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
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
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
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
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
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
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
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’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
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
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
Given the parallels between the current student loan debt crisis (including the CFPB, Illinois and Washington’s recent lawsuits against Navient) and the foreclosure crisis of 2010-14, now is a good time to reflect on the lessons learned from past experience. From our experience negotiating comprehensive deals with regulators, advising companies on how to comply in … Continue Reading
The mortgage industry scored a significant victory last week when the Florida Supreme Court released its decision in Bartram v. U.S. Bank, N.A. broadly approving of the approach taken by the Fifth District Court of Appeal and other courts in addressing the application of the statute of limitations in the context of an action for … Continue Reading
Last week, in U.S. ex rel. Advocates for Basic Legal Equality, Inc. (ABLE) v. U.S. Bank, the Sixth Circuit affirmed the dismissal of a False Claims Act (FCA) suit against U.S. Bank because the conduct alleged by the qui tam relator had previously been publicly disclosed in a consent order with the Office of the … Continue Reading
In January, the Supreme Court of California affirmed the Court of Appeal’s application of Code of Civil Procedure section 580b and held that the statute’s antideficiency protection applies to short sales just as it does to foreclosure sales. In Coker v. JPMorgan Chase Bank, N.A., the lienholder had begun the foreclosure process when the borrower asked the lienholder … Continue Reading
The Fifth Circuit Court of Appeals recently clarified how mortgage lenders and servicers can abandon a loan acceleration under Texas law. Although Texas generally requires foreclosure actions to be brought no more than four years after a loan is first accelerated, the holding in Boren v. U.S. National Bank makes clear that in certain situations … Continue Reading
The servicer community recently scored an important victory in an opinion issued by the en banc Washington Supreme Court. The decision—Brown v. Wash. State Dep’t. of Commerce, —clarifies the scope of the small lender exemption to the Washington Foreclosure Fairness Act (FFA) mandatory mediation program (codified at RCW 61.24.166). Further supplementing the victory, the Court … Continue Reading
Recently, the Federal Housing Administration (FHA) withdrew part of a proposed rule that sought to establish a maximum time period within which an FHA approved mortgagee must file a claim with FHA for insurance benefits. The decision came in response to public comments expressing concern over the proposed rule’s implementation, which many agreed would ultimately … Continue Reading
The Fifth Circuit Court of Appeals recently handed Mortgage Electronic Registration Systems, Inc. (MERS) another victory against challenges to MERS’ authority to assign a mortgage. In Ferguson v. Bank of New York Mellon, the Fifth Circuit ultimately held that MERS was a proper beneficiary of the subject deed of trust and, therefore, had the right … Continue Reading
In late July, another Florida appellate court took a sizable chunk out of foreclosure defense attorneys’ litigation playbook, holding that substantial compliance, rather than strict compliance, is the prevailing standard to be used by courts when assessing whether a mortgage loan servicer complied with the pre-foreclosure requirements found in Paragraph 22 of most residential mortgages. … Continue Reading
Earlier this month, the United States District Court for the Southern District of Florida in Summerlin Asset Mgmt. V Trust v. Jackson decided an issue of first impression regarding whether compliance with Florida Statute section 559.715 is a condition precedent to the commencement of a mortgage foreclosure action. The section is a provision of the Florida … Continue Reading
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) can extinguish first deeds of trust when the underlying indebtedness is owned by a Government-Sponsored Enterprise (GSE) like Federal National Mortgage Association (Fannie Mae) or Federal … Continue Reading
After a long stretch of inactivity in the default space, the New York Court of Appeals recently returned to the subject with an opinion addressing its expectations regarding affidavits used by parties seeking deficiency judgments in foreclosure actions. While the Court did not opine on what would be necessary for such an affidavit to pass … Continue Reading
Attacking sufficiency, accuracy, or validity of assignments of mortgages and deeds of trust has been among the most common strategies employed by borrowers to challenge foreclosures. Allegations regarding the status of MERS, the legal authority of the individual executing the assignment, and the timing of the assignment’s recording have all been raised and litigated in … Continue Reading
