LexisNexis® Legal Newsroom
Recent Changes to Real Estate-Related Laws Reflect Continuing Housing Woes

By Andrea Lee Negroni, Esq. and Mary M. Pfaff The continuing downdraft in the housing economy has stimulated adoption of a wide variety of consumer protection provisions in real estate laws and statutory requirements for accountability by lenders, real estate brokers, loan servicers, appraisers and...

Duane Morris: Nevada Ruling Suggests Lenders Wait Until Foreclosure Before Pursuing Guarantor Claim

In a recent case, the Supreme Court of Nevada agreed that a lender needed to wait until the completion of a foreclosure sale before making a deficiency claim against a guarantor. In Ken L. Templeton Family Trust, et al. v. Eighth Judicial District Court of the State of Nevada, et al. , 2013 Nev. Unpub...

When Can Foreclosing Lenders Be Accused Of Acting In Bad Faith?

In a recent decision, the Chancery Division denied a lender's motion to strike a borrower's contesting answer in a foreclosure lawsuit, holding that the borrower had adequately pled a claim that the lender acted in bad faith. While this decision is unique based on the facts of the underlying...

Foreclosure Notice Bank Owned Property

Federal Court Refuses To Dismiss Government’s Statutory Claims against Mortgage Originators That Allegedly Defrauded HUD

A federal judge recently rejected motions to dismiss in a suit in which the U.S. government alleged that two mortgage originators and their officers defrauded the Department of Housing and Urban Development (HUD) into insuring risky mortgage loans. In its complaint, the government alleged that the...

mortgage loan modification

Borrowers' Counsel Can Be Sanctioned over Frivolous Complaints in Foreclosure and Eviction Proceedings, Michigan Court Holds

By the Ballard Spahr LLP Mortgage Banking Group A Michigan appellate court recently held that a borrower's counsel could be sanctioned for filing a complaint for the purpose of delaying foreclosure or eviction. In Edgett v. Flagstar Bank , [ enhanced version available to lexis.com subscribers...

Wisconsin Supreme Court Hears Case Involving Equitable Assignment of Mortgages

The Wisconsin Supreme Court has heard arguments in Dow Family LLC v. PHH Mortgage Corp. , 2013AP221, [ enhanced version available to lexis.com subscribers ], a case involving the Mortgage Electronic Registration System (MERS), an electronic mortgage tracking system operated by MERSCORP. (The oral argument...

Defective 90 Day Cure Notice No Defense To Post-Foreclosure Eviction

Distressed Homeowners Lose Key Defense, While Foreclosure Purchasers Gain More Title Security Last month, the Supreme Judicial Court decided yet another important foreclosure case, U.S. Bank v. Schumacher [ enhanced version available to lexis.com subscribers ]. The issue considered in Schumacher...

Loan Servicer Properly Identified as Party with Authority To Negotiate Mortgage Terms in Foreclosure Notice, Georgia Court Holds

A recent decision by the Georgia Court of Appeals helps to add further clarity to the state’s foreclosure notice statute. The statute, which was amended in 2008, requires that the written notice of a foreclosure sale “shall include the name, address, and telephone number of the individual...

Lenders Have To Do What They Are Told (At Least When It Comes To Accepting Funds To Pay Off A Loan And Cancel A Mortgage)

This was the take home message from a recent Appellate Division opinion -- Lakeland Bank v. Sampson . In that case, Lakeland obtained final judgment of foreclosure against its borrower in connection with a home equity line of credit which was secured by a mortgage on the borrower's home. Lakeland...

After the Bank Forecloses, Must It Actually Sell Your House?

By Philip C. Babler The Wisconsin Supreme Court will answer this question in Bank of New York v. Carson , No. 2013AP544, [ enhanced version available to lexis.com subscribers ]. It heard argument in this case last week. The case began more than 3 1/2 years ago when a widow—physically and...

Lender Allowed To Foreclose But Punished By Court For Violating Consumer Fraud Act

A New Jersey trial court has issued an interesting opinion, [ enhanced version available to lexis.com subscribers ], allowing a lender to foreclose but imposing significant limitations on the lender because the court concluded that the lender had violated the Consumer Fraud Act. In Freedom Mortgage...

