Archive for July 2016

Nevada Fed. Court Denies Class Cert. on ‘Ascertainability’ Grds., Fannie/Freddie Liens Not Extinguished by HOA Foreclosure

The U.S. District Court for the District of Nevada recently confirmed that a homeowner association’s foreclosure of its superpriority lien cannot extinguish a property interest of Fannie Mae or Freddie Mac while those entities are under the Federal Housing Finance Agency’s (FHFA) conservatorship. In so ruling, the Court also denied class certification, holding that the

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CFPB Issues Outline of Possible Debt Collection Rules

Today the Consumer Financial Protection Bureau released an outline of its proposals for rules under the federal Fair Debt Collection Practices Act. The FDCPA regulates the practices of debt collectors, primarily persons who collect consumer debt on behalf of others and sometimes persons who purchase defaulted consumer debts. The CFPB’s outline displays its intention to

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Mass. SJC Holds Recorded Attorney’s Affidavit May Cure Defect in Certificate of Acknowledgment for Mortgage

In response to a request from the U.S. Court of Appeals for the First Circuit, the Supreme Judicial Court of Massachusetts recently held that a recorded attorney’s affidavit attesting to the proper acknowledgment of a recorded mortgage with a Certificate of Acknowledgment that omits the mortgagors’ names, in certain circumstances, may cure the defect in

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Consumer Financial Services Conference Set for Sept. 15-16, Early Registration Ends July 30

July 26, 2016 — The Annual Consumer Financial Services Conference organized by The Conference on Consumer Finance Law will be held Sept. 15-16 at Loyola University Chicago School of Law. The early registration discount ends July 30. The conference will include presentations on the latest developments in consumer financial services law, including mortgage lending and

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Fla. App. Court (4th DCA) Holds HOA Foreclosure Filed After Recording of Mortgagee’s Lis Pendens Not Barred

Distinguishing its prior ruling in U.S. Bank National Ass’n v. Quadomain Condominium Ass’n, the District Court of Appeal of the State of Florida, Fourth District, recently held that a foreclosure of a homeowners association’s lien against the property owner filed after the recording of a lis pendens by a first mortgagee is not barred, where

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Calif. App. Court Holds Servicer May Owe Borrower Duty of Care as to Loan Mod Efforts, Loan Owner May Be Liable

The Court of Appeal of the State of California, Sixth Appellate District, recently held that a loan owner may be liable for misrepresentations made by the loan servicer. The Court also held that a loan servicer may owe a duty of care to a borrower through application of the “Biakanja” factors, even though its involvement

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11th Cir. Holds Procedural Violation of FDCPA Enough for Standing Under Spokeo

In an unpublished opinion, the U.S. Court of Appeals for the Eleventh Circuit recently held that a consumer alleging that she did not receive disclosures required by the federal Fair Debt Collections Practices Act (FDCPA) sufficiently alleged that she suffered a concrete injury, and thus satisfied the standing doctrine’s injury-in-fact requirement under Article III of

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Illinois App. Court Rules Deficiency Judgment Not To Be Reduced by Profit on Later Private Sale of Collateral

The Appellate Court of Illinois, Second District, recently held that when a mortgagee obtains a deficiency judgment in a foreclosure action, purchases the property at a judicial sale, and then resells it to a third party for an amount that exceeds the price paid at the judicial sale, the debtor is not entitled to a

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Fla. App. Court Rules New Foreclosure Plaintiff Following Transfer of Servicing Failed to Prove Standing

The District Court of Appeal of the State of Florida, Fourth District, recently reversed summary judgment in favor of a mortgagee, holding that a genuine issue of material fact as to whether the original plaintiff or the substituted successor in interest held the note when the complaint was filed precluded summary judgment, and thus that

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11th Cir. Upholds Denial of Arbitration, Holds Trial Not Required If No Genuine Issue of Material Fact

In a case involving the enforceability of so-called “clickwrap” web-based agreements, the U.S. Court of Appeal for the Eleventh Circuit recently affirmed the denial of a defendant’s motion to compel arbitration, holding that the defendant failed to prove the existence of an agreement to arbitrate. Because the Court found that the defendant offered no competent

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Ohio Supreme Court Holds Foreclosure Standing Requires Rights to Note, Mortgage, Including Post-Bankruptcy Discharge

The Supreme Court of Ohio recently held that, when debt on promissory note secured by mortgage has been discharged in bankruptcy, the holder of the note may not pursue collection against the maker of note, but the mortgagee has standing to foreclose on the collateral property, and can use the amounts due on the note

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MD Ga. Holds SOL on Security Deed is 21 Years, Wrongful Foreclosure Claim May Stand Independently of Fraud Claim

The U.S. District Court for the Middle District of Georgia recently held that when a mortgagee makes some affirmative misrepresentation or action that renders a foreclosure sale unfair, a claim for wrongful foreclosure may stand independently of a claim for fraud. The Court also held that the statute of limitations on a claim under a

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