Archive for April 2017 – Page 2

Illinois App. Court (2nd Dist) Holds Mortgagee Could Not Collect Deficiency from Rents Owed to Other Mortgagees

The Appellate Court of Illinois, Second District, recently held that a mortgagee with a foreclosure judgment could not collect on the deficiency against rents from other properties owned by the mortgagor, because the mortgagee’s foreclosure judgment was not superior to the prior recorded mortgages for the other properties which contained assignment-of-rent clauses, and the other

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9th Cir. Holds FDCPA §1692f(6) Applies to Non-Judicial Foreclosures

The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a Fair Debt Collection Practices Act claim arising out of a non-judicial foreclosure.  The Ninth Circuit ruled that section 1692f(6) of the FDCPA applies to non-judicial foreclosure activity. A copy of the opinion in Dale Dowers v. Nationstar Mortgage, LLC is

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5th Cir. Holds No Statute of Limitations on Texas Home Equity Claims

The U.S. Court of Appeals for the Fifth Circuit recently held that no statute of limitations applies to a mortgage loan borrower’s claims of violations of the requirements for home equity loans contained in section 50(a)(6) of the Texas Constitution. In so ruling, the Court recognized and applied the Texas Supreme Court’s recent ruling in

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Indiana Supreme Court Rejects Borrowers’ Argument Bankruptcy Discharge Wiped Out Mortgage Loan, Lien

The Supreme Court of Indiana recently confirmed a mortgagee’s ability to seek an in rem judgment against property for which there was an outstanding lien balance after the borrowers obtained a discharge of their Chapter 7 bankruptcy. In so ruling, the Court distinguished the difference between an in rem and in personam judgment, and rejected

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7th Cir. Rejects Borrower’s Claims Against Mortgagee, Other Parties Under Rooker-Feldman

The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a borrower’s lawsuit against his mortgagee, its former employees, counsel and appellate counsel, and the original mortgagee’s software platform creator, under various federal and state consumer protection statutes and common law torts. In so ruling, and despite the borrower’s assertion that

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Illinois App. Court (1st Dist) Holds Post-Foreclosure COA Dues Need Not Be Paid Monthly to Extinguish Pre-Foreclosure COA Lien

Reversing a trial court’s ruling in favor of a condominium association and against a mortgagee, the Appellate Court of Illinois, First District, recently held that the Illinois Condominium Property Act’s (“Condo Act”) provision creating a mechanism to extinguish liens for pre-foreclosure common expense assessments does not create a timing requirement as to when common expense

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5th Cir. Holds Wage Garnishment Served More Than 90 Days Before Bankruptcy Is Avoidable Transfer

The U.S. Court of Appeals for the Fifth Circuit recently held that the collection of garnished wages earned during the 90 days prior to the filing of a bankruptcy petition is an avoidable transfer, even if the garnishment was served before the 90-day preference period. The ruling creates a potential split with the Second, Seventh,

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MD Tenn. Holds Auto Finance Creditor’s Telephone Authorization Process Complied With EFTA

The U.S. District Court for the Middle District of Tennessee recently held that a creditor complied with the federal Electronic Funds Transfer Act when it obtained verbal authorization to accept the consumer’s electronic fund transfer and request for enrollment into an autopay system. In so ruling, the Court held that the creditor was not required

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7th Cir. Reverses Class Cert, Dismisses Lawsuit for Lack of Standing Under Spokeo

The U.S. Court of Appeals for the Seventh Circuit recently reversed a trial court’s grant of class certification and remanded the case with instructions to dismiss the case with prejudice because the plaintiffs lacked standing to sue, having shown no injury in fact as required under Spokeo, Inc. v. Robins. A copy of the opinion

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Indiana Supreme Court Holds Out-of-State Consumer Attorneys Not Exempt from Indiana Consumer Protection Statutes

In an action brought by the Indiana Attorney General against a Florida-based foreclosure defense law firm and its owner-officer, the Supreme Court of Indiana recently held that none of the defendants were expressly or impliedly exempt from liability under four Indiana state consumer protection statutes. A copy of the opinion in Consumer Attorney Services, PA

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