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 filing any future pleadings, motions or requests for relief in the Supreme Court related to his foreclosure proceedings, unless filed in good faith by an attorney in good standing. A copy of the opinion in Rivas v. Bank of New York Mellon is available at: Link…
Posts published in “Foreclosure”
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, the lender was able to utilize the Massachusetts statutory power of sale. A copy of the opinion in James B. Nutter & Company v. Estate of Murphy is available at: Link to Opinion. In 2007 and 2008, three elderly borrowers each obtained loans from the same lender…
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 an automatic telephone dialing system (“ATDS”) under the federal Telephone Consumer Protection Act. Accordingly, the Court entered summary judgment in favor of the defendant mortgage loan servicers. A copy of the opinion in Ferrer v. Bayview Loan Servicing, LLC et al. is available at: Link…
Illinois Supreme Court Holds Foreclosure Deadline to Challenge Service Tolled While Action Dismissed
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 opinion in Bank of New York Mellon v. Laskowski is available at: Link to Opinion. The plaintiff mortgagee filed a residential mortgage foreclosure complaint against, among others, the borrower and a limited liability company. The mortgagee filed an affidavit of service by publication indicating that,…
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 extended two loans secured by the same real estate, and it was apparent that the expectation was that the larger mortgage loan would have priority. The trial court had held that the defendant was the senior lienholder even though the defendant’s mortgage was indexed after…
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 determine what effect, if any, the non-judicial proceeding had under the doctrines of issue and claim preclusion. A copy of the opinion in Mayotte v. U.S. Bank National Association is available at: Link to Opinion. The borrower signed a note secured by a deed of trust. The…
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 trial court’s order of summary judgment by concluding there were issues of fact as to whether the plaintiff complied with HUD’s face-to-face interview requirement at 24 C.F.R. § 203.604. As to the standing issue, the Second District held that the plaintiff established a prima facie…
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 the plaintiff mortgagee’s differing theories of relief based upon foreclosure sale and deficiency judgment and enforcement of the note itself in past suits, dismissal was warranted under Illinois law, because all of the complaints arose from a single group of operative facts and sought to…
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 estoppel doctrine when it concluded that the borrowers’ failure to disclose their attorney’s fee claim in their Chapter 11 bankruptcy schedules barred the fee claim. A copy of the opinion in Anfriany v. Deutsche Bank National Trust is available at: Link to Opinion. In 2008, the…
9th Cir. Holds Temporary Stay of Foreclosure Not Enough to Satisfy Diversity ‘Amount in Controversy’
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, the Court held that, for claims which merely seek a temporary stay of a foreclosure sale, the amount in controversy is not the value of the underlying loan. A copy of the opinion in Corral v. Select Portfolio Servicing, Inc. is available at: Link to Opinion.…
The U.S. Court of Appeals for the Seventh Circuit recently held that, following the confirmation of a foreclosure sale in Illinois, the only remedy available to a borrower under 15 U.S.C. § 1635 was damages, and therefore the one-year limitation period under 15 U.S.C. § 1640(e) applied and his claims were barred despite the fact that he provided rescission notices within three years of the loan closing, and despite the fact that the parties engaged in back-and-forth communications after the demands were first sent. Accordingly, the Seventh Circuit affirmed the dismissal of the borrower’s claims by the trial court. A…
Following rulings from other appellate courts in other appellate districts, Florida’s Third District Court of Appeal recently reversed a trial court’s order involuntarily dismissing a mortgagee’s foreclosure against a borrower holding that the mortgagee’s witness from its current mortgage servicer laid a sufficient foundation at trial to admit business records from a prior mortgage servicer necessary to prove a default under Florida’s business records exception to hearsay. A copy of the opinion in Deutsche Bank v. de Brito is available at: Link to Opinion. In 2006, a mortgagee provided the borrower with an adjustable rate note and mortgage that contained a…