Duane Morris LLP: N.J. Superior Court Finds That Condemning Authority Is Not Required to Negotiate with Mortgagee Prior to Initiation of Eminent Domain Action

In a recent decision, the Appellate Division of the Superior Court of New Jersey has held that New Jersey law does not require a condemning authority to negotiate with a mortgagee, which has obtained a final judgment of foreclosure on the subject property, prior to the initiation of an eminent domain...

Changing Tide In Foreclosure Litigation? Courts Taking Closer Look When Defendants Assert Lack Of Standing At Last Minute

In a series of recent decisions, New Jersey courts appear to be taking a stance against defendants raising, as a last-minute defense, that a party lacks standing to foreclose. This is good news for lenders and their assignees, who, prior to these decisions, faced the prospect of proceeding to final judgment...

Troutman Sanders LLP: North Carolina Court of Appeals Forestalls Borrower’s Attempt to Collaterally Attack Foreclosure Proceeding

By John C. Lynch and D. Kyle Deak On Plaintiff's appeal of dismissal of his Complaint seeking to challenge the authority of the lender to foreclose, the Court of Appeals affirmed the Superior Court's dismissal and found that Plaintiff's failure to properly and timely appeal the Order of...

Little Mortgage Relief in Arizona

BUDGETS IN BRIEF: From mid-2011 through the end of 2012, ARIZONA spent only 6 percent of the $268 million it was allocated to help homeowners avoid foreclosure, despite having the nation's second highest foreclosure rate during much of the mortgage crisis. The state spent more than any other, however...

Borrower Must File Suit before Foreclosure To Exercise Rescission Rights, Eighth Circuit Holds

By the Ballard Spahr LLP Mortgage Banking Group The Eighth Circuit recently held that a borrower must file suit before foreclosure to exercise rescission rights under TILA. The court now joins the Ninth and Tenth Circuits in holding that notice alone is not sufficient. In Hartman v. Smith, [ enhanced...

Statewide Judicial System Report Issued on N.Y. Foreclosure Cases

Earlier this month, the Chief Administrative Judge of New York's Unified Court System issued a report on the status of foreclosure cases in the state judicial system. The 2013 report contains important information about how the state's courts are handling the large volume of foreclosure cases...

SJC Rules Housing Court Can Hear Title Challenges In Post-Foreclosure Evictions

Courts Will Likely Face Increased Caseload Giving an early Christmas present to distressed homeowners, the Supreme Judicial Court ruled last month that a foreclosed upon homeowner may challenge a bank’s title and foreclosure sale irregularities through counterclaims in a post-foreclosure...

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – February 7, 2014 Update

Updates for the Week of February 7, 2014 When all tax sale notices addressed to the property owner are returned “undeliverable,” due process requires the county to notify “occupant” at the property address . Terry Holton bought a condominium in Kansas City (Jackson County...

Short Sale Sellers May Face Huge Tax Bill In 2014

Congress Fails To Extend Mortgage Forgiveness Debt Relief Act for 2014 The ringing of the New Year may not have been a welcome sound to distressed homeowners who were not able to complete short sales by the close of 2013. Unfortunately, Congress failed to extend the December 31, 2013 expiration...

First Circuit Ruling in Foreclosure Litigation May Help Lenders Facing HAMP-Related Claims

By the Ballard Spahr LLP Mortgage Banking Group The law is well settled that borrowers do not have a direct right of action under the Home Affordable Modification Program (HAMP) against a lender that fails to offer a loan modification. A split of authority continues, however, on whether a lender...

Proceed with Caution When Foreclosing in Washington State: Split Decisions Regarding Deficiency Claims

Last month, the Washington Court of Appeals, Division One, ruled that, notwithstanding the anti-deficiency provision in the state's Deeds of Trust Act, a lender can pursue a deficiency judgment against a guarantor following a non-judicial foreclosure of the property securing the underlying borrower's...

Enfeoff This

Judge (J): We’re here on a motion by BailMeOutBanc for summary judgment in its foreclosure action against Lender Liability Equities LLC. It’s hard to imagine a more straightforward motion. Counsel: what’s the defense? Borrower’s Counsel (BC): Your Honor, there is a fatal defect...

Statute of Limitations Update in Florida Foreclosure Actions: Fifth District Court of Appeals Holds that Each Default Creates a New Case of Action

I. The Opinion On April 25, 2014, the Fifth District Court of Appeals issued an important opinion in U.S. Bank Nat’l Ass’n v. Bartram , No. 5D12-3823, 2014 Fla. App. LEXIS 6057 (Fla. 3d DCA Apr. 25, 2014), [ enhanced version available to lexis.com subscribers ], holding that “a default...

