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Like many of you, we are seeing a significant increase in commercial real estate (“CRE”) loan workouts. The magnitude of the swell in distressed CRE loans remains unclear, although one thing is certain: appreciating the...more
Real Property Update - Foreclosure / Standing: Dismissal for lack of standing was improper where foreclosing lender proved standing by special indorsement on the note and related indorsement timing evidence – Deutsche Bank...more
The New York State Supreme Court, New York County Commercial Division (the “Court”) decided in U.S. Bank, N.A. v. 342 Property LLC, on February 14, 2022, that a mezzanine lender that is not a party to loan documents that...more
Purchase & Sale Agreement / Fraud Disclaimer: Even though parties, in a purchase and sale agreement, stipulated that no fraud had been committed and that neither party had relied on the representations of the other party made...more
Real Property Update - Foreclosure / Reverse Mortgage: Surviving spouse who did not sign the note did not qualify as a “borrower” by signing the mortgage and related documents – OneWest Bank, N.A. v. Leek-Tannenbaum, No....more
Real Property Update - Foreclosure / Default: Trial court did not abuse discretion in determining that plaintiff’s counsel was not aware of the defaulting party’s intention to defend against foreclosure lawsuit – College...more
In a recent concurring opinion, Judge Rowan D. Wilson sifts through and attempts to clear up some confusion in New York case law surrounding the doctrine of standing in foreclosure actions. ...more
Real Property Update - Foreclosure / Standing: Servicer had standing to foreclose where asset management agreement authorized predecessor-in-interest to delegate service of loan and ability to bring foreclosure action and...more
Real Property Update - Foreclosure / Standing: Where plaintiff was substituted in as a party plaintiff after original note was filed with the court, introduction of original note bearing blank indorsement into evidence at...more
Real Property Update - Quiet Title: Trial court abused discretion by entering final judgment quieting title when jury did not determine (1) whether plaintiffs were entitled to legal or equitable title or (2) which deed was...more
Real Property Update - Due Process: Trial court violated developer’s due process rights by considering and ruling upon developer’s motion to quash service of process, which was not set for hearing, despite developer’s...more
Real Property Update - Foreclosure / Rehearing: Order denying rehearing on summary judgment motion and denying continuance affirmed where (1) affidavit in support of rehearing failed to disclose any genuine issue of...more
Real Property Update - Foreclosure / Statute of Limitations: default notice pursuant to paragraph 22 of subject mortgage may include amounts accrued outside five-year statute of limitations – U.S. Bank, Nat’l Ass’n v....more
Late last month, the U.S. Court of Appeals for the Eleventh Circuit held in Regions Bank v. Legal Outsource PA, No. 17-11736, 2019 WL 4051703 (11th Cir. Aug 28, 2019), that a loan guarantor does not qualify as an “applicant”...more
Real Property Update - Foreclosure / Condo Assessments: under section 718.116(1)(a), Florida Statutes, present condo owner is jointly and severally liable with the previous owner for unpaid assessments and related expenses...more
Real Property Update - Foreclosure / Standing: owner of property subject to mortgage at the time the complaint and lis pendens were filed had standing to dispute legal sufficiency of proof of amount due where owner was...more
Real Property Update - Public Official Standing Doctrine: county school district that benefited from ad valorem taxes charged by county could not challenge constitutionality of statutory tax exemption claimed by homeowners...more
Real Property Update - Substantive Due Process: land use restriction was executive (not legislative) action, and could not give rise to substantive due process claim since property rights are not a "fundamental right" under...more
Real Property Update - Foreclosure / Surplus Funds: sections 45.032 and 45.033, Florida Statutes, create a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is...more
Real Property Update - Trespass / Temporary Injunction: temporary injunction order premised upon a physical trespass onto property, which did not specify actions that constitute trespass, did not enjoin use of airspace over...more
The Florida Supreme Court released an opinion in Glass v. Nationstar, SC17-1387 with widespread implications in contract litigation, and mortgage foreclosure litigation in particular, as it relates to attorney’s fee...more
Real Property Update - Derivative v. Direct Action / Standing: individual member of LLC not entitled to sue title company for breach of fiduciary duty because right to sue belonged to LLC, where LLC suffered the direct...more
On October 31, 2018, Florida’s Second District Court of Appeal recently distinguished two of its prior opinions and held that a foreclosure plaintiff does not lose its standing as a holder of a negotiable instrument if it...more
REAL PROPERTY UPDATE - Foreclosure/Standing: bank's allegation in complaint that it acquired loan and possessed both legal and beneficial interest in note and mortgage prior to filing complaint, coupled with the subsequent...more
REAL PROPERTY UPDATE - Summary Judgment: incorporation of an affirmative defense by referencing “previously filed pleadings” does not obviate movant’s obligation to comply with particularity requirements mandated by rule...more