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    Court to lenders: strict compliance with local recording requirements necessary
    2011-02-10

    A decision out of the District Court for the Middle District of North Carolina (the “District Court”), now being appealed to the Fourth Circuit Court of Appeals, highlights just how critical it is for lenders to strictly comply with local recording requirements when recording their liens. In SunTrust Bank N.A. v. Northen, 433 B.R. 532 (M.D.N.C. Aug.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Debtor, Interest, Deed, Constructive notice, Deed of trust (real estate), Title 11 of the US Code, Trustee, United States bankruptcy court
    Authors:
    Blanka Wolfe
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    California bankruptcy court: state foreclosure law trumps MERS
    2011-04-20

    In yet another attack on Mortgage Electronic Registration Systems (MERS), the U.S. Bankruptcy Court for the Southern District of California has refused to allow the assignee of a deed of trust (DOT) to regain possession of a home on which it had foreclosed where the assignment had not been recorded.

    Filed under:
    USA, California, Banking, Insolvency & Restructuring, Litigation, Ballard Spahr LLP, Bankruptcy, Debtor, Interest, Mortgage loan, Foreclosure, Default (finance), Deed of trust (real estate), California Civil Code, United States bankruptcy court, US District Court for Southern District of California
    Location:
    USA
    Firm:
    Ballard Spahr LLP
    Junior lien holder bankruptcy can stay the foreclosure of a senior lien
    2011-06-07

    The second priority lien held by a junior lien holder is a property interest sufficient to trigger the protection of the automatic stay.In re Three Strokes L.P., 379 B.R. 804 (Bankr. N.D. Tex. 2008). Inasmuch as a senior lien holder’s foreclosure proceedings would have the effect of extinguishing the debtor’s second lien interest, a court may only lift the stay and permit the foreclosure to proceed upon such senior lien holder’s showing of adequate protection.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Seyfarth Shaw LLP, Bankruptcy, Debtor, Interest, Mortgage loan, Foreclosure, Deed, Default (finance), Deed of trust (real estate), Tax lien, Secured loan, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Unauthorized transfer and deed of trust in LLC property is void, lender loses its security
    2011-06-24

    A theme running through many apparent-authority cases is the question of who loses: for example, the LLC whose property was used to secure unauthorized, personal borrowings by a member or manager, or the bank that in good faith made the loan to the malefactor? Often the recipient of the funds has used the money for personal matters and is essentially judgment proof.

    Filed under:
    USA, Mississippi, Banking, Insolvency & Restructuring, Litigation, Real Estate, Stoel Rives LLP, Bankruptcy, Debtor, Limited liability company, Deed, Good faith, Conveyancing, Deed of trust (real estate), United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Stoel Rives LLP
    Foreclosure sales: when is the “deed” done?
    2015-04-29

    In re Betchan, 524 B.R. 830 (Bankr. E.D. Wash. 2015) –

    A mortgagee was the highest bidder at a foreclosure sale that took place shortly before the debtor filed bankruptcy.  The lender requested relief from the automatic stay in order to evict the debtor on the basis that transfer of the property was completed prepetition so that it was not part of the debtor’s bankruptcy estate.

    Filed under:
    USA, Washington, Banking, Insolvency & Restructuring, Litigation, Troutman Pepper, Bankruptcy, Foreclosure, Deed, Deed of trust (real estate)
    Location:
    USA
    Firm:
    Troutman Pepper
    In re: Restivo Auto Body, Inc. - 4th Circuit rules executed but unrecorded security interest has priority over IRS tax lien
    2014-11-21

    On October 31, 2014, the U.S. Court of Appeals for the 4th Circuit interpreted Maryland law in ruling that a bank’s security interest in a Chapter 11 debtor’s property created by a deed of trust that was executed before, but recorded after, the Internal Revenue Service filed a tax lien, had priority over the tax lien.

    Background

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Tax, McGuireWoods LLP, Capital punishment, Deed of trust (real estate), Tax lien, Internal Revenue Service (USA)
    Authors:
    James E. Van Horn , Lauren A. Ford
    Location:
    USA
    Firm:
    McGuireWoods LLP
    Debtor had legitimate business reason to separately classify unsecured claims
    2013-06-12

    In re Burcam Capital II, LLC, Case No. 12-04729-8-JRL (Bankr. E.D.N.C., Feb. 15, 2013)

    CASE SNAPSHOT

    Filed under:
    USA, North Carolina, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Unsecured debt, Secured creditor, Deed of trust (real estate)
    Authors:
    Alison Wickizer Toepp
    Location:
    USA
    Firm:
    Reed Smith LLP
    Priority for deeds of trust recorded simultaneously
    2012-09-25

    As the financial and housing markets headed toward freefall in September of 2008, an enterprising homeowner named Kyung Ha Chung applied for two loans, from two lenders, to be secured by two deeds of trust against her house.  The problem was, she didn’t tell the two lenders about each other, and signed the two deeds of trust on the same day, before two different notaries.

    How The Problem Arose:  Document Batches Recorded Together

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Miller Starr Regalia, Fraud, Deed of trust (real estate)
    Authors:
    Basil "Bill" Shiber
    Location:
    USA
    Firm:
    Miller Starr Regalia
    Virginia General Assembly enacts changes to recording tax statutes
    2012-08-08

    Two significant changes were made to the Virginia recording tax statutes applicable to deeds of trusts during the 2012 session of the General Assembly. First, the exemption from recording taxes for deeds of trust whose purpose is to refinance an existing debt with the same lender was eliminated. Second, on deeds of trust securing debt in excess of the fair market value of the real estate, the recording tax now may be paid on the value of the property conveyed rather than the amount of the debt.

    Filed under:
    USA, Virginia, Insolvency & Restructuring, Real Estate, Tax, McGuireWoods LLP, Tax exemption, Debt, Fair market value, Refinancing, Deed of trust (real estate)
    Authors:
    Charles L. Menges , Nancy R. Little
    Location:
    USA
    Firm:
    McGuireWoods LLP
    Bankruptcy court challenges to errors in deeds of trust and mortgages
    2012-02-21

    As real estate-related bankruptcy filings remain steady, courts continue to see debtors challenging the validity of deeds of trust and mortgages due to minor scriveners’ errors.  The United States Bankruptcy Court for the Eastern District of North Carolina is viewed by debtors as a favorable venue in which to bring such challenges due to a string of prior rulings starting with In re Head Grading in 2006, which invalidated a North Carolina deed of trust that incorrectly cited the date of the related note by one day.  The latest chapter in this saga involves an effort by a

    Filed under:
    USA, North Carolina, Banking, Insolvency & Restructuring, Litigation, Poyner Spruill LLP, Bankruptcy, Debtor, Limited liability company, Deed of trust (real estate), United States bankruptcy court
    Authors:
    James S. "Charlie" Livermon III , Jill C. Walters
    Location:
    USA
    Firm:
    Poyner Spruill LLP

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