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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...

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FHA Announces “Costly” Alternative to Reverse Mortgage Foreclosure; HUD Soliciting Comment

By Jennifer Bowen and John C. Lynch Since its creation in 2009, the Home Equity Conversion Mortgage (“HECM”) reverse mortgage program created by the Federal Housing Authority has helped numerous senior citizens stay in their homes by allowing them to convert the equity in their home...

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 "Shall" Means "Shall": Wisconsin Supreme Court Requires Mortgage Lenders to Sell Abandoned Properties in Foreclosure

Last week the Wisconsin Supreme Court issued its decision in Bank of New York v. Carson , 2015 WI 15, a case we previewed here . The case is significant for its potential lasting effects on mortgage foreclosures in Wisconsin. The Carson case involves interpretation of Wis. Stat. § 846.102, [...

When "Shall" Means "May": Wisconsin Court of Appeals Allows Mortgage Lenders to Slow the Foreclosure Sale Process

Last week we discussed the Wisconsin Supreme Court’s decision, [ enhanced version available to lexis.com subscribers ], in Bank of New York v. Carson permitting circuit courts to force a mortgagee to hold a sheriff’s sale. Today we rewind the clock a bit to a decision last December by the...

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...

SJC Puts The Nail In Popular Foreclosure Defense Strategy

Abate v. Fremont Investment & Loan : High Court Rules That “Try Title” Procedure Only Available After Foreclosure Auction Completed , [ enhanced version available to lexis.com subscribers ]. After Deutsche Bank foreclosed his Newton home, Thomas Abate brought a lawsuit in the Land...

Fifteen Minute Foreclosure Counseling Session at Gillette Stadium Deflated Borrower’s Rights

Court Halts Eviction For Distressed Homeowner, Validity of Foreclosure In Question ( Wells Fargo v. Cook , Mass. Appeals Court May 19, 2015) , [ enhanced version available to lexis.com subscribers ]. In response to the foreclosure crisis, HUD enacted regulations requiring lenders to provide distressed...

Third Circuit Rules FDCPA Claims Can Be Based on Foreclosure Complaints

The U.S. Court of Appeals for the Third Circuit, [ enhanced version available to lexis.com subscribers ], recently ruled that foreclosure complaints can be the basis of Fair Debt Collection Practices Act (FDCPA), [ enhanced version available to lexis.com subscribers ], claims. This decision continues...

Foreclosure Notices Subject to FDCPA, Federal Court Finds

Sending foreclosure notices to delinquent borrowers constitutes debt collection activity subject to the federal Fair Debt Collection Practices Act (FDCPA), a federal court in Nevada recently ruled. In Mallory v. McCarthy & Holthus, LLP , [ enhanced version available to lexis.com subscribers ]...

Florida District Court Issues Key Ruling in Mortgage Foreclosure Case

Previously, Florida appellate courts were strictly enforcing the acceleration requirements in mortgages. In Gorel v. The Bank of New York Mellon , Case No. 5D13-3272 (Fla. 5th DCA May 8, 2015), [ enhanced version available to lexis.com subscribers ], a Florida appellate court has now held that the failure...

Lenders Get Protection Under New Amendments to Nevada’s HOA Lien Priority Statute

In a September 2014 ruling, the Nevada Supreme Court sent shockwaves through the lending community by holding 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...