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    Mortgage recorded before bankruptcy subject to preference attack
    2014-01-23

    On March 12, 2009, Gerald Rote and Annalisa Rote  loaned $38,000 to their daughter and son-in-law to buy  a home. The Rotes took a mortgage on the home but, to  avoid the expense of publicly recording the mortgage,  they did not immediately record it. Rather, they waited  two years, until May 4, 2011, to record the mortgage.  Seven months later, however, the daughter and son-inlaw filed a bankruptcy petition.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Mortgage loan, United States bankruptcy court
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Seventh Circuit holds that Illinois mortgages need only substantially comply with mortgage form in statute
    2014-01-13

    Recently, the United States Court of Appeals for the Seventh Circuit held that Illinois mortgages entered prior to the amendment of 765 ILCS 5/11 need not strictly conform to the form presented in the statute. In re Crane, --- F.3d ---, 2013 WL 6731850 (7th Cir. Dec. 23, 2013). However, the court’s decision in Crane, considered as a whole, serves as a reminder to secured lenders to closely examine the contents of their mortgages and the requirements of applicable state law.

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Barnes & Thornburg LLP, Debt, Mortgage loan, Constructive notice, United States bankruptcy court, Seventh Circuit
    Authors:
    John T. Gregg , Patrick E. Mears
    Location:
    USA
    Firm:
    Barnes & Thornburg LLP
    Seventh Circuit Court of Appeals holds that Illinois mortgages may not be avoided in bankruptcy for failure to state interest rate and maturity date
    2013-12-27

    Nearly two years ago, a bankruptcy court in the Central District of Illinois caused quite a bit of commotion in the lending community when it held that the provisions of Section 11 of the Illinois Conveyances Act (the “Act”) (765 ILCS 5/11) were mandatory rather than permissive.  Crane v. Richardson (In re Crane), 20121 WL 669595 (Bankr. C.D. Ill. Feb. 29, 2012).

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Dykema Gossett PLLC, Unsecured debt, Mortgage loan, Maturity (finance), Constructive notice
    Location:
    USA
    Firm:
    Dykema Gossett PLLC
    Fannie Mae issues numerous servicing guide announcements
    2013-12-21

    Over the past week, Fannie Mae has announced numerous servicing policy changes through a series of Servicing Guide Announcements.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Orrick, Herrington & Sutcliffe LLP, Mortgage loan, Reinsurance
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Recent ResCap decision holds that fair market value note exchange does not create original issue discount for bankruptcy claims purposes
    2013-12-03

    On November 15, 2013, the United States Bankruptcy Court for the Southern District of New York (Glenn, J.) issued a lengthy decision1 in the Chapter 11 case of Residential Capital, LLC (“ResCap”). An important holding contained in this decision is that the bankruptcy claims of holders of notes issued with original issue discount (or OID) for tax and accounting purposes in a “fair value” exchange (an exchange for notes with a lower face amount) need not be reduced by any unaccreted OID.2  

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cahill Gordon & Reindel LLP, Bankruptcy, Debt, Mortgage loan, Fair market value, United States bankruptcy court
    Authors:
    Joel H. Levitin , Richard A. Stieglitz Jr.
    Location:
    USA
    Firm:
    Cahill Gordon & Reindel LLP
    Suit for misuse of investment funds does not allege act in performance of “mortgage broker services” within definition of “insured services”
    2013-10-08

    The United States District Court for the Northern District of Texas has held that underlying claims that the insureds misused investment funds intended for the purchase of nonperforming mortgages did not allege negligent acts, errors, or omissions in performing “mortgage broker services” within the policy’s definition of “Insured Services.”  Axis Surplus Ins. Co. v. Halo Asset Mgmt., LLC, 2013 WL 5416268 (N.D. Tex. Sept. 27, 2013).

    Filed under:
    USA, Texas, Capital Markets, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Breach of contract, Mortgage loan, Negligence
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Beware the credit overbid
    2013-06-12

    In re Miller, 2013 WL 425342 (6th Cir. Feb. 5, 2013)

    CASE SNAPSHOT

    The Sixth Circuit Court of Appeals held that the secured lender’s credit bid, which equaled the total debt owed on two properties but exceeded the value of the only foreclosed property involved in the sheriff’s sale, extinguished the entire debt. The court affirmed the order to lift the automatic stay only to require the lender to dismiss the second foreclosure action, release the promissory note and mortgage, and turn over the second property to the borrower free and clear.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debt, Mortgage loan, Foreclosure, United States bankruptcy court, Sixth Circuit
    Authors:
    Lauren S. Zabel
    Location:
    USA
    Firm:
    Reed Smith LLP
    Defrauded initial lien holder maintains priority over subsequent innocent lenders
    2013-06-12

    In re RAG East, LP– Case no. 12-04545-CMB (Bankr. W.D. Pa. March 4, 2013)

    CASE SNAPSHOT

    The court granted summary judgment in favor of a defrauded lender in a lien priority dispute with subsequent third-party lenders. The court determined that the lien of a purchase money mortgage that was allegedly released pursuant to a fraudulent satisfaction piece nonetheless had priority over the liens held by innocent third parties who provided loans to the debtor without notice of the fraud.

    FACTUAL BACKGROUND

    Filed under:
    USA, Pennsylvania, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Fraud, Mortgage loan
    Authors:
    Joseph D. Filloy
    Location:
    USA
    Firm:
    Reed Smith LLP
    Illinois Legislature and court clarifies confusion on mortgage requirements after In re Crane
    2013-05-23

    A new Illinois law will close a loophole through which some mortgages could be subject to avoidance in bankruptcy.  The loophole, created by U.S. Bankruptcy Court’s (C.D. Illinois) 2012 In re Crane opinion, allowed a bankruptcy trustee to avoid a mortgage under 11 U.S.C. § 544(a)(3) unless it contained, among other provisions: 1) the amount owed, 2) the debt’s maturity date and 3) the underlying interest rate. 

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Miller Canfield PLC, Bankruptcy, Debtor, Interest, Mortgage loan, Illinois General Assembly
    Authors:
    Larry N. Woodard , Blake E. Schulman
    Location:
    USA
    Firm:
    Miller Canfield PLC
    Freddie Mac announces numerous servicing policy updates
    2013-04-22

    On April 15, Freddie Mac issued Bulletin Number 2013-6, which announces numerous revisions to servicing requirements. The bulletin updates the allowable amounts for attorney fees for default-related legal services and details changes to the reimbursement process for such fees. Freddie Mac also reminds servicers about changes to foreclosure sale bidding on first lien mortgages.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Orrick, Herrington & Sutcliffe LLP, Mortgage loan, Foreclosure, Default (finance)
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP

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