Lenders who purchase mortgage loans after a prior lender loses the note face significant challenges to foreclosing under the commonly accepted practice in Massachusetts. Harmonizing existing Massachusetts Supreme Court precedent with the state UCC may offer a solution.
Posts published by “Kevin M. Hudspeth”
Kevin Hudspeth is a Principal of Maurice Wutscher LLP. He practices in the firm’s Commercial Litigation, Consumer Credit Litigation, Appellate, and Regulatory Compliance groups, predominantly representing national mortgage loan servicers on a wide variety of issues.
Kevin has substantial litigation experience in federal and state courts across the country. He regularly handles cases involving the FDCPA, RESPA, TILA, FCRA, FACTA, the TCPA, the United States Bankruptcy Code, and similar federal and state laws and regulations, as well as cases litigating real estate and commercial business disputes, the Uniform Commercial Code, loan repurchase demands, and contested foreclosures.
Prior to joining Maurice Wutscher, Kevin worked as an Assistant Attorney General with the Office of the Illinois Attorney General, where he litigated actions arising under the Illinois Consumer Fraud and Deceptive Business Practices Act, the Illinois Uniform Deceptive Trade Practices Act, the Illinois Securities Law, and other related statutes. He also previously worked for Fifth Third Bank, N.A., where he coordinated and supervised outside counsel on litigation strategy for contested foreclosures and cases involving default mortgage loan servicing.
Kevin has taught legal research and writing as an Adjunct Professor with Loyola University Chicago School of Law and has published articles in academic and trade journals on a diverse range of topics impacting the consumer lending industry, including issues related to the transfer and enforcement of promissory notes, procedural and evidentiary problems presented in contested mortgage foreclosure cases, substantive law impacting bankruptcy administration, and related matters. He regularly contributes to the American Bar Association’s Business Law Today.
Kevin is admitted to practice law in the States of Ohio and Illinois, and he has represented clients pro hac vice in trial and appellate level jurisdictions throughout the country. For more information see https://mauricewutscher.com/attorneys/kevin-m-hudspeth/
The New York Court of Appeals, the state’s highest court, recently held that (1) a notice of default sent before a foreclosure did not accelerate the mortgage debt for statute of limitation purposes; and (2) in most circumstances, a lender decelerates mortgage debt when it voluntarily dismisses a foreclosure complaint.
The COVID-19 pandemic has turned nearly every facet of American life on its head, and the long-term social changes it will bring about remain up in the air. Even after the economy recovers from the disease’s current impact, many employers could permanently enact far-reaching changes to how — and where — people work. As more employers discover that employees can adequately perform their duties remotely, they may reevaluate the need for expensive office space, which could lead to increased Chapter 11 filings by the owners of office buildings, office parks, and single-asset real estate debtors.
The U.S. Court of Appeals for the Ninth Circuit recently held that bankruptcy courts could confirm Chapter 13 plans proposing estimated time periods to complete the plan if unsecured creditors and the trustee did not object, reversing a contrary ruling from its Bankruptcy Appellate Panel.
The Fair and Accurate Credit Transactions Act prohibits merchants from including, among other information, credit- and debit-card expiration dates on printed receipts. After this provision originally became effective in 2004, plaintiff class-action firms flooded courts with expiration date lawsuits, which courts and others “met with varying degrees of contempt.”
Maine’s Supreme Court recently held that a foreclosing lender’s equitable interest in the mortgage does not by itself equate to ownership of the mortgage and does not allow courts to compel the mortgage’s assignment. Beal Bank USA v. New Century Mortg. Corp., 2019 ME 150, ¶ 15. The opinion revives concerns over the viability of foreclosing Maine mortgages involving Mortgage Electronic Registration Systems, Inc. (MERS).
The U.S. Bankruptcy Court for the Eastern District of Pennsylvania recently held that a debtor alleged a plausible claim against a mortgage loan servicer under the federal Fair Debt Collection Practices Act (FDCPA) based on the servicer's proof of claim filed after obtaining a foreclosure judgment.
Lenders foreclosing FHA-insured mortgages in Ohio often face challenges that contest the lender’s compliance with relevant regulations from the U.S. Department of Housing and Urban Development (HUD). Like most courts throughout the nation, Ohio courts treat HUD regulations as contractual terms incorporated into FHA-insured mortgage loan documents. As Ohio case law on this issue continues to evolve, confusion—and sometimes shock—can arise for out-of-state lenders unfamiliar with the state-specific intricacies of litigating contested foreclosures involving FHA-insured mortgage loans in Ohio.
• A bankruptcy court in Ohio recently applied the incorrect statute of limitations in a mortgage foreclosure action. • Ohio’s statute of limitations jurisprudence has evolved from an accepted legal proposition derived from one opinion to supposedly well-settled law stating the complete opposite in another opinion. • Federal courts interpreting Ohio law must apply the correct statute of limitations to mortgage foreclosure actions. In the bankruptcy case of In re Fisher, 584 B.R. 185, 199–200 (N.D. Ohio Bankr. 2018), the United States Bankruptcy Court for the Northern District of Ohio disallowed a lender’s proof of claim on a mortgage based on…
The U.S. Court of Appeals for the Sixth Circuit recently affirmed a district court’s dismissal of borrowers’ state law negligence and constitutional due process allegations arising from the foreclosure and sale of their home under Michigan’s foreclosure-by-advertisement statute. A copy of the opinion is available at: Link to Opinion. The plaintiff borrowers obtained a mortgage loan in 2008. The mortgage named Mortgage Electronic Registration Systems, Inc. (MERS) as the lender’s nominee and the mortgagee. The note was endorsed in blank to the original lender and was later transferred to a loan servicer. The assignment of mortgage to the loan servicer…