Last week, the Texas Supreme Court answered the Fifth Circuit’s certified question as to whether simultaneous rescission and reacceleration can reset the limitations period under Texas Law by holding that “a rescission that...more
Welcome! Welcome to August’s issue of All Consuming. This month, we are taking a deep dive into discharges in bankruptcy and then reviewing several top news stories in the world of consumer finance. We hope you find value...more
As discussed in Part 1 of this series, the vast majority of California commercial mortgage loan foreclosures are conducted non-judicially. Accordingly, this Legal Update will not address judicial foreclosures. ...more
The Massachusetts Supreme Judicial Court (“SJC”) heard argument on February 13, 2020, on whether compliance with a state-mandated default notice could, nevertheless, void foreclosure sales in Massachusetts. ...more
If a Clerk of Court authorizes a foreclosure sale and the trustee sells the property, can a borrower or other aggrieved party later sue to nullify the foreclosure sale or recover damages caused by the foreclosure? In the...more
The current good economy (going on almost 10 years now) has meant that North Carolina appellate decisions affecting lenders trying to collect defaulted debt have been few and far between in the last couple of years. The North...more
Today, we look at the North Carolina Court of Appeals’ recent analysis in Nationstar Mortgage, LLC v. Curry, et al., COA18-351 (November 6, 2018) regarding whether a secured lender is actually a party to a proceeding....more
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
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
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
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
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
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
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
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
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
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
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
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
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