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    11th Cir. Holds HUD Regs Did Not Prevent Reverse Mortgage Foreclosure on Non-Borrower Surviving Spouse
    2018-09-26

    The U.S. Court of Appeals for the Eleventh Circuit held that 12 U.S.C. § 1715z-20(j) did not alter or limit the lender’s right to foreclose under the terms of the valid reverse mortgage contract where the non-borrower spouse was still living in the home.

    Accordingly, the Eleventh Circuit affirmed the trial court’s dismissal of the plaintiff’s petition for injunctive relief to prevent the foreclosure sale.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Injunction, Foreclosure, US HUD, Eleventh Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    11th Cir. Upholds Dismissal, Suggests Sanctions for ‘Shotgun Pleading’
    2018-10-02

    The U.S. Court of Appeals for the Eleventh Circuit recently rejected an attempt by homeowners to collaterally attack a state court mortgage foreclosure judgment, affirming the trial court’s dismissal of an amended complaint with prejudice for failure to state a claim, but on alternative grounds.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure, Federal Rules of Civil Procedure (USA), Eleventh Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Chapter 7 Debtors Permitted to Amend Schedules to Claim Homestead Exemption after Successful Avoidance Action by Trustee
    2018-09-20

    The purpose of bankruptcy is to provide for an orderly process by which a debtor’s assets can be fairly divided and distributed among creditors.

    It is also meant to ensure that debtors can start fresh. Not all of a debtor’s assets are available to creditors—the Bankruptcy Code allows a debtor to keep certain assets safe in bankruptcy through various asset exemptions available under both state and federal law. One such exemption is Michigan’s bankruptcy-specific homestead exemption.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Real Estate, Foster Swift Collins & Smith PC
    Authors:
    Patricia J. Scott
    Location:
    USA
    Firm:
    Foster Swift Collins & Smith PC
    New York Federal Court Holds County Tax Foreclosure May Constitute Fraudulent Conveyance
    2018-08-23

    The United States District Court for the Western District of New York recently reversed a Bankruptcy Court’s dismissal of an action and held that sales arising from tax foreclosures may be avoidable as fraudulent transfers. SeeHampton v. Ontario Cty., New York, 2018 WL 3454688 (W.D.N.Y. July 18, 2018). The case involves two adversary proceedings commenced by homeowners against the County of Ontario (the “County”). In each matter, the County foreclosed on plaintiffs’ homes after plaintiffs failed to pay property taxes.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, White Collar Crime, Riker Danzig LLP, Foreclosure
    Authors:
    Michael R. O’Donnell
    Location:
    USA
    Firm:
    Riker Danzig LLP
    Massachusetts Federal Court Dismisses Borrower’s Wrongful Foreclosure and Predatory Lending Claims
    2018-09-04

    The United States District Court for the District of Massachusetts recently dismissed a borrower’s complaint against a lender, finding that the lender did not wrongfully foreclose on the borrower or engage in predatory lending. SeeHealy v. U.S. Bank, N.A. for LSF9 Master Participation Tr., 2018 WL 3733934 (D. Mass. Aug. 3, 2018). In the case, the borrower executed a loan agreement secured by a mortgage on his house in 2004. In 2013, he defaulted on the loan, and the note and mortgage were assigned to the defendant lender thereafter.

    Filed under:
    USA, Massachusetts, Banking, Insolvency & Restructuring, Litigation, Real Estate, Riker Danzig LLP, Mortgage loan, Foreclosure, US District Court for District of Massachusetts
    Authors:
    Michael R. O’Donnell
    Location:
    USA
    Firm:
    Riker Danzig LLP
    Lease termination disputes and bankruptcy
    2018-08-14

    As the brick and mortar retail industry continues to decline, landlords are likely to engage in an increasing number of lease disputes with delinquent tenants. As we have seen over the past five years, those disputes often end up in bankruptcy court and may drag on for months before a landlord is able to shake its non-performing tenant. But what if the landlord terminated the lease before the tenant filed for bankruptcy relief? Can the tenant revive and assume the lease? In some instances, yes.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Real Estate, Kane Russell Coleman Logan PC, Bankruptcy, Debt restructuring, Title 11 of the US Code
    Authors:
    John Kane
    Location:
    USA
    Firm:
    Kane Russell Coleman Logan PC
    6th Cir. Holds BK Debtor’s Challenge to Mortgage Not Barred by Rooker-Feldman
    2018-08-04

    The U.S. Court of Appeals for the Sixth Circuit recently held that a debtor’s claim seeking to use a bankruptcy trustee’s § 544(a) strong-arm power to avoid a mortgage on the ground that it was never perfected did not require appellate review of the state court foreclosure judgment, and therefore was not barred by the Rooker-Feldman doctrine.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Sixth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Holds Automatic Stay Violation Claim Against Mortgagee Barred by Judicial Estoppel
    2018-08-06

    The U.S. Court of Appeals for the Fifth Circuit recently held that a mortgagee’s foreclosure action did not violate an automatic stay imposed during one of the plaintiff’s chapter 13 bankruptcy schedules, where the debtor failed to amend his bankruptcy schedules to disclose his recent acquisition of the subject property from his son.

    In so ruling, the Fifth Circuit affirmed the trial court’s judgment in favor of the mortgagee because father and son plaintiffs were judicially estopped from claiming a stay violation.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure, Fifth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    The Assignment of Leases in Bankruptcy Free of Prohibitions, Restrictions and Conditions
    2018-08-01

    In the era that preceded the Bankruptcy Reform Act of 1978 and its enactment of the Bankruptcy Code, bankruptcy estates often lost the value of leases and other contracts that could have been realized for creditors by use or sale as a result of termination provisions (either discretionary or ipso facto), limitations or outright prohibitions on assignment, and counterparty self-help.[1] The Code sou

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP, United States bankruptcy court, Third Circuit
    Authors:
    David W. Dykhouse
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Ninth Circuit: No Ulterior Motive, No Bad Faith When Buying Claims to Block Confirmation
    2018-07-24

    A recent Ninth Circuit Court of Appeals decision provides insight into “bad faith” claims-buying activity; specifically whether a creditor’s purchase of claims for the express purpose of blocking plan confirmation is permissible. In In re Fagerdala USA-Lompoc, Inc., the Court found it was—the secured creditor did not act in bad faith when it purchased a subset of all general unsecured claims and voted those claims against confirmation because it was acting to further its own economic interest as a creditor, without some extrinsic ulterior motive.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Mintz, Ninth Circuit
    Location:
    USA
    Firm:
    Mintz

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