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Mortgages › Borrowers › Appeals

The term "mortgage" typically refers to a mortgage loan.  A mortgage loan is a financing instrument where an individual or business borrows money to purchase property (usually real property) and... more +
The term "mortgage" typically refers to a mortgage loan.  A mortgage loan is a financing instrument where an individual or business borrows money to purchase property (usually real property) and uses that property as collateral for the loan. less -
Freiberger Haber LLP

The Appellate Division, Second Department, Holds that Banking Law 6-l is a Personal Defense that Can Only be asserted by the...

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By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. We have also written numerous articles relating to the recently enacted FAPA... ...more

Freiberger Haber LLP

Death of a Litigant

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Because litigation can be a long and drawn-out process, it is not uncommon for litigants to die during the pendency of a lawsuit. In today’s BLOG article, we address the problems that may arise when a litigant dies. This BLOG...more

Bradley Arant Boult Cummings LLP

Navigating Desbrunes: Implications and the Case for Overturning

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In a less-than-thousand-word opinion, the Fourth District Court of Appeal of Florida put foreclosure cases across Florida in jeopardy. Namely, in all foreclosure cases in which a borrower is deceased, unless the legal...more

Sheppard Mullin Richter & Hampton LLP

4th Circuit: Borrower Must Return Loan Proceeds After Rescission Despite Lender’s Failure to Meet TILA Requirements

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Recently, the United States Court of Appeals for the 4th Circuit held that a mortgage servicer’s failure to provide a required disclosure informing borrowers of their three-day right to rescind the loan under the Truth in...more

Perkins Coie

Copper Creek Confirms That Bankruptcy Discharges Have No Effect on the Statute of Limitations in Washington State

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As we previously noted, the statute of limitations on actions to enforce a note or deed of trust can be a brutally effective sword for borrowers in Washington State. Under the six-year limitations period of RCW 7.28.300, a...more

McGlinchey Stafford

Is my conduct a violation of the Consumer Sales Practices Act?

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The Bullet Point: Ohio Commercial Law Bulletin Is my conduct a violation of the Consumer Sales Practices Act? Volume 4, Issue 18 October 2, 2020 Unconscionable arbitration agreement Klonowski v. Lynch, 8th Dist. Cuyahoga...more

Rosenberg Martin Greenberg LLP

Pennsylvania Supreme Court Clarifies Applicability of Act 6 To Residential Mortgage Foreclosures (Sort Of)

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When the loan documents provide for confession of judgment and the collateral encumbered by the mortgage securing the loan is commercial real property, the foreclosure process in Pennsylvania is straightforward.  The lender...more

Patton Sullivan Brodehl LLP

Can a Loan Modification Waive the Borrower’s Right of Reinstatement?

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Loans secured by a deed of trust typically provide that upon default (commonly, missed interest payments) the lender may elect to “accelerate” the loan, making the entire balance of principal and interest due....more

Hinshaw & Culbertson - Consumer Crossroads

Legal Guidance Watch: Second Circuit Nostra Sponte Certifies a Series of Mortgage Lender Compliance Questions to New York Court of...

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The Second Circuit recently certified two questions to the New York Court of Appeals regarding the requisite proof needed for borrowers to dispute the lender's compliance with New York Real Property Procedures and Acts...more

Patton Sullivan Brodehl LLP

A Loan In Default Can Still Be Assigned

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Borrowers looking to invalidate a foreclosure sale often come up with interesting theories. One frequent strategy is to attack the validity of a prior assignment of the underlying note and deed of trust. As explained in...more

Patton Sullivan Brodehl LLP

The Tender Rule — Reinstatement and Redemption are Different

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Under California’s “tender rule,” a borrower suing to halt or unwind a wrongful foreclosure sale generally must allege that it tendered the amounts due on the loan before the sale. The rationale underlying the tender rule is...more

Patton Sullivan Brodehl LLP

Not All Deed of Trust Attorney Fee Clauses are Created Equal

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Lenders who prevail on claims arising from a deed of trust can always recover their attorney fees from the losing party as long as the deed of trust says something about fee recovery, right? It’s not that simple....more

BCLP

11th Circuit Rejects Reverse Mortgage Foreclosure Statute-Based Defense

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The Eleventh Circuit recently rejected a defense to foreclosure based on a federal statute governing insurance of reverse mortgages by the Department of Housing and Urban Development (“HUD”). HUD administers a...more

