News & Analysis as of

Non-Judicial Foreclosures

Recording a Trustee’s Deed is Privileged Under CA Civil Code Section 47

California law is pretty clear that the recordation of a notice of default and notice of sale — two key documents that are a prerequisite to a nonjudicial foreclosure sale (aka trustee’s sale) — are privileged and cannot form...more

Federal Tax Liens In Foreclosure Proceedings

by Ward and Smith, P.A. on

Henkel v. Triangle Homes is a North Carolina Court of Appeals case with dueling tax foreclosure proceedings involving the same property. One foreclosure proceeding was for unpaid municipal taxes and the other for unpaid...more

Double Trouble—Is Black Sky Capital Blue Skies for Lenders?

by Perkins Coie on

An annoying question for lenders is whether or not a lender can enforce two loans to the same borrower and secured by the same property. The nagging issue is usually raised when a lender makes (1) a first loan and an...more

What's So Special About a Foreclosure Special Proceeding?

by Ward and Smith, P.A. on

The North Carolina Supreme Court recently clarified that the North Carolina Rules of Civil Procedure and doctrines of res judicata and collateral estoppel do not apply to a non-judicial foreclosure special proceeding. This...more

Foreclosures in North Carolina - Say Goodbye to Discovery and Res Judicata

Late December is a time of family, mistletoe and “presents under the tree.” It’s not usually the time when minds switch to the specifics of foreclosure procedure. Yet just before they retired for their Christmas break, the...more

Ninth Circuit Denies Motion to Dismiss and Motion to Stay Publication of Decision Holding Nevada HOA Super-Priority Lien Statute...

As we have previously covered in a series of blog posts, the Nevada Supreme Court held in September 2014 that Nevada Revised Statute chapter 116 allows homeowners’ associations (HOAs) to non-judicially foreclose on homeowners...more

Difficulties Foreclosing in Massachusetts

by Murtha Cullina on

Foreclosing a mortgage in Massachusetts can be a pain. Among the many, very technical requirements, a foreclosing mortgagee must be able to prove that it is the holder, or the authorized representative of the holder, of the...more

Alaska Supreme Court Extends FDCPA Coverage to Trustees Involved in Non-Judicial Foreclosures

In Alaska Trustee, LLC and Stephen Routh v. Brett Ambridge and Josephine Ambridge, the Alaska Supreme Court considered whether Alaska Trustee and Routh were “debt collectors” subject to liability under the Federal Debt...more

Yvanova v. New Century Mortgage Corp.: Perceived Victories And Defeats On All Sides

by Stoel Rives LLP on

In the area of consumer lending litigation, plaintiffs’ and defense attorneys alike have waited with bated breath for the California Supreme Court to issue its decision in Yvanova v. New Century Mortgage Corp. The decision...more

Judicial Foreclosure: Things That Can Go Sideways During The Redemption Period

Judicial foreclosure is uncommon in California. In most cases, lenders will pursue nonjudicial foreclosure (aka “trustee’s sales”), which are simple, quick, and efficient. But when a lender is dead-set on recovering a...more

Counsel’s Corner: Does the CFPB Really Understand Non-Judicial Foreclosures?

by Morrison & Foerster LLP on

What is the CFPB's stake in this issue? - The FDCPA is a very powerful statute. It touches a lot of areas of consumer protection. The CFPB is really just exploring it and flexing its muscles in that area. It's working on...more

HOA Super Priority Legal Battles Continue in the Silver State: What Senate Bill 306 Means for Nevada HOAs, Lenders and Homeowners

by Snell & Wilmer on

In 1991, the Nevada Legislature enacted the Uniform Common-Interest Ownership Act (UCIOA) which had been promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) (the Statute). This law provides...more

H.B. 2067: A Statutory Method for Unilateral Rescission

by McGuireWoods LLP on

In a move greatly benefiting lienholders and loan servicers, Texas Governor Greg Abbott recently signed H.B. 2067, amending the Texas Civil Practice and Remedies Code to allow for the unilateral rescission of the acceleration...more

