Author Archive for Stuart Miles

DC App. Court Holds HOA May Not Foreclose Subject to First Deed of Trust

The District of Columbia Court of Appeals recently held that a condominium association acting on its six-month super-priority lien for unpaid condominium assessments pursuant to § 42-1903.13(a)(2) of the District of Columbia Condominium Act (the “D.C. Condo Act”) may not conduct its foreclosure sale subject to a first deed of trust lien, even if the

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Illinois App. Court (1st Dist) Rules HOA Lien Extinguished by Payment 1 Year After Foreclosure Sale

The Appellate Court of Illinois, First District recently held that a foreclosing mortgagee’s payment of post-foreclosure sale assessments nearly a year after the sale date confirmed the extinguishment of a condominium association’s lien for pre-sale assessments created under the Illinois Condominium Property Act. In so ruling, the First District found that the plain language of

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9th Cir. Holds Party That Obtains Cell Number Indirectly May Have TCPA Consent

The U.S. Court of Appeals for the Ninth Circuit recently held that calls from a survey company that received the called party’s contact information through an intermediary did not violate the federal Telephone Consumer Protection Action (TCPA) because the called party provided prior express consent. In so ruling, the Court held that “a party that receives

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4th Cir. Allows Chapter 13 Lien Stripping When No Proof of Claim Filed

The U.S. Court of Appeals for the Fourth Circuit recently held that a completely unsecured lien may be stripped off in a Chapter 13 bankruptcy proceeding under 11 U.S.C. § 1322(b) even though a proof of claim has not been filed. A copy of the opinion in Edwin Burkhart v. Nancy Spencer Grigsby is available

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Mass. SJC Holds Statutory Power of Sale Allowed Despite Omission of ‘Statutory Power of Sale’ in Mortgage

The Massachusetts Supreme Judicial Court recently held that the “statutory power of sale” as defined in M.G.L. ch. 181, § 21 was incorporated by reference in a lender’s form reverse mortgage instrument even though the lender used the term “power of sale” rather than the specific term “statutory power of sale.” Accordingly, the SJC ruled,

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6th Cir. BAP Holds Constructive Notice Did Not Bar Bankruptcy Trustee’s Challenge to Defectively Executed Mortgage

The Bankruptcy Appellate Panel of the Sixth Circuit recently held that the constructive notice provisions of section 1301.401 of the Ohio Revised Code do not limit a bankruptcy trustee’s avoidance powers as a hypothetical judgment lien creditor under section 544(a)(1) of the federal Bankruptcy Code. A copy of the opinion in In re Oakes is

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Illinois App. Court (1st Dist) Holds City May Not Obtain Money Judgment for Demolition Expenses Merely by Filing Motion

In a case of first impression, the Illinois Appellate Court for the First District recently held that the Illinois Unsafe Buildings Act does not authorize a municipality to seek a money judgment for demolition expenses against the owner of a property by simply filing a motion in the same demolition action. In so ruling, the

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5th Cir. Holds Compliance With Calif. Probate Code Makes Bank Immune from Wrongful Disbursement Claim

The U.S. Court of Appeals for the Fifth Circuit recently held that, although a bank had actual notice of an heir’s claim to her decedent father’s account funds, the bank’s compliance with the post-death affidavit provisions of California Probate § 13106(a) rendered the bank immune from liability for wrongful disbursement of the funds. In any

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Illinois App. Court Rejects Borrower’s Constitutional Challenge to Illinois Statutory Form Foreclosure Complaint

The Appellate Court of Illinois, First District, recently held that the form foreclosure complaint provided by the Illinois Mortgage Foreclosure Law (IMFL) complies with procedural due process guarantees of the Fifth and Fourteenth Amendments of the United States Constitution, and does not violate the Illinois Constitution’s separation of powers doctrine by usurping the Illinois judiciary’s

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6th Cir. Rejects Borrowers’ Attempt to Invalidate Deed of Trust Based on Faulty Acknowledgement

The U.S. Court of Appeals for the Sixth Circuit recently held that two borrowers lacked standing to challenge the validity of a deed of trust in a lien priority dispute interpleader action filed by the foreclosure trustee, as the borrowers did not dispute that they executed the deed of trust, the lien placed on the

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5th Cir. Rejects Borrower’s Challenge to Lender’s Auto-Pay Services Under Texas DTPA

The U.S. Court of Appeals for the Fifth Circuit recently affirmed the dismissal of a borrower’s claims against her lender arising out of a foreclosure, holding among other things that alleged discrepancies as to the lender’s automatic payment withdrawal services did not state a claim under the Texas Deceptive Trade Practices Act (DTPA). In so

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7th Cir. Holds Customer Did Not Agree to Online Contract, Adopts ‘Reasonable Communicativeness’ Test

The U.S. Court of Appeals for the Seventh Circuit recently held that, under Illinois law, a website must provide a user reasonable notice that use of the website and a click on a button constitutes assent to the terms of an agreement, in order for the agreement to be binding. In so ruling, the Seventh

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