The U.S. Court of Appeals for the Fifth Circuit recently held that a mortgagee did not waive or abandon its right to foreclose by accepting payments after a default by the borrower, but before acceleration, when no representations were made to the borrower that payments less than the full obligation would bring the loan current. A copy of the opinion in Martin v. Federal National Mortgage Association is available at: Link to Opinion. A borrower obtained a loan secured by a deed of trust (“DOT”). The DOT obligated the borrower to make monthly payments and gave the mortgagee the right to accelerate…
Posts published in “Mortgage Banking Foreclosure Law”
Mortgage Banking Foreclosure Law
Withdrawing and substituting its prior opinion in Deutsche Bank Trust Co. America v. Beauvais, 40 Fla. L. Weekly D1 (Fla. 3d DCA Dec. 17, 2014), the District Court of Appeal of the State of Florida, Third District, on April 13 held that: Under Florida law, dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default, if the subsequent default occurred within five years of the subsequent action; and Whether a dismissal is with or without prejudice is irrelevant to a lender’s right to file subsequent foreclosure actions on subsequent…
The U.S. Court of Appeals for the Sixth Circuit recently affirmed a district court’s dismissal of a qui tam action alleging that a bank violated the federal False Claims Act when it certified that it had engaged in loss mitigation and sought FHA insurance payments on defaulted loans, holding that because the factual basis of the claim was publicly disclosed before suit was filed, only the government could pursue the action in its own name. A copy of the opinion in United States ex rel. ABLE v. U.S. Bank, N.A. is available at: Link to Opinion. The defendant bank participated in…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action, holding that the mortgagee was deprived of due process because the dismissal was entered sua sponte and without notice or opportunity to be heard, and because correction of an erroneous legal description did not require dismissal of the entire case. A copy of the opinion in Federal National Mortgage Association v. Astrid Sanchez, Botanica/Sea Plum Master Association, Inc., Sandpiper Cove at Botanica Condominium Association, Inc., and Carlos Navas is available at: Link to Opinion. A homeowner defaulted and the…
The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s denial of a borrower’s post-verdict motions following the trial of federal Truth in Lending Act and common law fraud allegations. In so ruling, the Second Circuit held that: (1) the trial court properly admitted “habit and routine practice” evidence, over the borrower’s objection that this evidence was actually inadmissible “propensity evidence;” and (2) the trial court properly admitted photocopies of various loan documents into evidence, over the borrower’s objections of lack of authentication and the “best evidence” rule. A copy of the opinion in Crawford v. Franklin…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed summary judgment of foreclosure in favor of a mortgagee, holding that the plaintiff mortgagee failed to satisfy its heightened burden of proving the absence of any genuine issue of material fact on the issue of standing applicable because the motion for summary judgment was filed before the defendant answered the complaint, and the plaintiff mortgagee was on notice at the time that the defendant was contesting standing. A copy of the opinion in Statewide Homeowners Solutions, LLC v. Nationstar Mortgage, LLC is available at: Link to Opinion. A homeowners…
The Third District Court of Appeal, State of Florida, recently reversed the dismissal of a mortgage foreclosure action based on the mortgagee’s failure to provide the name of the corporate representative who was to testify at trial, holding that dismissal was an overly harsh sanction given that no prejudice was shown. A copy of the opinion in Deutsche Bank Nat’l Trust Co. v. Perez, et al. is available at: Link to Opinion. In October 2009, the trustee of a mortgage-backed securities trust sued to foreclose a mortgage on real property in Miami-Dade County, Florida. In October 2014, the case was set for…
In a consolidated multi-district litigation putative class action involving allegations of improper handling of HAMP loan modifications by a large mortgage servicer, the U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court’s order denying the putative class plaintiffs’ motion for class certification, holding that the district court correctly determined that individual issues predominated over common issues. The opinion was not published, and is non-precedential. A copy of the opinion in Hanna Bernard v. CitiMortgage Inc. is available at: Link to Opinion. Among other things, the putative class plaintiffs alleged that the defendant servicer supposedly improperly denied permanent…
The U.S. District Court for the Southern District of Alabama recently granted summary judgment in favor of a mortgage loan servicer and the trustee of a mortgage backed securities trust in a putative class action alleging violations of the federal Fair Debt Collection Practices Act (FDCPA), ruling that the “bona fide error” defense applied to the servicer and that the trustee was not a “debt collector” under the FDCPA. A copy of the opinion in Arnold v. Bayview Loan Servicing, LLC is available at: Link to Opinion. A borrower defaulted on his mortgage loan and filed a petition under Chapter 7 of…
The Supreme Court of Ohio recently held that a mortgage defectively executed but properly recorded still provides constructive notice of its contents. A copy of the opinion in In re Messer is available at: Link to Opinion. The borrowers executed a promissory note and a mortgage. The notary acknowledgment on the mortgage was left blank. The mortgage was recorded with the notary section incomplete. The mortgage was later assigned. The borrowers later initiated a Chapter 13 bankruptcy asking to avoid the mortgage as defectively executed under Ohio Rev. Code § 5301.01. The U.S. Bankruptcy Court for the Southern District of Ohio…
The U.S. Court of Appeals for the Eleventh Circuit recently upheld the dismissal of federal Truth in Lending Act (TILA) allegations that sought to hold the assignee of a mortgage loan liable for the mortgage loan servicer’s supposed failure to comply with the borrower’s written request for a payoff statement. In so ruling, the Court held that TILA creates a cause of action against an assignee where violation is “apparent on the face of the disclosure statement provided in connection with [a mortgage loan] transaction pursuant to this subchapter,” and that an alleged failure to provide a payoff statement is…
The District Court of Appeal of the State of Florida, Fifth District, recently reversed an involuntary dismissal of a mortgage foreclosure action, holding that the trial court erroneously ruled that the mortgagee failed to comply with the mortgage’s pre-foreclosure notice requirements, and erroneously excluded from evidence the prior loan servicer’s business records. A copy of the opinion in The Bank of New York v. Johnson is available at: Link to Opinion. A borrower defaulted on her mortgage and the mortgagee sued to foreclose. The foreclosure action proceeded to a non-jury trial, at which an employee of the mortgage servicer testified about the process…