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    9th Cir. Holds Mortgagee May Challenge HOA Foreclosure Sale That Violates Bankruptcy Automatic Stay
    2021-07-22

    The U.S. Court of Appeals for the Ninth Circuit recently reversed a trial court’s order granting summary judgment in favor of the buyer at a homeowners association’s non-judicial foreclosure sale that was conducted in violation of the automatic stay in the borrower’s bankruptcy, and against a mortgagee whose interest in the foreclosed property would have been extinguished.

    In so ruling, the Ninth Circuit held that a first deed of trust lienholder may set aside a completed super-priority lien foreclosure sale if the sale violates the bankruptcy automatic stay.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Ninth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Fla. App. Court (2nd DCA) Holds HELOC Instrument Not Self-Authenticating Article 3 Note
    2018-05-28

    The District Court of Appeal for the Second District of Florida recently affirmed an order involuntarily dismissing an action to foreclose a second mortgage which secured a home equity line of credit.

    In so ruling, the Appellate Court upheld the trial court’s holding that the promissory note for the relevant home equity line of credit was not admissible into evidence because it was nonnegotiable, and thus, not a self-authenticating instrument.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    9th Cir. Holds Federal Foreclosure Bar Preempts Nevada HOA Superpriority Statute
    2017-09-08

    The U.S. Court of Appeals for the Ninth Circuit recently held that the Federal Foreclosure Bar’s prohibition on nonconsensual foreclosure of assets of the Federal Housing Finance Agency preempted Nevada’s superpriority lien provision and invalidated a homeowners association foreclosure sale that purported to extinguish Freddie Mac’s interest in the property.

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

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure, Federal Housing Finance Agency, Ninth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Illinois App. Court (2nd Dist) Holds FHA’s ‘Face to Face’ Meeting Not Required When Loan Discharged in Bankruptcy
    2017-03-13

    The Appellate Court of Illinois, Second District, recently affirmed summary judgment in favor of a mortgagee that failed to meet the FHA requirement to either have a face-to-face meeting with the borrowers or to make “a reasonable effort” to arrange a face-to-face meeting before filing foreclosure, because doing so would have been a futile act after the borrowers’ mortgage loan debt was discharged in bankruptcy and they did not reaffirm the debt.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Foreclosure, Federal Housing Administration
    Authors:
    Ernest Wagner
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Florida bankruptcy court holds debtor who ‘surrenders’ property in BK cannot impede foreclosure
    2015-10-19

    The U.S. Bankruptcy Court for the Middle District of Florida recently held that, at a minimum, “surrender” under Bankruptcy Code §§ 521 and 1325 means a debtor cannot take an overt act that impedes a secured creditor from foreclosing its interest in secured property.

    In so holding, the Court found that actively contesting a post-bankruptcy foreclosure case is inconsistent with a “surrender” of the property.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Foreclosure, Secured creditor, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    2nd Cir. Holds Debtor Entitled to Bankruptcy Homestead Exemption for Non-Primary Residence
    2021-01-12

    The U.S. Court of Appeals for the Second Circuit recently held that property in which a debtor’s dependent son lived part-time with his father qualified for the so-called homestead exemption contained in section 522(d)(1) of the Bankruptcy Code, regardless of state law.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Holds Mortgagee Needed to Issue New Acceleration Notice Before Foreclosing
    2018-05-23

    The U.S. Court of Appeals for the Fifth Circuit held that where a mortgagee rescinded a notice of intent to accelerate and then filed a foreclosure action without first issuing a new notice of intent to accelerate, it failed to meet its burden to show clear and unequivocal notice of intent to accelerate prior to filing suit, and therefore was not entitled to foreclosure judgment.

    Accordingly, the Fifth Circuit reversed the ruling of the trial court granting summary judgment in favor of the bank, and dismissed the foreclosure action.

    Filed under:
    USA, Texas, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Fifth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Fla. App. Court (5th DCA) Reverses Foreclosure Judgment That Excluded Interest, Escrow
    2017-08-24

    The District Court of Appeal of the State of Florida, Fifth District, recently reversed final judgment of foreclosure entered in favor of a mortgagee that omitted interest and escrow amounts due, and remanded to the trial court to modify judgment to include these amounts.

    In so ruling, the 5th DCA determined that the mortgagee met its burden to provide the trial court with figures necessary to calculate the interest and escrow amounts through its witnesses’ testimony and evidence.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    4th Cir. Holds Escrow, Other Principal Residence Mortgage Loan Items Not Subject to Chapter 13 Bifurcation
    2017-02-13

    The U.S. Court of Appeals for the Fourth Circuit recently held that “escrow funds, insurance proceeds, or miscellaneous proceeds” are protected by the anti-modification provisions for Chapter 13 bankruptcies as “incidental property” under the definition of “debtor’s principal residence” in the federal Bankruptcy Code.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Fourth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Bankruptcy Court holds wholly unsecured second mortgage lien may be ‘stripped off’
    2015-05-15

    The U.S. Bankruptcy Court for the Southern District of Florida recently held that a wholly unsecured second mortgage lien may be “stripped off,” even if the property encumbered by the lien is no longer part of the bankruptcy estate due to abandonment by the bankruptcy trustee.

    The Bankruptcy Court did not specifically reference the consolidated cases now before the U.S. Supreme Court in Bank of Amer. v. Toledo-Cardona, and Bank of Amer. v. Caulkett, which should resolve the issue of whether a wholly unsecured lien may be stripped off in a Chapter 7 bankruptcy.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Unsecured debt, United States bankruptcy court
    Authors:
    Ralph T. Wutscher
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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