Bar Exam Toolbox Podcast Episode 146: Listen and Learn -- Mortgages and Priority
In an appeal heard by the Appellate Division of the Supreme Court in the First Judicial Department of New York, the Court recently ruled that a court may reform a guaranty after the statute of limitations for a reformation of...more
It should go without saying that people make mistakes. After all, people are human, and humans make mistakes. When people draft a document, especially a lengthy or complex one, it is not uncommon for a mistake to be...more
Typically, one would expect a lender to argue that a borrower was in breach for failing to repay a note on or after its maturity date. However, a friend recently alerted me to a case in which the lender argued that the...more
A promissory note, in its simplest form, is an instrument by which a Borrower (the Maker) acknowledges its obligation to repay the Lender (the Payee). Historically, Lenders required Borrowers to enter into both a credit...more
Sale of the Business- Imagine Client has just received an attractive, all cash offer for the sale of their business; there is no financing contingency. The buyer has proposed a cash-free and debt-free deal....more
Welcome back to the Bar Exam Toolbox podcast! In today's installment of our "Listen and Learn" series, we're focusing on Real Property. In particular, we're diving into the tricky subtopic of mortgages and priorities. In...more
From time to time, we review loan files for clients to confirm they have the collateral they think they do. Assume a lender has a properly perfected $1,000,000 mortgage loan and a $500,000 line of credit secured by all of the...more
On December 28, 2020, former President Trump signed the Consolidated Appropriations Act. Over 5,000 pages in length, the Act included revisions and additions to the Paycheck Protection Program (PPP). The new PPP will: (1)...more
Dealmakers know that uncertainty is their proverbial kryptonite. As M&A and investment have started to show signs of life, acquirers of and investors in companies that received loans under the Paycheck Protection Program...more
On October 2, 2020, the U.S. Small Business Administration (SBA) released a Procedural Notice providing guidance addressed to Paycheck Protection Program (PPP) lenders and SBA employees as to the circumstances under which...more
Over the last decade or so, many Nevada borrowers faced with foreclosure of their residences have objected to foreclosure proceedings because the lender does not hold the original promissory note. In Jones v. U.S. Bank...more
The U.S. Small Business Administration (SBA) continues to fine-tune the terms of the Paycheck Protection Program (PPP) with the release of a fifth interim final rule on disbursements on April 28th (the Fifth Rule) and a sixth...more
Consider this scenario: You loan money to a borrower. You intend to secure the loan with a deed of trust encumbering real property. Your borrower signs a promissory note dated November 7, 2006. But your deed of trust is...more
As attorneys representing the financial services industry well know, the financial crisis of 2007-2008 resulted in a wave of foreclosures across the country as borrowers struggled to make payments on their mortgages. The...more
Our Distressed Debt & Claims Trading Team explores why it is more important than ever for bankruptcy claims and loan traders to inspect and comply with express anti-assignment and transfer restrictions in underlying debt...more
On June 20, 2018, Judge Carey of the Delaware Bankruptcy Court issued an opinion in the Woodbridge Group of Companies bankruptcies enforcing an anti-assignment clause contained in a promissory note to restrict assignment...more
Reverse mortgage lenders received a significant victory in Florida’s Third District Court of Appeal last week when the court issued its decision in OneWest Bank, FSB v. Palmero. After previously ruling in Smith v. Reverse...more
Arizona’s trustee’s sale statutory scheme provides for the waiver of all defenses and objections to a trustee’s sale that: (i) are not raised prior to the sale, and (ii) do not result in an injunction against the sale going...more
In a foreclosure action, the Illinois Appellate Court recently held that the foreclosing lender established its standing by attaching the blank-indorsed note to its complaint, but reversed judgment and remanded for the trial...more
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
Last year the Wisconsin Court of Appeals threw businesses a curveball when it held that a contractual waiver of the right to a jury trial was unenforceable. The holding of the case, Parsons v. Associated Banc-Corp., 2016...more
Given the choice, a borrower in foreclosure may prefer that a jury determine her fate, rather than a judge. But by statute, “[a]ll mortgages shall be foreclosed in equity” and “foreclosure claim[s] shall, if tried, be tried...more
The ownership of the promissory note by a subsidiary corporation of the Plaintiff cannot alone establish standing to foreclose. In HSBC Bank USA, N.A. v. Ryan Kahan, et al., the Court granted the borrowers’ motion for...more
Home equity conversion mortgages, commonly known as “reverse mortgages” are popular loan products in Florida. In order to foreclose on a reverse mortgage, the lender generally must allege that all conditions necessary to...more
In the case of Ashley Martins v. BAC Home Loans Servicing, L.P. and Federal National Mortgage Association (No. 12-20559, 2013 WL 3213633), the Fifth Circuit Court of Texas was first asked to decide whether the...more