Archive for Foreclosure

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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Fla. Supreme Court Bars Vexatious Borrower from Future Pro Se Filings

The Supreme Court of Florida recently denied a pro se borrower’s petition to invoke the jurisdiction of the Court, and imposed sanctions against him for filing numerous meritless and inappropriate petitions for relief pertaining to trial court foreclosure proceedings to which he is a defendant. In so doing, the Supreme Court barred the borrower from

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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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SD Fla. Holds Servicer’s Calling System Was Not ‘ATDS’ Under TCPA

The U.S. District Court for the Southern District of Florida recently held that a dialing system — which required calls to be manually dialed, could not place calls without human input, and could not dial predictively, or store or produce telephone numbers independently, which in this case was the Avaya X1 Platform — was not

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Illinois Supreme Court Holds Foreclosure Deadline to Challenge Service Tolled While Action Dismissed

Reversing the rulings of both the appellate and the trial courts, the Supreme Court of the State of Illinois recently held that the deadline to file a motion to quash service under the Illinois Mortgage Foreclosure Law (IMFL) did not run while the foreclosure action was dismissed for want of prosecution. A copy of the

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Calif. App. Court (1st Dist) Holds Intent of Parties Determines Priority of Simultaneous Lien Recordings

The Court of Appeal of California, First District, recently concluded that if two deeds of trust are submitted at the same time for recording, the order in which they are indexed is not determinative of priority.  Instead, according to the Court, the intent of the parties will determine priority. In this case, one originating lender

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10th Cir. Holds Borrower’s FDCPA, Other Claims Not Barred by Rooker-Feldman After Non-Judicial Foreclosure

The U.S. Court of Appeals for the Tenth Circuit recently held that the Rooker-Feldman doctrine did not bar the trial court from considering the plaintiff’s claims because she was not challenging or seeking to set aside an underlying non-judicial mortgage foreclosure proceeding under Colorado law. Accordingly, the Tenth Circuit remanded to the trial court to

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Illinois App. Court Rules Factual Question Precluded Summary Judgment in HUD/FHA Face-to-Face Challenge

The Appellate Court of Illinois, Second District recently concluded that two borrowers failed to rebut the foreclosing mortgagee’s prima facie case of standing to pursue foreclosure against the borrowers, and affirmed the trial court’s determination that the plaintiff mortgagee established as a matter of law that it had standing. The Second District, however, reversed the

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Illinois App. Court (1st Dist) Holds Subsequent Foreclosure-Related Action Barred by Illinois ‘Single Refiling’ Rule

The Appellate Court of Illinois, First District, recently dismissed a mortgagee’s “breach of mortgage contract” action as an impermissible second refiling following prior voluntary dismissals of a 2011 foreclosure complaint and 2013 action for breach of the promissory note based upon the same note and mortgage. In so ruling, the Appellate Court concluded that, despite

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Fla. App. Court (4th DCA) Holds Trial Court Improperly Applied Federal Judicial Estoppel Rule to Undisclosed Assets in Bankruptcy

The District Court of Appeal of the State of Florida, Fourth District, recently reversed a trial court’s order denying two borrowers’ request for attorney’s fees and costs on judicial estoppel grounds. In so ruling, the Fourth DCA held that the trial court improperly relied on a Fifth Circuit case and failed to apply Florida’s judicial

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9th Cir. Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity ‘Amount in Controversy’

The U.S. Court of Appeals for the Ninth Circuit recently held that the trial court did not have subject matter jurisdiction based upon diversity over claims which sought a temporary stay of a foreclosure sale pending the review of a loan modification application because the amount of controversy did not exceed $75,000. In so ruling,

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