Category Archives: Foreclosure

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Pre-Bankruptcy Automatic Stay Waivers – More Valuable Than Ever These Days?

In the very unusual period in which we find ourselves today, it seems to be common wisdom that an avalanche of commercial loan defaults is coming. As such, it is a good time to take a fresh look at the terms and provisions used in commercial workout documents, whether in a simple agreement that extends … Continue Reading

FHFA Announces COVID-19 Forbearance Relief for Mortgage Servicers

In a statement released on April 21, 2020, the Federal Housing Finance Agency (FHFA) announced that mortgage servicers would only be required to advance four months of missed payments for Fannie Mae and Freddie Mac owned loans on CARES Act forbearance plans. After that four-month period, FHFA explained the servicers would be under “no further … Continue Reading

New Nevada Decisions Confirm Additional Ways to Satisfy HOA Superpriority Liens

The Nevada Supreme Court again turned its attention to superpriority liens in the first quarter of 2020, issuing two opinions dealing with tenders, i.e. attempts or offers to pay. These decisions outline additional ways that the superpriority portion of an HOA’s lien can be satisfied, offering hope to lenders embroiled in litigation over the continuing … Continue Reading

Foreclosure in the Times of COVID-19: Some Texas Counties Halt Foreclosures for April Amid Coronavirus Concerns

Many of Texas’ largest counties have suspended foreclosures for the month of April amid coronavirus (COVID-19) concerns, including the state’s two largest counties, Harris and Dallas. Texas Gov. Greg Abbott, however, has yet to issue an executive order or make a general proclamation cancelling all foreclosures statewide. Likewise, the Texas Supreme Court has also declined … Continue Reading

Coronavirus Economic Stabilization Act of 2020: Implications for Consumer Financial Services

On Friday, President Trump signed the Coronavirus Economic Stabilization Act of 2020 (CARES Act). The significant legislation directs more than $2 trillion into fighting the COVID-19 pandemic and stimulating America’s economy for the duration of the pandemic. This blog summarizes some of the provisions that are most relevant to financial institutions that make or service … Continue Reading

Fannie Mae and Freddie Mac Announce Relief Plan for Multifamily Borrowers

On Tuesday, Fannie Mae and Freddie Mac, in coordination with the Federal Housing Finance Agency, announced relief plans to discourage multifamily landlords from evicting renters from properties as a result of non-payment. In exchange, Fannie Mae and Freddie Mac are allowing multifamily landlords (whose loans are financed by Freddie or Fannie) to defer loan payments … Continue Reading

Updates from 12 State Regulatory Agencies Regarding Coronavirus and Related Work from Home Issues

As regulatory agencies provide guidance regarding working from home for financial services professionals while the COVID-19 outbreak progresses, we summarized the additional guidance issued in the recent past and current as of March 24, 2020. California Department of Real Estate Released Frequently Asked Questions Relating to COVID-19 The California Department of Real Estate’s Frequently Asked … Continue Reading

What Will COVID-19 Relief Look Like and How Will It Affect Financial Services Companies?

Both parties have recognized the need for significant and immediate relief to assist consumers and small businesses affected by COVID-19. On March 18, 2020, Rep. Maxine Waters (D-CA), the chairwoman of the House Financial Services Committee, released plans for responding to the COVID-19 pandemic. At this point, the plans are merely a high-level list of … Continue Reading

HUD, Fannie Mae, and Freddie Mac Suspend Foreclosures and Evictions for 60 Days

During a COVID-19 press briefing at the White House on March 18, 2020, President Donald Trump announced that the Department of Housing and Urban Development (HUD) will temporarily suspend “all foreclosures and evictions.” The president made this announcement to provide “immediate relief” to homeowners and renters struggling to make rent and mortgage payments. The president’s … Continue Reading

HUD Proposed Rule Demands More Disparate and More Impact to Establish Disparate Impact Liability

The United States Department of Housing and Urban Development (HUD) released a sweeping proposed rule on August 1 seeking to amend HUD’s interpretation of the Fair Housing Act’s disparate impact standard. According to HUD, the proposed rule is designed to better reflect the U.S. Supreme Court’s 2015 ruling in Texas Department of Housing and Community … Continue Reading

Nevada Supreme Court Rules Bank Tender Defeats HOA Superpriority Lien

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 lender mails in a check to an HOA for its superpriority lien, but the check is refused? How about when the lender offers … Continue Reading

Supreme Court Holds Foreclosure Firms Are (Generally) Not Debt Collectors under the FDCPA

Conducting a foreclosure does not make one a “debt collector,” at least for the general purposes of the Fair Debt Collection Practices Act (FDCPA). That fact is the upshot of yesterday’s unanimous Supreme Court decision in Obduskey v. McCarthy & Holthus LLP. In Obduskey, the law firm of McCarthy & Holthus LLP was hired to … Continue Reading

