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    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
    7th Cir. Holds TILA Claim for Failing to Rescind After Notice Was Time Barred by 1-Year SOL
    2017-12-20

    The U.S. Court of Appeals for the Seventh Circuit recently held that, following the confirmation of a foreclosure sale in Illinois, the only remedy available to a borrower under 15 U.S.C. § 1635 was damages, and therefore the one-year limitation period under 15 U.S.C. § 1640(e) applied and his claims were barred despite the fact that he provided rescission notices within three years of the loan closing, and despite the fact that the parties engaged in back-and-forth communications after the demands were first sent.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Statute of limitations, Foreclosure, Truth in Lending Act 1968 (USA), Seventh Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    9th Cir. Bankruptcy Panel Affirms Dismissal of ‘Wrongful Securitization’ Allegations
    2017-07-05

    The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of an adversary proceeding without leave to amend, holding that:

    (a) the debtors failed to state a claim for wrongful foreclosure under California law;

    (b) the debtors failed to state a claim for breach of contract or breach of the implied covenant of good faith and fair dealing because they were not third-party beneficiaries of the pooling and servicing agreement;

    Filed under:
    USA, California, Banking, Insolvency & Restructuring, Litigation, Real Estate, Securitization & Structured Finance, Maurice Wutscher LLP, Bankruptcy, Foreclosure, Good faith, Mortgage-backed security, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Fla. App. Court (5th DCA) Holds Borrower’s Surrender in Bankruptcy Resolves Contested Foreclosure
    2016-06-13

    As an example of the conflicting and contrasting court rulings on the effect of surrender in bankruptcy (see our prior update), the District Court of Appeal of the State of Florida, Fifth District, recently dismissed a borrower’s appeal from a final judgment of foreclosure because the borrower admitted during the course of his bankruptcy proceeding that he owed the mortgage debt and stated his intention to surrender the mortgage

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Debt, Mortgage loan, Foreclosure, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    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
    Fla. App. Court (3rd DCA) Reverses Dismissal of Foreclosure on ‘Prior Servicer’s Records’ Issue
    2017-12-14

    Following rulings from other appellate courts in other appellate districts, Florida’s Third District Court of Appeal recently reversed a trial court’s order involuntarily dismissing a mortgagee’s foreclosure against a borrower holding that the mortgagee’s witness from its current mortgage servicer laid a sufficient foundation at trial to admit business records from a prior mortgage servicer necessary to prove a default under Florida’s business records exception to hearsay.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure
    Authors:
    Ernest Wagner
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    10th Cir. Rejects Action to Void Foreclosure Sale Based on Prior TILA Cancellation Demand
    2017-07-03

    The U.S. Court of Appeals for the Tenth Circuit recently held that a borrowers’ federal court claim attempting to void a foreclosure sale based on a prior demand to cancel the loan under the federal Truth in Lending Act (TILA) was barred by claim preclusion for failure to raise the issue in a prior state court action.

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

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Res judicata and issue estoppel, Mortgage loan, Deed of trust (real estate), Truth in Lending Act 1968 (USA)
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Holds Tax Buyers Not Subject to TILA
    2016-06-02

    The U.S. Court of Appeals for the Fifth Circuit recently held that a transfer of a tax lien to a tax buyer under Texas law does not constitute an extension of credit that is subject to the federal Truth in Lending Act (TILA).

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

    Filed under:
    USA, Texas, Banking, Insolvency & Restructuring, Litigation, Real Estate, Tax, Maurice Wutscher LLP, Property tax, Debt, Tax lien, Truth in Lending Act 1968 (USA), Consumer Financial Protection Bureau (USA), Fifth 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
    Fla. App. Court (4th DCA) Reverses Dismissal of Re-Filed Foreclosure Action Citing Bartram
    2017-10-19

    The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action based on res judicata and the statute of limitations, holding that the Florida Supreme Court’s recent ruling in Bartram v. U.S. Bank National Association and its progeny controlled.

    In so ruling, the Court confirmed that a second foreclosure action is not barred by the statute of limitations or res judicata where continuing payment defaults occurred within the five years preceding the filing of the second foreclosure action. 

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Statute of limitations, Res judicata and issue estoppel, Mortgage loan, Foreclosure, Florida Supreme Court
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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