8, Fannie Mae advised in Servicing Guide Announcement SVC-2014-16 that servicers now have discretion to waive Fannie Mae’s deficiency judgment rights if doing so will help resolve foreclosure delays based upon...more

What Exactly Is A Subordination, Non-Disturbance And Attornment Agreement, And Why Do I Need One?

While most commercial leases contain a requirement that the tenant will execute a “Subordination, Non-Disturbance and Attornment Agreement,” commonly referred to a an “SNDA,” a majority of tenants who have signed such leases,...more

Real Property, Financial Services & Title Insurance Update: September 2014 #1

REAL PROPERTY UPDATE - - Foreclosure/Standing: to establish a prima facie case for mortgage foreclosure, successor mortgagor must introduce evidence it was in possession of original note with blank endorsement at time...more

California Retroactively Extends Mortgage Debt Forgiveness Tax Relief, But Only For 2013

At the end of July, the California state legislature enacted an extension of its modified conformity to federal mortgage debt forgiveness tax relief for 1 year, through 2013. The law allows exclusion of income realized as a...more

Illinois Adds Omitted Subordinate Interest Provisions to Mortgage Foreclosure Law

On August 26, Illinois amended its Code of Civil Procedure by adding Section 15-1603.5 to address situations where a foreclosure sale occurred, but a junior lienholder was not named in the foreclosure complaint. Specifically,...more

Real Property, Financial Services & Title Insurance Update: August 2014 #2

former marital home entitled to homestead exemption under article X, section 4 of Florida Constitution because (1) decedent and former wife still owned home as tenants in common at time of his death; (2) decedent’s sons, whom...more

Mortgage Holder’s Petition to Set Aside Judicial Tax Sale Rejected

A panel of the Commonwealth Court held that the trial court properly denied a mortgage holder’s petition to set aside the judicial tax sale of a property in Lackawanna County due to alleged improper service of notice and...more

Arizona Supreme Court to Contractor: Sorry But Equitable Subrogation of a Bank’s Later Deed of Trust Trumps Earlier Mechanics’...

The smoke has finally cleared in a hard and long-fought battle between a bank and contractor both claiming priority to foreclose millions of dollars on a Phoenix condominium project. The project, well-known as Summit at...more

Even a Tax Authority May Sometimes Have to Pay

In Clinton County Treasurer v. Wolinsky, 511 B.R. 34 (N.D.N.Y. 2014), a Chapter 7 trustee sought to avoid a property tax foreclosure as a fraudulent transfer and then to recover damages from the foreclosing county. The...more

Maine Supreme Court Addresses MERS Assignments and Payoff Amounts During Cure Periods

The Maine Supreme Court has been active in the last few months – issuing several decisions that will likely impact foreclosure actions in that state. The decisions covered a full range of foreclosure issues, from whether a...more

Illinois Case Law and Legislation Update

Effective January 1, 2015, Section 18.4 of the ICPA was amended to permit a condominium Board of Directors to adopt and amend its rules and regulations to allow for electronic delivery of notices and other communications...more

Mortgagees Face Increased Penalties for Failure to Remedy Municipal Violations on New Jersey Properties in Foreclosure

Action items: As a result of the recent changes in New Jersey law, mortgagees and servicers should review their practices and procedures to ensure timely response to notices of municipal code violations on abandoned or vacant...more

A New Case On Standing to Foreclose

Legal standing to foreclose a note and mortgage continues to be an issue that frustrates plaintiffs and delights defense counsel. Florida courts have consistently held that standing must exist when the lawsuit is filed and...more

Real Property, Financial Services & Title Insurance Update: August 2014 #1

Trial court erred in granting lender’s motion to vacate an order dismissing its foreclosure complaint for lack of prosecution without first giving borrower an opportunity to be heard at an evidentiary hearing. – Arcila v. BAC...more

Mortgage Enforcement: Dot Those “i”s and Cross Those “t”s – Or Else

A chapter 13 debtor objected to the portion of a mortgagee’s claim consisting of expenses related to foreclosure of its mortgage. She argued that since the mortgagee failed to comply with notice requirements under the...more

Feds, States Sweep Country for Mortgage Relief Scams

In an enforcement sweep dubbed “Operation Mis-Modification,” the Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CFPB), and 15 state Attorneys General have targeted “foreclosure relief scammers that have...more

Property Tax Foreclosure: Tax Authority May Have to Pay for Equity in Property

A chapter 7 trustee sought to avoid a property tax foreclosure as a fraudulent transfer and then to recover damages from the foreclosing county. The bankruptcy court agreed that the transfer was a fraudulent conveyance, but...more

Minnesota Supreme Court Rejects Twombly/Iqbal Pleading Standard

On August 6, the Minnesota Supreme Court held in a foreclosure-related case that the plausibility standard announced in Twombly and Iqbal does not apply to civil pleadings in Minnesota state court. Walsh v. U.S. Bank, N.A.,...more

Bankruptcy Beat: Connecticut District Court Suggests Automatic Stay May Apply To Non-debtor Junior Lienholders In Foreclosure...

On July 22, 2014, the Connecticut District Court issued an opinion, Eastern Savings Bank FSB v. St. Germain, et al, 2014 WL 3687740 (D. Conn. 2014), which could impact the applicability of the automatic stay of 11 U.S.C....more

Claimant Must Exhaust Administrative Remedies Provided For In The Financial Institutions Reform, Recovery, and Enforcement Act of...

After defaulting on his Hawaii home mortgage with Washington Mutual Bank ("Wamu") and facing nonjudicial foreclosure, Todd Rundgren (Hello It's Me) and his wife, Michelle (collectively the "Rundgrens"), sued Wamu and JP...more

Implied Restrictive Covenant Prevents Conversion of Golf Course to Residential Lots

A federal court of appeals held that a golf course was encumbered by an implied restrictive covenant, preventing the foreclosing lender from selling the golf course for residential development. The U.S. Court of Appeals for...more

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