In a decision approved for publication, New Jersey’s Appellate Division recently remanded an action to the Chancery Division in order to determine whether a lender improperly collected more than one-hundred percent of the debts owed to it. SeeBrunswick Bank & Tr. v. Heln Mgmt. LLC, 2018 WL 987809 (N.J. Super. Ct. App. Div. Feb. 21, 2018). In the case, the lender made five construction loans to two entities, which were guaranteed by the entities’ principal and his daughter.
The Superior Court of Pennsylvania recently affirmed a trial court’s order granting a title insurance company summary judgment based on a defect that a survey of the premises would have shown. SeeKreider v. Correia, 2018 WL 359285 (Pa. Super. Ct. Jan. 11, 2018). In the case, the plaintiff insured purchased a property after the lender had obtained it via a foreclosure (the “Property”). Before plaintiff purchased it, the real estate agent informed him that the Property included a two-car garage and some other surrounding land.
The United States District Court for the Western District of Wisconsin recently held that a creditor did not perfect its security interest in the debtor’s property because the creditor inadvertently included a space in the debtor’s name in its UCC financing statement. SeeUnited States Sec. & Exch. Comm’n v. ISC, Inc., 2017 WL 3736796 (W.D. Wis. 2017). In the case, the creditor filed a UCC financing statement with the Wisconsin Department of Financial Institutions (“DFI”) regarding an interest it had in certain assets of the debtor, ISC, Inc.
The United States District Court for Nevada recently reversed a bankruptcy court’s decision and held that a title insurance company’s bankruptcy claim was not barred by the doctrine of claim preclusion because, among other reasons, it was not a party to the underlying state court action. SeeCommonwealth Land Title Ins. Co. v. Creditor Grp., 2017 WL 4683968 (D. Nev. Oct. 17, 2017). In the case, two individuals (the “Owners”) formed two companies (the “Companies”) to purchase and develop property.
The United States Supreme Court recently held that a creditor who files a bankruptcy claim on a time-barred debt does not violate the Fair Debt Collection Practices Act (“FDCPA”). SeeMidland Funding, LLC v. Johnson, 137 S. Ct. 1407 (2017). In the case, the debtor filed for bankruptcy under Chapter 13 of the Bankruptcy Code, and the creditor filed a proof of claim asserting that it was owed credit card debt. However, the credit card had not been used in over ten years, outside Alabama’s six-year statute of limitations.
The United States Bankruptcy Court for the District of New Jersey recently overruled a creditor’s objection to the debtors’ proposed chapter 13 plan, rejecting the association’s argument that its claim is secured by a consensual lien and may not be modified pursuant to 11 U.S.C. 1322(b)(2). Specifically, the Court found that a lien held by a New Jersey condominium or homeowners’ association can be either a statutory lien (subject to modification) or a consensual lien (not subject to modification) depending upon the circumstances presented. In re Keise, 564 B.R. 255 (Bankr. D.N.J.
The United States District Court for the Western District of New York recently granted defendant’s motion to dismiss plaintiff’s first cause of action alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (“FDCPA”), on the ground that plaintiff failed to sufficiently plead that the communications from defendant were sent in an attempt to collect a debt. SeeBurns v. Seterus, Inc., 2017 WL 104735 (W.D.N.Y. Jan. 11, 2017). In 2005, plaintiff signed a note and mortgage secured by her residence.
The Fourth Circuit recently affirmed a bankruptcy court’s dismissal of the plaintiffs’ Fair Debt Collection Practices Act (“FDCPA”) claims, holding that the defendant’s conduct—filing proofs of claim based on time-barred debts—does not violate the FDCPA. SeeIn re Dubois, 2016 WL4474156 (4th Cir. Aug. 25, 2016). In the case, each of the two plaintiffs filed for Chapter 13 bankruptcy, and the defendant filed proofs of claim in the plaintiffs’ cases.
The United States Court of Appeals for the Third Circuit recently reaffirmed that a foreclosure action commenced more than six years after the loan was accelerated could still be within the applicable statute of limitations. SeeIn re: Gordon Allen Washington; Gordon Allen Washington v. Bank of New York Mellon, As Tr. for the Certificate-Holders of the CWABS, Inc., Asset-Backed Certificates, Series 2007-5, 2016 WL 5827439 (3d Cir. Sept. 30, 2016). In the case, the borrowed executed a mortgage and promissory note in February 2007.
The United States Court of Appeals for the Eighth Circuit recently held that a debt collector did not violate the Fair Debt Collection Practices Act (“FDCPA”) by filing a time-barred proof of claim in a bankruptcy proceeding. See Nelson v. Midland Credit Mgmt., Inc., 2016 WL 3672073 (8th Cir.