The District Court of Appeal of the State of Florida, First District, recently affirmed the trial court’s entry of a final judgment of foreclosure, holding that because the complaint included at least some installment payments within five years of the filing of the complaint, the action was not barred by res judicata or the statute of limitations. A copy of the opinion in Forero v. Green Tree Servicing, LLC is available at: Link to Opinion. Husband and wife borrowers defaulted on their mortgage loan in December 2008. The mortgagee filed a foreclosure action in February 2010, but voluntarily dismissed the case in…
Posts published in “Mortgage Banking Foreclosure Law”
Mortgage Banking Foreclosure Law
The U.S. Court of Appeals for the Ninth Circuit recently held that mortgage underwriters were not exempt under the federal Fair Labor Standards Act (FLSA) and were therefore entitled to overtime compensation for hours worked in excess of 40 per week. After analyzing the specific details of the underwriters’ responsibilities, the Ninth Circuit panel concluded that, because the underwriters’ primary job duty did not relate to their employer bank’s management or general business operations, the administrative employee exemption to the FLSA’s overtime requirements did not apply. Recognizing that there was a split between the Second Circuit and Sixth Circuit as…
The U.S. District Court for the Northern District of Illinois recently held that a title insurer may exclude coverage under the exception for defects “created, suffered, assumed, or agreed to by the insured claimant” without intentional or wrongful conduct by the insured. In so ruling, the Court also held that the Illinois statute for bad faith denial of coverage by insurers did not apply to title insurers. A copy of the opinion in Bank of America, NA v. Chicago Title Insurance Company is available at: Link to Opinion. In 2007, a developer sought to purchase real estate in Yorkville, Illinois, to…
The District Court of Appeal of the State of Florida, Second District, recently held that where loan documents provided that Florida law applied to foreclosure claims, the trial court erred in applying Texas law because the deficiency claim in the case was part of the Florida foreclosure process. A copy of the opinion in Bonita Real Estate Partners, LLC v. SLF IV Lending, L.P. is available at: Link to Opinion. Two limited liability companies and their principals borrowed $6.1 million to develop real estate, signing a promissory note, mortgage and personal guarantees. The loan documents provided that they would be…
The U.S. Court of Appeals for the Fourth Circuit recently held that the federal Servicemembers Civil Relief Act (SCRA) does not apply to a mortgage loan obligation incurred while a borrower is a member of the military, even where he subsequently leaves and then later re-enlists in the military prior to a foreclosure sale. A copy of the opinion in Sibert v. Wells Fargo Bank, NA is available at: Link to Opinion. The borrower obtained a mortgage loan to purchase his home from the lender while he was serving in the U.S. Navy. After his discharge from the Navy, the borrower…
The District Court of Appeal of the State of Florida, Fourth District, recently affirmed a final judgment in favor of a borrower because the foreclosing mortgagee failed to file the original allonge to the note, holding that as a result the mortgagee lacked standing to foreclose. A copy of the opinion in U.S. Bank National Assoc., etc. v. Jean Kachik is available at: Link to Opinion. A mortgagee sued to foreclose the mortgage, attaching copies of the promissory note and an “Endorsement and Assignment of Note” to the complaint. The endorsement was “blank.” At trial, the mortgagee offered the original note…
The Illinois Court of Appeals, First District, recently determined that a borrower in a foreclosure matter did not have standing to challenge whether the mortgagee’s notice of sale was in violation of the Illinois Human Rights Act (IHRA). Following the entry of a judgment of foreclosure, the plaintiff mortgagee published its notice of sale, in which the mortgagee required that anyone attending the sale possess a “photo identification issued by a government agency.” The mortgagee purchased the property at the sale, and then moved for an order confirming the sale. The borrower objected to the mortgagee’s motion, arguing that the…
The District Court of Appeal of Florida, Fifth District, recently held that a foreclosure complaint was not time-barred despite the initial default occurring outside Florida’s five-year statute of limitations, because the mortgagee both alleged and proved that the borrowers defaulted on every payment due from the date of the initial default. In so ruling, the 5th DCA applied the standards set forth by the Florida Supreme Court in Bartram v. U.S. Bank Nat’l Ass’n, to conclude that the foreclosure action was not barred by the five-year statute of limitations under Fla. Stat. § 95.11(2)(c), because the mortgage was in a…
The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Sixth Circuit recently held that the bankruptcy court lacked subject matter jurisdiction under the Rooker-Feldman doctrine to void the foreclosure of a mortgage lien that was executed by the debtors before bankruptcy, but recorded while the automatic stay was in effect. In so ruling, the BAP held that the mortgage was effective upon signing, the pre-petition lien survived the bankruptcy, the creditor’s exercise of its in rem rights did not implicate the discharge order, and the bankruptcy court incorrectly applied the exception to the Rooker-Feldman doctrine recognized in…
The U.S. Court of Appeals for the Eighth Circuit recently affirmed summary judgment against a former husband borrower and his ex-wife on their claims under the Missouri Merchandising Practices Act (MMPA) and for tortious interference with contract. In so ruling, the Court held that the foreclosure of the plaintiffs’ home loan was justified due to the husband’s misrepresentation on the modification application that he, not his ex-wife who was responsible for making the payments, was experiencing financial hardship and could not afford the loan payments. A copy of the opinion in Dale Wheatley v. JP Morgan Chase Bank is available…
The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Sixth Circuit recently held that a mortgage foreclosure deficiency judgment lien may be avoided under 11 U.S.C. § 522(f)(2), reversing the bankruptcy court’s ruling to the contrary. A copy of the opinion in In re Antoinette Pace is available at: Link to Opinion. The debtor filed a chapter 13 bankruptcy, listing her residence in Ohio on her schedules with a value of $147,630. She also claimed the residence as exempt homestead in the amount of $132,900, the maximum allowed pursuant to Ohio law. On her Schedule D, the debtor…
The U.S. Court of Appeals for the Eighth Circuit recently reversed the dismissal of a borrower’s lawsuit against his mortgagee for failing to restore his title after a non-judicial foreclosure and subsequent execution of a loan modification agreement, holding that the borrower’s claims were not time-barred and accrued only when he tried to sell the home more than five years after the modification agreement. A copy of the opinion in White v. CitiMortgage, Inc. is available at: Link to Opinion. A borrower refinanced his home mortgage loan in 2003, and defaulted in 2008. The loan servicer gave the borrower notice and…