Archive for Mortgage Law

Calif. App. Court (2nd Dist) Holds Bank Did Not Assume Lease by Being Successful Bidder at Foreclosure Sale

The California Court of Appeals for the Second District recently held that the mortgage lender’s purchase at foreclosure sale of a leasehold estate – identified in the deed of trust by reference to the lease – did not constitute an express agreement to assume the lease. A copy of the opinion in BRE DDR BR

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Fla. App. Court (4th DCA) Holds PSA Insufficient to Prove Foreclosure Standing

In an appeal involving an amicus filed by a national mortgage lending trade association, the District Court of Appeal of the State of Florida, Fourth District, recently reversed a final judgment of foreclosure in favor of a mortgagee, holding that the mortgagee failed to prove that it had possession of the promissory note when the

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Fla. App. Court (4th DCA) Reverses Dismissal of Re-Filed Foreclosure Action Citing Bartram

The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action based on res judicata and the statute of limitations, holding that the Florida Supreme Court’s recent ruling in Bartram v. U.S. Bank National Association and its progeny controlled. In so ruling, the Court confirmed

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1st Cir. Holds Mass. Predatory Home Loan Practices Act Claim Barred by 5-Year SOL

The U.S. Court of Appeals for the First Circuit recently held that a borrower’s claim under the Massachusetts Predatory Home Loan Practices Act (MPHLPA) was barred by the applicable five-year statute of limitations where the loan was extended more than five years before the complaint was filed and the borrower did not allege facts to

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Illinois App. Court (1st Dist) Rejects Land Trust Beneficiary’s Effort to Challenge Foreclosure

The Appellate Court of Illinois, First District, recently held that where the beneficiary of a land trust filed a motion to intervene in a foreclosure, the trial court did not abuse its discretion in denying the motion to intervene because the beneficiary filed the motion after the trial court had entered the order confirming the

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5th Cir. Holds Non-Compliance With Texas Foreclosure Rule Did Not Void Foreclosure

The U.S. Court of Appeals for the Fifth Circuit held that the trial court had jurisdiction to hear a case based on a final foreclosure order entered in Texas state court, and that the borrowers’ due process rights were not violated where the state court entered a foreclosure order without first having a hearing, in

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NJ Supreme Court Enforces Modification Settlement Made Through Residential Mortgage Foreclosure Mediation Program

The Supreme Court of New Jersey reversed the decision of the Appellate Court, and held that a settlement that a borrower and a lender reached during mediation pursuant to the Residential Mortgage Foreclosure Mediation Program was enforceable because the borrower fulfilled all contingent terms making the agreement permanent. A copy of the opinion is available

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8th Cir. BAP Holds Lien on Real Property Held in Tenancy by the Entireties Was Avoidable

The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently affirmed a bankruptcy court’s holding that a creditor held an unenforceable lien against a debtor’s real property because the property was owned by the entireties and the lien was thus avoidable under Bankruptcy Code § 522(f)(1). A copy of the opinion in CRP Holdings v.

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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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Illinois App. Court (1st Dist) Holds Challenges to Foreclosure Failed for Lack of Diligence

The Illinois Appellate Court for the First District recently held that the trial court correctly affirmed a judicial sale and denied a motion to reconsider where an intervenor and alleged owner of the property claimed the mortgage was wiped out by the death of the sole mortgagor, who was only a joint tenant in the

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9th Cir. Holds Nevada Deficiency Limitation Preempted as to Transferees of FDIC

The U.S. Court of Appeals for the Ninth Circuit recently affirmed final judgments against corporate borrowers and guarantors in three separate cases, holding that: (a)  the Nevada statute limiting the amount of the deficiency recoverable in a foreclosure action was preempted by federal law as applied to transferees of the Federal Deposit Insurance Corporation (FDIC);

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5th Cir. Holds Threat of Lawsuit to Collect Partially Time-Barred Debt Did Not Violate FDCPA

In a split decision, the U.S. Court of Appeals for the Fifth Circuit recently decided that attorneys representing a condominium association did not violate the federal Fair Debt Collection Practices Act by threatening non-judicial foreclosure on debt that was partially but not fully time barred. A copy of the opinion in Mahmoud v. De Moss

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