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    Fla. App. Court (4th DCA) Holds Trial Court Improperly Applied Federal Judicial Estoppel Rule to Undisclosed Assets in Bankruptcy
    2018-01-16

    The District Court of Appeal of the State of Florida, Fourth District, recently reversed a trial court’s order denying two borrowers’ request for attorney’s fees and costs on judicial estoppel grounds.

    In so ruling, the Fourth DCA held that the trial court improperly relied on a Fifth Circuit case and failed to apply Florida’s judicial estoppel doctrine when it concluded that the borrowers’ failure to disclose their attorney’s fee claim in their Chapter 11 bankruptcy schedules barred the fee claim.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Bankruptcy
    Authors:
    Ernest Wagner
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    7th Cir. Rejects ‘Anti-Tying’ Challenge to Software Company’s Required Use of Bank
    2017-02-08

    The U.S. Court of Appeals for the Seventh Circuit recently held that a bank’s relationship with a software services company, under which the software services company required its customers to use the bank for the depositary services ancillary to the software, did not violate anti-tying provisions of the federal Bank Holding Company Act, at 12 U.S.C. § 1972.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Bankruptcy, Bank Holding Company Act 1956 (USA), Seventh Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    FDCPA Lawsuit Tossed for Failure to Disclose Claim in Bankruptcy Petition
    2015-12-10

    The U.S. District Court for the District of New Jersey recently dismissed a debtor’s claims for violations of the federal Fair Debt Collection Practices Act (FDCPA) and the New Jersey Truth in Consumer Contract Warranty and Notice Act (TCCWNA), holding the debtor’s failure to schedule his lawsuit as an asset of his bankruptcy estate deprived him of standing to later assert the claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Bankruptcy, Debtor, Fair Debt Collection Practices Act 1977 (USA), US District Court for District of New Jersey
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    8th Cir. Holds Deficiency Claim Time Barred Despite Intervening Bankruptcy
    2017-09-05

    The U.S. Court of Appeal for the Eighth Circuit recently affirmed a bankruptcy court’s rejection of a proof of claim filed by a creditor where the claim was based upon a debt which was time barred by the creditor’s failure to comply with the applicable state law deadline for pursuing a deficiency judgment following a non-judicial foreclosure. 

    A copy of the opinion is available at: Link to Opinion.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Bankruptcy, US Code, Eighth Circuit
    Authors:
    Coleman Braun
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    7th Cir. Holds Judgment Against Bankruptcy Debtor’s Husband Did Not Violate Co-Debtor Stay
    2016-12-30

    The U.S. Court of Appeals for the Seventh Circuit recently held that a bank’s lawsuit against the husband of a debtor who had filed for bankruptcy did not violate the co-debtor stay because the husband’s credit card debts were not a consumer debt for which the debtor was personally liable.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Credit card, Bankruptcy, Debtor, Interest, Debt, Consumer debt, Marriage, US Code, United States bankruptcy court, Seventh Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Holds Mortgage Fraud Debts Not Dischargeable
    2017-08-15

    The U.S. Court of Appeals for the Fifth Circuit recently held that debts arising from a scheme to deprive mortgagees of surplus foreclosure sale proceeds were non-dischargeable, affirming the bankruptcy court’s judgment against the debtor in consolidated adversary proceedings filed by various lenders that held first mortgage liens.

    A copy of the opinion is available at:  Link to Opinion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Fraud, Debt, Foreclosure, Deed of trust (real estate), United States bankruptcy court, Fifth Circuit, Trustee
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    1st Cir. Rejects Bankruptcy Trustee’s Effort to Avoid Mortgage Due to Allegedly Defective Acknowledgment
    2016-12-20

    The U.S. Court of Appeals for the First Circuit recently rejected a bankruptcy trustee’s effort to avoid a mortgage on the basis that the acknowledgment signed by the borrowers’ attorney-in-fact was defective under Massachusetts law, holding that the acknowledgment was not materially defective because as a matter of agency law the attorney-in-fact’s signature was the borrowers’ “free act and deed.”

    Filed under:
    USA, Massachusetts, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    6th Cir. Bankruptcy Panel Holds Foreclosure Deficiency Judgment May Be Avoided
    2017-07-10

    The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Sixth Circuit recently held that a mortgage foreclosure deficiency judgment lien may be avoided under 11 U.S.C. § 522(f)(2), reversing the bankruptcy court’s ruling to the contrary.

    A copy of the opinion is available at: Link to Opinion. 

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Property tax, Mortgage loan, Foreclosure, United States bankruptcy court, Sixth Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    MD Fla. Holds Notice of Bankruptcy Sufficient for ‘Actual Knowledge’ of Representation by Counsel Under FCCPA
    2016-10-24

    The U.S. District Court for the Middle District of Florida, Orlando Division recently ruled that debtors’ FCCPA and TCPA claims did not arise out of and were not related to their mortgage to fall under the jury waiver provisions in the mortgage where the claims arose out of attempts to enforce a debt that was discharged in bankruptcy.

    The Court also ruled the debtors sufficiently stated a claim under FCCPA by alleging the creditor received notice of the debtors’ bankruptcy case to constitute actual knowledge the debtors’ were represented by counsel.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Telephone Consumer Protection Act 1991 (USA), Fair Debt Collection Practices Act 1977 (USA)
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    9th Cir. Bankruptcy Panel Affirms Dismissal of ‘Wrongful Securitization’ Allegations
    2017-07-05

    The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of an adversary proceeding without leave to amend, holding that:

    (a) the debtors failed to state a claim for wrongful foreclosure under California law;

    (b) the debtors failed to state a claim for breach of contract or breach of the implied covenant of good faith and fair dealing because they were not third-party beneficiaries of the pooling and servicing agreement;

    Filed under:
    USA, California, Banking, Insolvency & Restructuring, Litigation, Real Estate, Securitization & Structured Finance, Maurice Wutscher LLP, Bankruptcy, Foreclosure, Good faith, Mortgage-backed security, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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