Massachusetts bankruptcy courts have invalidated mortgages containing defects, including the failure of lenders to observe strict formalities in the execution of mortgage acknowledgements. See our prior post on this very topic at Lender Beware: The Tragic Consequences of Defective Mortgage Acknowledgements.
As the Supreme Court recently reminded us in Bullard v. Blue Hills Bank, not all orders in bankruptcy cases are immediately appealable as a matter of right. Only those orders deemed sufficiently “final” may be appealed without leave under 28 U.S.C. § 158(a).
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.
Federal bankruptcy law confers on trustees the power, in some circumstances, to “avoid”––that is, claw back––from creditors money transferred to those creditors pre-bankruptcy to pay the debtor’s obligations. However, if such a transfer was “made by or to (or for the benefit of)” a financial institution, it may be protected from avoidance under Bankruptcy Code Section 546(e). The transfers at issue here are not ordinary loan payments to lenders by debtors, but, rather, transfers between third parties that make use of banks or other financial institutions.
In Dubois v. Atlas Acquisitions LLC, Case No. 15-1945 (4th Cir. Aug. 25, 2016), the Fourth Circuit Court of Appeals held in a 2-1 decision that filing proofs of claim on time-barred debts does not violate the Fair Debt Collection Practices Act (“FDCPA”), at least where state law preserves the right to collect on the payment. In so holding, the court sided with the Second and Eighth Circuit Courts of Appeals in a circuit split regarding the viability of FDCPA claims premised on proofs of claim filed in a debtor’s bankruptcy case.
In a split decision, the U.S. Court of Appeals for the Fourth Circuit recently held that “filing a proof of claim in a Chapter 13 bankruptcy based on a debt that is time-barred does not violate the Fair Debt Collection Practices Act when the statute of limitations does not extinguish the debt.”
The first Monday of each October marks the beginning of a fresh term for the Supreme Court of the United States. As the 2016 term approaches, the court’s docket has already begun to fill with cases that will impact commercial practitioners. While the court will continue to accept additional cases throughout the upcoming term, it has already agreed to hear at least five cases that may have significant implications for commercial lawyers throughout the country.
Recently, the North Carolina Court of Appeals issued an opinion addressing whether a conflict of interest exists when a trustee under a deed of trust initiates a foreclosure proceeding and later represents the lender in that same foreclosure proceeding.
In today's low interest rate environment, the difference between a contractual interest rate and the federal judgment rate can be quite significant. It is not surprising, therefore, that this issue has become hotly litigated in cases involving solvent Chapter 11 debtors. Recently, the U.S. District Court for the Northern District of Illinois, in Colfin Bulls Funding A v. Paloian (In re Dvorkin Holdings), 547 B.R. 880 (N.D. Ill.
Filing a proof of claim with a bankruptcy court representing a debt subject to an expired state law limitations period does not violate the federal Fair Debt Collection Practices Act (FDCPA) under an opinion released yesterday from the Seventh Circuit Court of Appeals.
Under the ruling, in Owens v. LVNV, the Seventh Circuit joins the Eighth Circuit Court of Appeals in rejecting the Eleventh Circuit’s holding under Crawford v. LVNV that such proofs of claim violate the FDCPA.