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    8th Cir. BAP Rules No Bankruptcy Jurisdiction Over Third-Party Challenge to Validity of Mortgage
    2018-07-26

    The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently applied the “conceivable effect” test in holding that a bankruptcy court lacked jurisdiction over a state law fraud claim raised by a third party regarding the validity of a lender’s lien, and therefore, declined to consider the issue on appeal.

    In so ruling, the Panel ruled that the state law fraud claim did not invoke “arising under” or “arising in” jurisdiction of the bankruptcy court because the state law fraud claim was not created or determined by the Bankruptcy Code, and could exist outside of bankruptcy.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Upon Further Review, Ninth Circuit Finds No Flag On the Play - Creditor Allowed to Block Tackle a Cram-Up Plan Following Claims Purchases
    2018-06-29

    Weil Summer Associate David Rybak contributed to this post

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Weil Gotshal & Manges LLP, US House Committee on the Judiciary, Ninth Circuit, United States bankruptcy court
    Authors:
    David Nigel Griffiths
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Unique challenges for commercial landlords posed by large-scale retailer bankruptcies
    2018-07-02

    (Excerpted from “Retail Bankruptcies – Protections for Landlords,” Practical Law Journal, May 2018, by Lars Fuller)

    Due to increasing competition from online sellers, recent years have seen a dramatic uptick in Chapter 11 bankruptcy filings by multistate brick-and-mortar retailers – some that have dozens, or even hundreds, of storefronts. These bankruptcies create challenges for the commercial landlords that own the shopping centers, malls and other establishments that those retailers rented.

    Filed under:
    USA, Insolvency & Restructuring, Real Estate, BakerHostetler, Bankruptcy
    Authors:
    Lars Fuller
    Location:
    USA
    Firm:
    BakerHostetler
    Ground Leases: Some Basics, Some Specifics and How to Make Them Financeable
    2018-06-29

    Ground leases are fairly common but sometimes overlooked property interests. A succinct but adequate definition of a ground lease was articulated by Herbert Thorndike Tiffany (Tiffany on Real Property § 85.50 [3d ed.]) as follows:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, BakerHostetler, Beneficial ownership, Title insurance
    Authors:
    Eben P. Clark
    Location:
    USA
    Firm:
    BakerHostetler
    Requirements for Massachusetts Homestead Exemption: Can Debtors Exempt Principal Residence Occasionally Rented as Short-Term Lodging?
    2018-06-25

    Should a Massachusetts homeowner be allowed to claim a homestead exemption in a principal residence that is also used for business or other commercial purposes? Answering this question several years ago as a matter of first impression, the U.S.

    Filed under:
    USA, Massachusetts, Insolvency & Restructuring, Litigation, Real Estate, K&L Gates LLP, United States bankruptcy court, US District Court for District of Massachusetts
    Authors:
    Sean R. Higgins , David A. Mawhinney
    Location:
    USA
    Firm:
    K&L Gates LLP
    Wisconsin Supreme Court Holds Second Foreclosure Action Was Not Barred, Despite First Action Having Been Dismissed with Prejudice
    2018-06-12

    The Wisconsin Supreme Court recently held that a mortgage servicer was not barred from bringing a second foreclosure action after the first action was dismissed with prejudice. SeeFederal Nat’l Mortg. Ass’n v. Thompson, 2018 WI 57 (Wis. 2018). In the case, a mortgage servicer brought a foreclosure action against the defendant borrower in November 2010, alleging that the borrower defaulted on his April 2009 loan payment. As part of the lawsuit, the servicer accelerated the debt.

    Filed under:
    USA, Wisconsin, Banking, Insolvency & Restructuring, Litigation, Real Estate, Riker Danzig LLP, Mortgage loan, Foreclosure, Wisconsin Supreme Court
    Authors:
    Michael R. O’Donnell
    Location:
    USA
    Firm:
    Riker Danzig LLP
    PA Supreme Court Holds Borrower Not Entitled to Atty’s Fees for Aff Def Under Act 6
    2018-06-12

    The Supreme Court of Pennsylvania recently held that a borrower is not entitled to attorney’s fees under the Pennsylvania Loan Interest Law (“Act 6”) relating to an affirmative defense raised in a mortgage foreclosure action that was subsequently discontinued without prejudice.

    Filed under:
    USA, Pennsylvania, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure, Pennsylvania Supreme Court
    Authors:
    Shannon Miller
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Wisc. Supreme Court Holds New Foreclosure Not Barred By Dismissal With Prejudice of Prior Foreclosure
    2018-06-06

    The Supreme Court of Wisconsin recently held that claim preclusion does not bar a mortgagee from proceeding with a foreclosure complaint despite a prior litigation which resulted in a dismissal with prejudice if the subsequent litigation is based upon a default and acceleration which occurred after the initial foreclosure proceeding.

    Filed under:
    USA, Wisconsin, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure, Wisconsin Supreme Court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Fla. App. Court (5th DCA) Holds Mortgagee Without Standing Must Pay Prevailing Borrower’s Fees
    2018-05-31

    The District Court of Appeal for the Fifth District of Florida recently denied a motion to reconsider an order awarding appellate attorney’s fees to borrowers who were the prevailing party on appeal, reversing judgment of foreclosure entered in favor of the mortgagee.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure, Wells Fargo
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    New York Supreme Court Holds Mortgagee Does Not Need to Send 90-Day Foreclosure Notice if Mortgagee Is Not a “Lender, an Assignee, or a Mortgage Loan Servicer”
    2018-05-24

    The Supreme Court of New York, Suffolk County, recently granted a foreclosing plaintiff summary judgment and held that plaintiff did not need to send a 90-day notice pursuant to RPAPL 1304 because plaintiff was not a lender, assignee, or mortgage loan servicer. SeeNIC Holding Corp. v. Eisenegger, 59 Misc. 3d 1221(A) (N.Y. Sup. Ct. 2018). In the case, one of plaintiff’s employees was relocating and defendant wanted to purchase the employee’s home.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Real Estate, Riker Danzig LLP, Mortgage loan, Foreclosure, New York Supreme Court
    Authors:
    Michael R. O’Donnell
    Location:
    USA
    Firm:
    Riker Danzig LLP

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