D.C. Court of Appeals, Nevada Supreme Court Extinguish Lender's Mortgage Lien Following Association Lien Foreclosures

By Roger D. Winston and Joseph E. Lubinski A recent decision by the District of Columbia Court of Appeals, [ enhanced version available to lexis.com subscribers ], brings into renewed focus the tension between condominium/homeowner associations and lenders when it comes to payment of delinquent...

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

HUD-insured Nevada mortgages are not trumped by lien foreclosures of homeowner associations, notwithstanding Nevada’s superpriority lien law and the Nevada Supreme Court decision in SFR Investments Pool v. Wells Fargo . Mortgage lenders have been understandably upset by the September decision of...

Lenders’ Rights Under Threat in Nevada: the Nevada Supreme Court Rules That Homeowners Association Liens Can Extinguish First Deeds of Trust

In a September 2014 ruling, the Nevada Supreme Court held that a homeowners association’s (HOA) non-judicial foreclosure sale can extinguish a mortgage lender’s previously-recorded first deed of trust on a property if that foreclosure is to recover assessments categorized as super priority...

Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice

Introduction Florida’s Third District Court of Appeal (Third District) has issued its opinion in Deutsche Bank Trust Company Americas v. Beauvais , __ So. 3d __ (Fla. 3rd DCA 2014), [ enhanced version available to lexis.com subscribers ], holding that an involuntary dismissal without prejudice...

Wisconsin Courts Can Force Lenders to Make Prompt Sales of Foreclosed Properties Which Have Been Abandoned by the Borrowers

In a case that “radically revises the law on mortgage foreclosure,"[1] the Wisconsin Supreme Court recently held in Bank of New York Mellon v. Carson , 2015 WI 15, [ enhanced version available to lexis.com subscribers ], that Wisconsin circuit courts have the authority to order a sale of mortgaged...

Appellate Division Holds That Trial Court Had the Right To Decide If Foreclosure-Related Dispute Was Arbitrable, But Decided It Wrong

By Peter J. Gallagher ( @pjsgallagher ) Most of the current litigation over foreclosures has played out in the courts, but a recent decision from the Appellate Division, Banquez v. Deutsche Bank National Trust Company, [ enhanced version available to lexis.com subscribers ], involved a foreclosure...

Defective 150 Day Cure Notice No Defense To Foreclosure

Distressed Homeowners Take Another Hit In another court ruling against embattled homeowners facing foreclosure, the Massachusetts Appeals Court has ruled that a defective 150 day cure notice is not a valid defense to a foreclosure sale. The case is Haskins v. Deutsche Bank , [ enhanced version...

The Sixth Circuit, Relying upon Michigan’s Nonrecourse Mortgage Loan Act, Rejects the Enforceability of an Insolvency Covenant

Notwithstanding Michigan’s 2012 Nonrecourse Mortgage Loan Act (NMLA), which provides that solvency covenants in nonrecourse loans unenforceable, in Borman, LLC v. 18718 Borman, LLC , a third-party purchaser of a foreclosed property sought a deficiency judgment against the borrower and guarantor...

When, If Ever, Is A Residential Mortgage Not "Residential" For The Purpose of Foreclosure?

By Peter J. Gallagher ( @pjsgallagher ) Believe it or not, this question comes up from time to time in my practice (exciting life, I know). In recent years I have prosecuted many foreclosure actions, but only commercial foreclosures. So the first question I usually ask a colleague who comes to...

Neither Rain, Nor Sleet, Nor Snow . . . Will Allow You to Set Aside a Sheriff’s Sale!

By Peter J. Gallagher ( @pjsgallagher ) Although the snow is (hopefully) gone for a few months, the Appellate Division recently handed down a decision that brings us back to one of the many snowstorms we had to endure this winter. In Weiss v. Porchetta, [ enhanced version available to lexis.com...

“Zombie Homes” Legislation Introduced in New York

The Abandoned Property Neighborhood Relief Act of 2015 has been introduced in the New York State Senate and Assembly, prompting a Newsday article quoting Lexis author Bruce J. Bergman, author of Bergman on New York Mortgage Foreclosures (LexisNexis Matthew Bender). The legislation would require banks...

Appellate Division to Foreclosing Lenders: "Do Less" Because If You Do More You Might Make Yourself Liable For Damages

By Peter J. Gallagher ( @pjsgallagher ) There is a scene in the movie " Forgetting Sarah Marshall " where the main character goes to a surf instructor to teach him how to surf. The lesson is not that helpful because, among other things, the instructor gives the main character advice that...