Nevada Courts Provide Additional Guidance on HOA Super Priority Lien Law for Lenders

As we’ve discussed on this blog before, Nevada’s courts remain a battleground for lenders seeking to establish that their security interests were not eliminated by homeowners’ association foreclosure sales under NRS 116. In recent weeks, the Ninth Circuit and Supreme Court of Nevada have issued new opinions providing more guidance to ultimately resolve those issues. … Continue Reading

New Decision from the D.C. Court of Appeals Recognizes Additional Defenses to HOA Super-Priority Lien Statute

As we noted in last week’s blog post, the District of Columbia Court of Appeals issued a decision on March 1, 2018, that created a new wave of uncertainty for lenders with loans secured by deeds of trust on condominium units in the District of Columbia. In the Liu decision, the court held that a … Continue Reading

HOA Super-Priority Lien Law Preempted by Federal Statute

Given the significant role Fannie Mae and Freddie Mac have in the national housing market, it is unsurprising that both have become embroiled in the Nevada HOA super-priority lien litigation. Since July 2008 – well before the Nevada Supreme Court held that an HOA’s foreclosure on its super-priority lien could extinguish a first deed of … Continue Reading

Is a Foreclosure Crisis Looming in Our Nation’s Capital?

The District of Columbia Court of Appeals recently sent a new set of shockwaves through the mortgage industry in the nation’s capital when it released its decision in Andrea Liu v. U.S. Bank National Association. Having held over three years ago that condominium associations have “super-priority” liens for unpaid assessments and can wipe out first … Continue Reading

Fourth Circuit Asked to Rule on Whether Mortgage Retroactively Incorporates Federal Servicing Requirements

A recent appeal to the Fourth Circuit may shed light on whether Virginia borrowers can assert federal mortgage servicing requirements as a defense to foreclosure when the mortgage instrument pre-dates the federal requirement. In Stansbury v. Federal National Mortgage Association, borrower Hollie Stansbury argues that a 2011 consent order between her mortgage servicer and the … Continue Reading

After the Waters Recede: The Mortgage Servicer’s Role in Navigating Insurance Claims, Part III

In the first part of the series “The Mortgage Servicer’s Role in Navigating Insurance Claims,” we covered assessing property damage and applying insurance proceeds in compliance with the terms of the standard mortgage agreement. In part two, we discussed protecting the mortgagee’s rights under a homeowner property policy. In this final installment, we discuss maximizing … Continue Reading

After the Waters Recede: The Mortgage Servicer’s Role in Navigating Insurance Claims, Part II

In the first part of the series “The Mortgage Servicer’s Role in Navigating Insurance Claims,” we covered assessing the damage in the wake of a natural disaster and applying the proceeds when complying with the terms of mortgage agreements to protect against liability. In part two, we will look into protecting the mortgagee’s rights under … Continue Reading

After the Waters Recede: The Mortgage Servicer’s Role in Navigating Insurance Claims, Part I

Part I: Assessing the Damage and Applying the Proceeds Following the recent hurricanes that have damaged many homes beyond repair, borrowers may seek to apply any available insurance proceeds to satisfy the outstanding balance on their loans rather than repair the property. Servicers should take certain precautions to ensure they comply with the terms of … Continue Reading

Big Win for Servicers and Lenders of Fannie and Freddie Owned Loans against Nevada HOA Foreclosures

Today, the U.S. Court of Appeals for the Ninth Circuit issued a significant decision in favor of lenders and mortgage servicers fighting off claims that their mortgage liens were extinguished by Nevada homeowners associations’ foreclosures from 2010 to 2014. In Berezovsky v. Moniz, the court held that the Federal Foreclosure Bar found in the Housing … Continue Reading

Oregon Regulates Home Equity Conversion Mortgage Originators and Servicers in New Law

Oregon’s legislature continues to add state level regulations to the Home Equity Conversion Mortgage (“HECM,” more commonly known as a reverse mortgage) marketplace. In 2015, the state imposed a series of content and presentation requirements on any “advertisement, solicitation, or communication” HECM lenders used to induce potential borrowers to apply for a HECM loan. When … Continue Reading

Ruling Eases Lenders’ Path to Deficiency Judgments in NC

Winning a deficiency judgment following foreclosure may become less costly for lenders following a May 5 ruling by the North Carolina Supreme Court in United Community Bank v. Wolfe. Reversing a previous ruling by the Court of Appeals, the Supreme Court held that a borrower may not defeat summary judgment simply by filing a sworn … Continue Reading

Recent Cases Highlight Latest Potential Foreclosure Evidentiary Pitfall

Over the last few years, financial institutions have been forced to modify their policies and procedures to ensure that they are able to demonstrate compliance with notice provisions contained in residential mortgages prior to initiating foreclosure actions. Several recent decisions have addressed the issue of whether sufficient evidence was presented to establish that the creditor … Continue Reading
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