Modifying a loan can sometimes cause a loss of lien priority. It all depends on the facts underlying the modification, and even the original loan....more
Secured creditors have many choices when it comes to how to file a proof of claim in bankruptcies. Those choices should be weighed carefully, however, because certain choices can have important unexpected consequences that...more
Real Property Update - Foreclosure / Surviving Lien: Lender’s lien on mobile home survived foreclosure sale of property where mobile home was located; mobile home remained personal property outside scope of foreclosure –...more
That pesky excess sale proceeds statute, A.R.S. § 33-727, is making waves again. We previously blogged about this statute... In the prior post, we explained that excess sale proceeds (i.e., a foreclosure sale price greater...more
As lenders and servicers continue to litigate in Nevada’s state and federal courts about the effect of homeowner associations’ (HOAs) foreclosure sales, some questions have proven particularly sticky. What happens when a...more
Senate Bill 374 and House Bill 250, pending in the Maryland General Assembly, would expand the portion of a condominium’s lien that has a priority over a first mortgage or first deed of trust. ...more
Indiana has a significant body of legislation and case law addressing the priority of mortgages vs. mechanic’s liens. The banking and construction industries in Indiana are well developed and funded and have over the years...more
The doctrine of conventional subrogation in real estate is familiar to most lenders: a new lender that pays the mortgage of a prior one steps into the shoes of – or is subrogated to – the prior lender’s security interest in...more
N.C. Gen. Stat. § 45-36.6(b) provides that if a secured party erroneously records a release or satisfaction of a security instrument, then the secured party can file a document of rescission that will effectively rescind the...more
This post follows, almost two years to the day, Rick Erickson’s post of August 29, 2014. As noted by Rick Erickson in his August 29, 2014 post, the Arizona Supreme Court in the Weitz case (2014) had determined that equitable...more
The U.S. Federal Housing Administration (FHA) issued final guidance in the form of Mortgagee Letter 2016-11 regarding the subordination of Property Assessed Clean Energy (PACE) assessments on Tuesday, July 19, 2016. As...more
California’s one-action rule provides that “[t]here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein . . . .”...more
In a decision that should be read as a warning to mortgage industry participants doing business in the Commonwealth of Massachusetts, the state’s high court has validated a condominium associations’ so-called “rolling”...more
All real estate professionals and investors are familiar with the concept of the priority of liens. As a general rule, when there are multiple liens recorded against a property, the one that is recorded first is “superior”...more
It’s a common occurrence – a mortgagor or grantor signs the security instrument a day or two in advance of the loan, or perhaps a note is re-signed a couple of days after closing to correct an error in the original note....more
In a previous blog post, we reported on Senate Bill 306, passed by Nevada Governor Brian Sandoval on May 28, 2015. The legislation redresses the substantial harm caused by SFR Investments Pool 1, LLC v. U.S. Bank, N.A. In SFR...more
Yesterday, the U.S. District Court for the District of Nevada issued an important ruling concerning the litigation over whether homeowners’ association foreclosures under Nevada’s super-priority lien statute (NRS 116.3116)...more
The Nevada Legislature recently passed a bill intended, in part, to address issues resulting from the Nevada Supreme Court’s decision that a homeowners association lien is a true super-priority lien that, if foreclosed,...more
What is the difference between a Deed of Trust and a Mortgage? The terms “Deed of Trust” and “mortgage” are often used by people interchangeably. Both serve to give the lender a lien as collateral for a loan but, these...more
The U.S. Supreme Court has held that a debtor in a Chapter 7 bankruptcy proceeding may not void a junior mortgage lien when the debt owed on a senior mortgage lien exceeds the current value of the collateral, provided that...more
On June 1, 2015, the United States Supreme Court decided Bank of America v. Caulkett, No. 13-1421, together with Bank of America v. Toledo-Cardona, No. 14-163, holding that a debtor in a Chapter 7 bankruptcy proceeding may...more
In a recent decision, the Utah Supreme Court addressed a matter of first impression in Utah, namely, whether a subordination agreement between two senior lenders, which reversed the priority of their respective liens against...more
The Supreme Court of South Carolina recently held that a lienholder’s ability to obtain equitable subordination of a prior mortgage was not precluded by its agent’s knowledge that the prior mortgage had not been satisfied. In...more
On July 9, 2014, Pennsylvania Governor Tom Corbett signed a bill (S.B. 145) into law that amends the Pennsylvania Mechanics’ Lien Law of 1963 (the “Lien Law”). The new law took effect on September 8, 2014 and affects...more