Ohio and other states where Frost Brown Todd has offices have long had witness and/or notary requirements for the execution of mortgages. Ohio Revised Code Section 5301.01 provides that a “mortgage . . . shall be signed by the . . . mortgagor. . . . The signing shall be acknowledged by the . . . mortgagor . . . before a . . . notary public . . .

On March 25, 2019, the United States Court of Appeals for the Ninth Circuit dealt another setback to plaintiffs trying to establish Article III standing to assert a claim under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”). In five related FCRA appeals combined in Jaras v. Equifax, Inc., 2019 WL 1373198 (9th Cir. Mar.

Collateral descriptions in financing statements are often an afterthought for secured creditors, and are frequently prepared in the simplest way possible, sometimes due to carelessness, sometimes because the debtor wishes to maintain its privacy by not disclosing specific pieces of collateral or investments, and sometimes due to administrative simplicity to minimize the cost and hassle of future amendments to financing statements in deals where the debtor regularly exchanges collateral of the same type.

Although it has been nearly a decade since the New York Court of Appeals issued its decision in Koehler v. Bank of Bermuda Ltd.,[1] making New York an attractive forum for judgment creditors to execute on judgment debtors’ assets held by themselves or others in foreign jurisdictions, the decision stands firm much to the disappointment of out-of-state competing creditors, as one such creditor recently experienced in Kassover v. Prism Ventures Partners LLC et al.[2]

The U.S. Court of Appeals for the Seventh Circuit allowed a secured creditor to retain its lien and therefore the proceeds from a sale, even after the secured creditor mistakenly released its mortgage lien. The case is Trinity 83 Development, LLC v. ColFin Midwest Funding, LLC (In re Trinity Development, LLC), slip. op. (7th Cir. March 1, 2019).

A U.S. Bankruptcy Court has denied a creditor’s motion for sanctions against a law firm in the Middle District of Florida which the creditor alleged engaged in serial filings.

Part III: Modifications Post-Discharge

The U.S. Court of Appeals for the Sixth Circuit held that a recent change to Ohio law involving notice of a defective lien had no bearing on a bankruptcy trustee’s ability to avoid the defective lien because such notice is irrelevant to a trustee’s status as a judicial lien creditor.

Accordingly, the Sixth Circuit affirmed the Bankruptcy Appellate Panel’s upholding of the bankruptcy court’s denial of the mortgagee’s motion for judgment on the pleadings.

Contrary to the Bankruptcy Court’s ruling, the District Court concluded that California's liquidated damages statute does not apply to the default interest rate provision.

The U.S. Court of Appeals for the Seventh Circuit recently held that a mortgagee’s failure to take a deficiency judgment against a borrower who filed bankruptcy in a concluded state foreclosure action precluded the mortgagee from making a deficiency claim in the borrower’s bankruptcy proceeding.

A copy of the opinion in BMO Harris Bank N.A. v. Anderson is available at: Link to Opinion.