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Posts tagged as “Mortgage Law”

Illinois App. Court (3rd Dist) Confirms Foreclosure on Mortgagors’ Tenancy by the Entirety When Only One Borrower Signed Note

The Appellate Court of Illinois, Third District, recently held that a mortgagee could foreclose on a husband and wife’s property held as tenants by the entirety despite that only the husband signed the note. In reaching its decision, the Court relied on the fact that the wife signed the mortgage with her husband, and was aware of the existence and the substance of the note. A copy of the opinion in OneWest Bank FSB v. Cielak is available at:  Link to Opinion. The borrowers, husband and wife, purchased a home in Illinois. The borrowers acquired the real estate as tenants by…

5th Cir. Holds No Private Right of Action Under HUD Regulations for HECMs

The U.S. Court of Appeals for the Fifth Circuit recently held that HUD reverse mortgage regulations and guidelines do not give the borrower a private cause of action unless the regulations are expressly incorporated into the loan agreement. A copy of the opinion in Johnson v. World Alliance Financial Corp. et al is available at:  Link to Opinion. A male borrower entered into a Home Equity Conversion Mortgage (HECM) with the defendant, lender. The loan was secured by the male borrower’s home, which already had two liens on it.  One of the liens was held by the male borrower’s ex-wife. Later, the…

Fla. App. Court (4th DCA) Holds Lis Pendens Expires at Judgment of Foreclosure

The District Court of Appeal of Florida, Fourth District, recently held that real property liens arising after a final judgment of foreclosure are not discharged by Florida’s lis pendens statute. A copy of the opinion in Ober v. Town of Lauderdale-by-the-Sea is available at:  Link to Opinion. A mortgagee recorded a lis pendens on real property as part of a foreclosure proceeding against a homeowner. Subsequently, the mortgagee obtained a final judgment of foreclosure. However, the foreclosure sale was not conducted for some four years following entry of the judgment of foreclosure. After the foreclosure, and before the foreclosure sale occurred, the…

6th Cir. Confirms No TILA Right to Cancel for Failure to Disclose Assignment of Loan

The U.S. Court of Appeal for the Sixth Circuit recently confirmed that a mortgagee’s alleged failure to notify borrowers of an assignment of the loan does not give rise to a right to cancel under the federal Truth In Lending Act (TILA). A copy of the opinion in Robertson v. US Bank, NA is available at:  Link to Opinion. A mortgagee initiated a foreclosure action, and the borrowers responded with a “notice of rescission” to the mortgagee and the mortgagee’s counsel, alleging that the mortgagee had violated the federal Truth in Lending Act and that the mortgagee lacked standing to foreclose.…

9th Cir. Holds Nevada HOA Lien Foreclosure Statute Facially Unconstitutional

The U.S. Court of Appeals for the Ninth Circuit recently held that the Nevada homeowners association foreclosure statute facially violated mortgage lenders’ constitutional due process right, and that the Nevada legislature’s enactment of a statute governing foreclosure of liens by HOAs constituted “state action.” A copy of the opinion in Bourne Valley Court Trust v. Wells Fargo Bank, N.A. is available at: Link to Opinion. A purchaser of Nevada real estate who acquired title at a homeowners association foreclosure sale brought an action in Nevada state court seeking to quiet title and a declaration against the mortgage lender, as holder of…

ND Illinois Holds HPA Preempts Breach of Contract, UDAP Claims ‘Relating to’ HPA’s Requirements

The U.S. District Court for the Northern District of Illinois recently held that the federal Homeowners Protection Act, 12 U.S.C. § 4901, et seq., preempts state law UDAP and breach of contract claims, when the state law claims are based on allegations “relating to” the HPA’s requirements. A copy of the opinion in Ciolino v. Seterus, Inc. is available here:  Link to Opinion. A borrower purchased private mortgage insurance (PMI) in connection with his mortgage loan.  He received the required PMI disclosure form, notifying him that his PMI policy would automatically terminate on the date his principal balance was scheduled…

Mass. SJC Holds HOA/COA May Obtain Successive 6-Month Priority Liens for Unpaid Common Expenses

The Supreme Judicial Court of Massachusetts recently held that a homeowners association may establish and enforce multiple contemporaneous liens for unpaid common expenses, each with a six-month period of priority over the first mortgage, by filing successive legal actions. A copy of the opinion in Drummer Boy Homes Association, Inc. v. Britton is available at:  Link to Opinion. The borrowers purchased a condominium unit, and later began withholding payment of their monthly common expense assessments because of a dispute concerning parking rules and related fines. The condominium association commenced an action to recover the unpaid common expenses and to enforce a…

10th Cir. Rejects Lender’s Title Insurance Action Involving Municipal Tax Lien

The U.S. Court of Appeals for the Tenth Circuit recently held that, under Utah law, only the actual levy of a municipal tax assessment on the property constitutes a defect in, or a lien or encumbrance on, title to the insured property. Because the levy of assessment at issue occurred after the title policy was issued, the Tenth Circuit held that the title insurance policy did not cover a loss incurred when a municipality foreclosed on the insured property. A copy of the opinion in BV Jordanelle, LLC v. Old Republic National Title Insurance Company is available at:  Link to Opinion. In…

Nevada Fed. Court Denies Class Cert. on ‘Ascertainability’ Grds., Fannie/Freddie Liens Not Extinguished by HOA Foreclosure

The U.S. District Court for the District of Nevada recently confirmed that a homeowner association’s foreclosure of its superpriority lien cannot extinguish a property interest of Fannie Mae or Freddie Mac while those entities are under the Federal Housing Finance Agency’s (FHFA) conservatorship. In so ruling, the Court also denied class certification, holding that the issue of whether Fannie Mae or Freddie Mac held an interest in the property at issue at the time of a homeowner association foreclosure sale presents an impermissible individualized factual inquiry that would require “mini-trials” as to each affected property. A copy of the opinion…

Fla. App. Court Rules New Foreclosure Plaintiff Following Transfer of Servicing Failed to Prove Standing

The District Court of Appeal of the State of Florida, Fourth District, recently reversed summary judgment in favor of a mortgagee, holding that a genuine issue of material fact as to whether the original plaintiff or the substituted successor in interest held the note when the complaint was filed precluded summary judgment, and thus that the borrower’s lack of standing defense was not refuted. A copy of the opinion in Craven-Lazarus v. Pennymac Holdings, LLC is available at:  Link to Opinion. A mortgagee sued to foreclose its mortgage. The complaint alleged that it was “entitled to enforce the Note as a…

Ohio Supreme Court Holds Foreclosure Standing Requires Rights to Note, Mortgage, Including Post-Bankruptcy Discharge

The Supreme Court of Ohio recently held that, when debt on promissory note secured by mortgage has been discharged in bankruptcy, the holder of the note may not pursue collection against the maker of note, but the mortgagee has standing to foreclose on the collateral property, and can use the amounts due on the note as evidence to establish that it may collect from the forced sale of the property. The Court also held that, regardless of whether the creditor can obtain a personal judgment on the note against the borrowers, the creditor must still prove that it is the…

Calif. App. Court Holds Alleged Foreclosure by Wrong Beneficiary Enough for Wrongful Foreclosure, No Tender Required

The Court of Appeals of California, Fourth District, recently held that a homeowner who has been foreclosed on by one with no right to do so — by those allegations alone — sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. Citing Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, the Appellate Court also held that, because the plaintiff properly alleged the foreclosure was void and not merely voidable, tender was not required to state a cause of action for quiet title or for cancellation of instruments. A copy of the opinion in Sciarratta v.…