It Just Got Harder to Get a Deficiency Judgment in North Carolina

Ya’ll. (I’m in the South so it’s ok to say “ya’ll” even in a legal update). It shouldn’t be that hard to get a deficiency judgment in North Carolina. To start with, unlike some other states, North Carolina does not have a...more

Newly-Enacted Texas Law Confirms Mechanism for Lenders to Unilaterally Rescind Acceleration

by Locke Lord LLP on

On June 17, 2015, Governor Greg Abbott signed House Bill 2067, which amends the Texas Civil Practice and Remedies Code to provide a clear mechanism for lenders to unilaterally rescind acceleration of a defaulted loan. ...more

Great News for Lenders—A Recent Decision Further Limits the Sham Guaranty Defense

by Ervin Cohen & Jessup LLP on

Recently, and shortly after my visit to several lender clients to make presentations regarding, among other topics, the enforceability of commercial guaranty agreements and the sham guaranty defense, the California Court of...more

Bankruptcy Beat: Public Tax Sale to Pay Unpaid Real Estate Taxes Held to Constitute “Reasonably Equivalent Value” for Fraudulent...

by Pullman & Comley, LLC on

A voluntary or involuntary transfer of property by a debtor for less than “reasonably equivalent value” at a time when the debtor is insolvent may be avoided as a fraudulent transfer 11 USC § 548, irrespective of the debtor’s...more

Compliance with California Foreclosure Recording Law: What Level of "Defect" in Foreclosure Recordings "Void" a Foreclosure Sale?

by Stoel Rives LLP on

In the wake of the California foreclosure crisis, one of several arguments relied on by borrowers facing foreclosure (and their attorneys) in “wrongful foreclosure” suits has been that some aspect of the statutory foreclosure...more

Recording Notice of Default as Trustee Before Being Formally Made the Trustee Does Not Make Foreclosure Sale Void

In Ram, et al. v. OneWest Bank, FSB, et al. (filed 2/6/15, No. A139055), the California Court of Appeal held that a nonjudicial foreclosure sale is not void merely because the notice of default was recorded by an entity who...more

Supreme Court of Washington Clarifies Guarantor Liability for Deficiency Judgments

by Perkins Coie on

The Supreme Court of Washington has upheld a lender’s right to pursue a deficiency judgment against a guarantor following a nonjudicial foreclosure of collateral under Washington’s Deed of Trust Act (the “Act”). The court’s...more

Second Bites at the Apple in Florida Foreclosures May Not Be so Sweet: New Appellate Court Cases Raise the Specter of Statute of...

Financial services companies pursuing judicial foreclosures in Florida already face a host of unique and challenging hurdles. The varying and often-times court- or judge-specific procedural, substantive, and evidentiary...more

Automatic Stay: What Happens When a Case is Reopened?

by Pepper Hamilton LLP on

U.S. Bank, N.A. v. Brumfiel (In re Brumfiel), 514 B.R. 637 (Bankr. D. Colo. 2014) – After a debtor reopened her chapter 7 bankruptcy case, a lender moved for relief from the automatic stay in order to continue with a...more

HOA Lien Extinguishes First Deed of Trust in Foreclosure, Nevada Supreme Court Holds

by Ballard Spahr LLP on

On the heels of a recent D.C. Court of Appeals ruling, the Nevada Supreme Court issued an opinion yesterday holding that a homeowners association (HOA) lien is a true super-priority lien that, if foreclosed upon, extinguishes...more

Waive Goodbye to Confirmation Hurdle! Recent Decision from the Georgia Court of Appeals Gives Lenders an Alternate Route to...

by Baker Donelson on

By most accounts, a decision from the Georgia Court of Appeals last September represents a sea change in the law governing judicial confirmation of foreclosure sales and post-foreclosure deficiency claims. Indeed, the Court's...more

Supreme Court Seeks Federal Government Opinion on National Bank Act Preemption of State Foreclosure Law

by Goodwin on

Considering a petition for certiorari filed by Federal National Mortgage Association in a case concerning which state’s law governs a national bank’s authority to serve as trustee under a deed of trust—the state in which the...more

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