Real Estate Loan Mitigation, Foreclosure, and Mortgagor Tax Liabilities

By Patricia Hughes Mills J.D. LL.M Upon mortgage debt default, the mortgagee's foreclosure or mitigation of the debt yield differing tax consequences to the mortgagor. Moreover, the mortgagor's tax treatment on foreclosure depends, in part, on whether the mortgagor is personally liable...

It's Not "Bad Faith" For Lenders To Stick To The Terms Of Their Agreements With Borrowers

Last Friday, the Appellate Division provided another reminder that it is not “bad faith” for a lender to abide by the terms of its mortgage with a borrower. In Warner v. Sovereign Bank , borrowers fell behind on their residential mortgage and contacted their lender to request a modification...

New Jersey Law Requires Creditors to Maintain Vacant Property During Pending Foreclosures

New Jersey municipalities are now authorized to penalize creditors who do not address code violations or abate nuisances on vacant or abandoned residential property subject to a pending foreclosure action. Pursuant to Assembly Bill A347 , New Jersey municipalities will now be allowed "to require...

The Doctrine of Equitable Assignment is Alive and Well in Wisconsin

That was the holding of the Wisconsin Supreme Court in the opinion in Dow Family, LLC v. PHH Mortgage Corporation , 2014 WI 56, [ enhanced version available to lexis.com subscribers ]. The facts of the case are similar to thousands of foreclosure cases prosecuted in Wisconsin every year, but with a couple...

Maine Supreme Court Decision Limits Scope of MERS' Ability to Assign Mortgages

On July 3, 2014, the Maine Supreme Judicial Court issued a ruling in Bank of America, N.A. v. Greenleaf , 2014 ME 89 (Me. July 3, 2014), [ enhanced version available to lexis.com subscribers ], significantly affecting the ability of Mortgage Electronic Registration System, Inc. (MERS) to assign mortgage...

Not A Holder In Due Course? Not Necessarily A Standing Problem

By now, all lenders have likely been faced with at least one situation where a borrower alleges that the lender lacked standing to sue on a note because the lender was not the holder of the note. While New Jersey courts have largely eliminated this defense, at least in the post-judgment context (see...

"Just One Victory" By Bank Over Todd Rundgren In Foreclosure Fight

Todd Rundgren is a well known musician, songwriter, and producer. Most of his hits came out in the 1970's and early 1980's and are therefore a bit before my time. However, he was thrust back into the limelight when Liv Tyler shot to fame in the early 1990's as, among other things, the star...

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – August 19, 2014 Update

A Missouri condominium association’s lien for an unpaid assessment was superior to a deed of trust securing the owner’s refinance loan . In 2004, Trish Carcopa bought a condominium at Parkway Towers in Kansas City, Missouri. In 2006, she refinanced her purchase money loan. After she bought...

Ibanez Update: Land Court Ruling May Clear Defective Titles

It appears we may be nearing the end of the misery resulting from the infamous U.S. Bank v. Ibanez , [ enhanced version available to lexis.com subscribers ], foreclosure decision, which has caused hundreds if not thousands of title defects across the Commonwealth. A recent Land Court ruling combined...

Gov. Patrick Effectively Kills Act Clearing Titles to Foreclosed Properties

Senate Bill 1987 Would Have Cleared Title For Innocent Homeowners Acceding to the demands of fair housing community activists, Massachusetts Governor Deval Patrick has rejected Senate Bill 1987, An Act Clearing Titles to Foreclosed Properties . The bill would have cleared title of homes affected by...

D.C. Court of Appeals Extinguishes Lender’s Mortgage Lien Following Association Lien Foreclosure

By Roger D. Winston and Joseph E. Lubinski A recent decision by the District of Columbia Court of Appeals brings into renewed focus the tension between condominium and homeowner associations and lenders when it comes to payment of delinquent association assessment charges. In Chase Plaza Condominium...

HOA Lien Extinguishes First Deed of Trust in Foreclosure, Nevada Supreme Court Holds

By Abran Vigil and Matthew D. Lamb On the heels of a recent D.C. Court of Appeals ruling , [ enhanced version available to lexis.com subscribers ], the Nevada Supreme Court issued an opinion last Thursday holding that a homeowners association (HOA) lien is a true super-priority lien that, if foreclosed...