Archive for May 2015 – Page 2

Bankruptcy Court Holds Wholly Unsecured Second Mortgage Lien May Be ‘Stripped Off’

The U.S. Bankruptcy Court for the Southern District of Florida recently held that a wholly unsecured second mortgage lien may be “stripped off,” even if the property encumbered by the lien is no longer part of the bankruptcy estate due to abandonment by the bankruptcy trustee. The Bankruptcy Court did not specifically reference the consolidated

Read more →

Florida Court Reverses Dismissal of Foreclosure Action, Holds New Default Gives New Right to Foreclose

The Florida First District Court of Appeal recently affirmed a trial court’s dismissal of a follow up foreclosure action based on res judicata to the extent the default date was the same as that in the first action, which had been dismissed for failure to prosecute. However, the Court reversed the trial court’s dismissal of

Read more →

TCPA Roundup: As Big Data Grows, So Does Scale of TCPA Violations

As big data grows, so does the scale of TCPA violations, and with that the settlements; one of the largest in TCPA history was in the news last week. In a California district court, attorneys who guided consumers in suing a bank for a $32 million settlement were denied a bid to increase their fees to $8

Read more →

Florida Court Holds Witness Need Not Be Employed for Entirety of Payment History Period to Lay Proper Business Records Foundation

The Florida Third District Court of Appeal recently reversed a trial judge’s refusal to admit a loan payment history into evidence, holding that the foreclosing mortgagee properly demonstrated that the payment history was a business record, even though its witness started working for the mortgagee in 2012 and the payment history included information since 2005. A

Read more →

Florida Court Upholds Judgment in Action on Note Following Foreclosure

The Florida First District Court of Appeal recently affirmed a monetary judgment against a borrower in a follow up action to collect the balance owed on a note secured by a mortgage. The follow up action was consolidated with a prior foreclosure action in which the court reserved jurisdiction to enter a deficiency judgment. A copy of the

Read more →

Ohio Supreme Court Rules Standing Must Exist When Foreclosure Is Filed, But Can Be Proven Later

The Supreme Court of Ohio recently held that, although the plaintiff in a mortgage foreclosure action must have standing to sue when suit is filed, standing can be proven after the case is filed. A copy of the opinion is available at: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-1484.pdf The plaintiff mortgagee sued to foreclose its mortgage in 2010 after borrowers defaulted

Read more →

Florida Court Reverses Trial Court’s Refusal to Extend Duration of Lis Pendens

The District Court of Appeal of Florida for the Fifth District recently held that a trial court’s refusal to extend the duration of a lis pendens on real property was a departure from the essential requirements of law. A copy of the opinion is available at: http://www.5dca.org/Opinions/Opin2015/042715/5D14-4009.op.pdf Due to a scrivener’s error by the closing agent,

Read more →

First Circuit Confirms Loan Modification Rendered Borrower’s ‘Standing’ Challenge Moot

The U.S. Court of Appeals for the First Circuit recently dismissed a borrower’s appeal as moot because the borrower and loan servicer entered into a loan modification agreement while the appeal was pending, meaning the borrower was no longer subject to any actual or threatened foreclosure proceedings. A copy of the opinion is available at:

Read more →

Ninth Circuit Holds State Court Order Expanding Class Size Triggers Removal Opportunity

The US. Court of Appeals for the Ninth Circuit recently reversed a district court’s order remanding a class action to state court, holding that a second removal was proper and timely-filed 30 days after the state court entered an order that expanded the class definiton after the first removal. A copy of the opinion is

Read more →