Snell & Wilmer

Everyone Wins When a Foreclosure Sale Generates Excess Proceeds

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When a foreclosure sale generates more money than needed to pay off the lien, the excess proceeds usually go first to creditors in the order of their priority, and second to the owner after creditors are paid in full. So, in...more

Bradley Arant Boult Cummings LLP

Fourth Circuit Asked to Rule on Whether Mortgage Retroactively Incorporates Federal Servicing Requirements

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A recent appeal to the Fourth Circuit may shed light on whether Virginia borrowers can assert federal mortgage servicing requirements as a defense to foreclosure when the mortgage instrument pre-dates the federal requirement....more

Ward and Smith, P.A.

North Carolina Supreme Court Holds That Liberal Standard of Notice Pleading Applies to Judicial Foreclosure Actions

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In an important decision for creditors, the North Carolina Supreme Court recently clarified the distinction between judicial foreclosure and non-judicial foreclosure by power of sale. In U.S. Bank v. Pinkney, the Supreme...more

Hinshaw & Culbertson LLP

Consumer Financial Services Newsletter - February 2017

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Seventh Circuit Finds Bank's Response to RESPA Request "Almost Perfect" - Perron v. J.P. Morgan Chase Bank, N.A., Case No. 15-cv-2206 (7th Cir. 2017) - The United States Court of Appeals for the Seventh Circuit...more

Burr & Forman

Florida's Fourth DCA Confirms that a Borrower is in the Best Position to Know Their Own Financial Information

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The Fourth District Court of Appeal recently affirmed its prior decision in Vidal v. Liquidation Properties, Inc., 104 So. 3d 1274 (4th DCA 2013). Wells Fargo Bank, N.A. v. Hilary A. Williamson, Case No. 4D15-285, 2016 WL...more

Ervin Cohen & Jessup LLP

Careful Who You Trust. A Lender Can Be Liable For The Negligence And Misrepresentations Of Its Loan Servicers, Even Absent Any...

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In the recent case of Daniels v. Select Portfolio Serving, Inc., the California Court of Appeal has held that a lender may be liable for the negligence and misrepresentations of the lender’s servicer, without any contractual...more

Hinshaw & Culbertson LLP

Consumer Financial Services Newsletter - June 2016

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Seventh Circuit Held No Implicit Threat to Proceed to Trial by Debt Collector When Filing a Collection Lawsuit - St. John v. CACH, LLC, No.14-2760, 2016 WL 2909195 (7th Cir. May 19, 2016) - On May 19, 2016, the...more

Shutts & Bowen LLP

No right to jury trial in foreclosure, even where lender seeks money judgment on promissory note

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Given the choice, a borrower in foreclosure may prefer that a jury determine her fate, rather than a judge.  But by statute, “[a]ll mortgages shall be foreclosed in equity” and “foreclosure claim[s] shall, if tried, be tried...more

Baker Donelson

New Case Poses Threat to Mortgage Servicers in Bankruptcies

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A new decision from the U.S. Court of Appeals for the Ninth Circuit poses a serious threat to mortgage companies that service mortgages of chapter 13 debtors. Mortgage servicers should be aware of the case's implications and...more

Carlton Fields

Florida Court Confirms Substantial Compliance Standard Concerning Foreclosures

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The Florida Second District Court of Appeal recently issued a long-awaited opinion in Green Tree Servicing v. Milam. Until this decision, the district courts in Florida had not spoken directly on the issue of whether strict...more

Burr & Forman

Sixth Circuit Weighs in on TCPA “Prior Express Consent”

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The U.S. Court of Appeals for the Sixth Circuit recently addressed both the timing and scope of “prior express consent” under the Telephone Consumer Protection Act (“TCPA”). The plaintiff in Stephen M. Hill v. Homeward...more

Carlton Fields

6th Circuit Rules Prior Express Consent Defeats Mortgagor TCPA Claim Against Lender

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On August 21, the Cincinnati-based United States Court of Appeal for the Sixth Circuit issued its ruling in Hill v. Homeward Residential, Inc., 2015 WL 4978464 (6th Cir. August 21, 2015), and affirmed a jury verdict...more

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