The Appellate Court of Illinois, Second District, recently held that even though the Illinois Residential Mortgage License Act (“IRMLA”) was applicable to a lender that only made one loan in Illinois, an amendment to the IRMLA provided an exception to the law of the case doctrine and under the amendment the mortgage was not void merely because the lender was not licensed under the IRMLA at the time the loan was extended. A copy of the opinion in First Mortgage Company v. Dina is available at: Link to Opinion. As you may recall, in First Mortgage Co. v. Dina, 2014 IL…
Posts published in “Foreclosure”
The California Court of Appeal for the Second District recently held that the mortgage lender’s purchase at foreclosure sale of a leasehold estate – identified in the deed of trust by reference to the lease – did not constitute an express agreement to assume the lease. A copy of the opinion in BRE DDR BR Whittwood CA LLC v. Farmers and Merchants Bank of Long Beach is available at: Link to Opinion. In December 2006, the original owner of a shopping center entered into a 15-year lease with the tenant for restaurant space. After a series of transactions, the shopping center was…
In an appeal involving an amicus filed by a national mortgage lending trade association, the District Court of Appeal of the State of Florida, Fourth District, recently reversed a final judgment of foreclosure in favor of a mortgagee, holding that the mortgagee failed to prove that it had possession of the promissory note when the complaint was filed and thus lacked standing to sue because: (a) despite the admission of the Pooling and Servicing Agreement (PSA) into evidence, the evidence was still insufficient to show that the loan was physically transferred; and (b) there were discrepancies between the copy of…
The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action based on res judicata and the statute of limitations, holding that the Florida Supreme Court’s recent ruling in Bartram v. U.S. Bank National Association and its progeny controlled. In so ruling, the Court confirmed that a second foreclosure action is not barred by the statute of limitations or res judicata where continuing payment defaults occurred within the five years preceding the filing of the second foreclosure action. A copy of the opinion in HSBC Bank USA, National Assoc., etc.…
The Appellate Court of Illinois, First District, recently held that where the beneficiary of a land trust filed a motion to intervene in a foreclosure, the trial court did not abuse its discretion in denying the motion to intervene because the beneficiary filed the motion after the trial court had entered the order confirming the foreclosure sale. A copy of the opinion in Urban Partnership Bank v. Chicago Title Land and Trust Company is available at: Link to the Opinion. A mother and father created a land trust for their residence with the property rights to transfer to their four…
The U.S. Court of Appeals for the Fifth Circuit held that the trial court had jurisdiction to hear a case based on a final foreclosure order entered in Texas state court, and that the borrowers’ due process rights were not violated where the state court entered a foreclosure order without first having a hearing, in violation of the state statute. Because the foreclosure order was valid, the trial court correctly found the foreclosing mortgagee was entitled to quiet title. Accordingly, the Fifth Circuit affirmed the ruling of the trial court entering summary judgment in favor of the defendant mortgagee and against…
The Supreme Court of New Jersey reversed the decision of the Appellate Court, and held that a settlement that a borrower and a lender reached during mediation pursuant to the Residential Mortgage Foreclosure Mediation Program was enforceable because the borrower fulfilled all contingent terms making the agreement permanent. A copy of the opinion is available at: Link to Opinion. The borrower obtained a home mortgage loan from the lender (“bank”). In 2006, the borrower defaulted on her loan. The bank filed a foreclosure complaint in chancery court. In August 2007, the bank obtained a final judgment in the foreclosure action. In 2010,…
In a case of first impression, the Illinois Appellate Court for the First District recently held that the Illinois Unsafe Buildings Act does not authorize a municipality to seek a money judgment for demolition expenses against the owner of a property by simply filing a motion in the same demolition action. In so ruling, the Court found that the plain language of the Act only authorizes a municipality to affirmatively recover the amount of its lien for demolition expenses by either: (1) foreclosing on the lien and obtaining satisfaction through a judicial sale of the property; or (2) filing a…
The Illinois Appellate Court for the First District recently held that the trial court correctly affirmed a judicial sale and denied a motion to reconsider where an intervenor and alleged owner of the property claimed the mortgage was wiped out by the death of the sole mortgagor, who was only a joint tenant in the property at the time the mortgage was executed. In so ruling, the Court noted that the mortgagee provided proper notice and otherwise complied with all procedural rules for foreclosures in Illinois, whereas the intervenor never recorded the deed to himself and did nothing to stop…
The U.S. Court of Appeals for the Ninth Circuit recently affirmed final judgments against corporate borrowers and guarantors in three separate cases, holding that: (a) the Nevada statute limiting the amount of the deficiency recoverable in a foreclosure action was preempted by federal law as applied to transferees of the Federal Deposit Insurance Corporation (FDIC); (b) the plaintiff bank had standing to enforce the loans it acquired from the FDIC; (c) the bank was not issue-precluded from showing that the subject loans had been transferred to it; (d) the bank did not breach the implied covenant of good faith and…
The Court of Appeals of Maryland, the state’s highest court, recently held that a real estate development company’s recording of a declaration for utility infrastructure expenses did not create a lien on the referenced real estate, and instead it should have followed the Maryland Contract Lien Act procedures to create a lien and establish its priority for the delinquent assessments purportedly owed by a mortgagee. A copy of the opinion in Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, LLC is available at: Link to Opinion. A real estate development company purchased land for a 330-lot residential development and…
The U.S. Court of Appeals for the Ninth Circuit recently held that the Federal Foreclosure Bar’s prohibition on nonconsensual foreclosure of assets of the Federal Housing Finance Agency preempted Nevada’s superpriority lien provision and invalidated a homeowners association foreclosure sale that purported to extinguish Freddie Mac’s interest in the property. A copy of the opinion in Berezovsky v. Bank of America is available at: Link to Opinion. In 2013, an investor purchased a home at a homeowners association foreclosure sale for $10,500 and recorded a deed in his name. The purchaser argued that Nevada’s superpriority lien provision, Nev. Rev. Stat. § 116.3116,…