News & Analysis as of

Trustees Foreclosure

Your Foreclosure Hearing Just Got More Crowded

by Ward and Smith, P.A. on

On August 30, 2017, an amendment to North Carolina’s foreclosure statutes took immediate effect. The amended statute, Section 45-10, concerns substitute trustees under a deed of trust. As amended, Section 45-10 now prohibits...more

Section 1111(b) Election Not Available When Collateral Is Sold Post Petition

by Dechert LLP on

The facts in Salamon are straightforward. Salamon (“Buyer”) purchased real property from Behrend (“Seller”) that was already subject to two liens (the “Preexisting Debt”). Instead of paying cash at closing, the Buyer executed...more

What is the Effect of an Untimely Challenge to the Timeliness of a Trustee’s Sale?

by Snell & Wilmer on

Ever wonder what happens if a person challenges the timeliness of a trustee’s sale after the sale already occurred? Waiver of the argument of course! And, in the case of Wells Fargo Bank, N.A. v. Waltner, the affirmance of...more

Presence of Trustee at Foreclosure Sale

by Miles & Stockbridge P.C. on

The Maryland Court of Special Appeals in Fisher v. Ward affirmed a Circuit Court’s dismissal of a foreclosure proceeding exception in which the Trustee under the subject Deed of Trust was not physically present at the sale....more

North Carolina Court of Appeals Affirms Right of Former Trustee to Represent Lender in Foreclosure Under Deed of Trust

by Ward and Smith, P.A. on

Recently, the North Carolina Court of Appeals issued an opinion addressing whether a conflict of interest exists when a trustee under a deed of trust initiates a foreclosure proceeding and later represents the lender in that...more

T&E Litigation Newsletter- July 2016 #2

by Goulston & Storrs PC on

The first two weeks of July have brought us some warm weather and three new decisions worth noting: First, in Bank of America, N.A. v. Commissioner of Revenue, Docket No. SJC-11995 (July 11, 2016), the Supreme Judicial...more

Appellate Court Notes

by Pullman & Comley, LLC on

Supreme Court Advance Release Opinions: SC19384 - State v. Carter - SC19282 - State v. Peeler - Appellate Court Advance Release Opinions: AC37262 - Dumbauld v. Dumbauld - AC37262 Concurrence -...more

Court Cannot Enter Default Against Trustee that Submits Unopposed Declaration of Non-Monetary Status

by Ballard Spahr LLP on

The California Court of Appeal recently held that a plaintiff cannot seek entry of default against a trustee that files a declaration of nonmonetary status pursuant to California Civil Code Section 2924l. Section 2924l...more

Illinois Supreme Court Expands Who Can Seek TILA Rescission

by Reed Smith on

A recent Illinois Supreme Court opinion may expose banks to a flood of TILA rescission claims by anyone who claims an ownership interest in mortgaged property. The state supreme court ruled that the right to rescind includes...more

The Case of the Vanishing Guaranty—Issues Facing Commercial Real Property Lenders Regarding Revocable Trust Borrowers

by Ervin Cohen & Jessup LLP on

I have recently received numerous questions from commercial lender clients regarding structuring and enforcing commercial real property loans involving revocable trusts. Their concerns have largely centered on how to...more

CFPB: “F” is for “Foreclosure,” “FDCPA”

by MoFo Reenforcement on

The CFPB has weighed in on whether a trustee foreclosing on a California home qualifies as a “debt collector” under the federal Fair Debt Collection Practices Act. In Ho v. ReconTrust, N.A. (9th Cir. Aug. 7, 2015), the Bureau...more

Foreclosures: Beware Unexpected Violations

by Pepper Hamilton LLP on

Field v. Bank of America, N.A. (In re Gibbs), 522 B.R. 282 (Bankr. D. Hawaii 2014) – A bankruptcy trustee sued a mortgage lender to recover for defects in a prepetition non-judicial foreclosure sale. The lender brought a...more

Borrowers Can Avoid Liability Even After a Trustee’s Sale

by Snell & Wilmer on

Since a lender must have a valid debt and valid lien to conduct a trustee’s sale, a borrower that allows the foreclosure sale to occur impliedly agrees that the debt and lien are valid. In Madison v. Groseth and BT Capital,...more

Lenders Beware – the Steinberger decision leaves lenders vulnerable to a defaulting homeowner's delay tactics

As if lenders don't have enough on their plates, dealing with a slowly rebounding economy and debtors struggling to make payments, on January 30, 2014, the Arizona Court of Appeals issued a decision that is bound to wreak...more

Lenders and Servicers: Be Aware of How Trustees Handle Excess Proceeds from HOA Foreclosure Sales in Nevada

by Ballard Spahr LLP on

Lenders and servicers have been addressing the issue of some Nevada courts ruling that a foreclosure sale by a homeowners association (HOA) "wipes out" a senior deed of trust. Since the date of our last legal alert on this...more

Nevada Foreclosure Law Changes

by Snell & Wilmer on

The Nevada Legislature recently passed amendments to the Nevada Revised Statutes (NRS) that appear to be intended to ease the nonjudicial foreclosure process for lenders and provide meaningful disclosure of what borrowers...more

Nevada Supreme Court To Consider 'Foreclosure Sale' Definition

by Ballard Spahr LLP on

Special servicers and lenders who have loans secured by real property in Nevada should be aware of a case that is on appeal in that state. Briefing is about to begin on what could be an important win, or loss, for the lending...more

U.S. Bank Sued Over Management of 28 RMBS Trusts

On May 24, several banks and asset management companies sued U.S. Bank in a Missouri state court over U.S. Bank’s alleged mismanagement of 28 RMBS trusts. Plaintiffs allege that U.S. Bank disregarded its duties as trustee by,...more

Nevada Appeals Court To Consider ‘Foreclosure Sale’ Definition

by Ballard Spahr LLP on

Special servicers and lenders who have loans secured by real property in Nevada should be aware of a case that is on appeal in that state. Briefing is about to begin on what could be an important win, or loss, for the lending...more

Trustee Empowered To Void Foreclosure Sale Where Error Discovered Before Delivery Of Trustee’s Deed

by Miller Starr Regalia on

California’s Supreme Court affirmed a trustee’s right to void a non-judicial foreclosure sale based on mistakes in the foreclosure process discovered before delivery of a trustee’s deed to the successful bidder. ...more

Neither Failure to Name Trustee In Deed of Trust Nor Absence of The Original Note Will Invalidate A Nonjudicial Foreclosure Sale –...

by Miller Starr Regalia on

In this recent Court of Appeal opinion, an issue of first impression in California was addressed: That is, can a borrower seek to set aside a nonjudicial foreclosure under a deed of trust which initially failed to identify a...more

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