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    MD Ala. Holds Servicer Did Not Violate Discharge By Sending Periodic Statements, NOI, Delinquency Notices, Hazard Insurance Notices
    2017-05-18

    The U.S. Bankruptcy Court for the Middle District of Alabama recently held that a mortgage servicer did not violate the discharge injunction in 11 U.S.C. § 524 by sending the discharged borrowers monthly mortgage statements, delinquency notices, notices concerning hazard insurance, and a notice of intent to foreclose.

    Moreover, because the borrowers based their claims for violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., on the violation of the discharge injunction, the Court also dismissed their FDCPA claims with prejudice.

    Filed under:
    USA, Alabama, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Bankruptcy discharge, Fair Debt Collection Practices Act 1977 (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    CFPB Reopens Comment Period on ‘Periodic Statements in Bankruptcy’ Mortgage Servicing Amendments
    2016-04-26

    The Consumer Financial Protection Bureau (CFPB) recently reopened the comment period for its proposed amendments to the mortgage servicing related rules under RESPA and TILA that generally would require servicers to provide modified periodic statements to consumers who have filed for bankruptcy.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Consumer Financial Protection Bureau (USA)
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    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
    5th Cir. Holds Non-Compliance With Texas Foreclosure Rule Did Not Void Foreclosure
    2017-10-05

    The U.S. Court of Appeals for the Fifth Circuit held that the trial court had jurisdiction to hear a case based on a final foreclosure order entered in Texas state court, and that the borrowers’ due process rights were not violated where the state court entered a foreclosure order without first having a hearing, in violation of the state statute. 

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure, Fifth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    9th Cir. Applies Anti-Deficiency Protections to Debtors’ Bankruptcy Estate Where Property of Estate is Sold in Non-Judicial Foreclosure
    2017-05-12

    The U.S. Court of Appeals for the Ninth Circuit recently affirmed the Bankruptcy Appellate Panel’s determination that a creditor’s pre-bankruptcy, non-recourse lien on two debtors’ real property is extinguished following a non-judicial foreclosure sale.

    A copy of the opinion in In re: Salamon is available at: Link to Opinion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Foreclosure, Ninth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Ohio Supreme Court Rules Defectively Executed Mortgage Still Provides Constructive Notice
    2016-03-09

    The Supreme Court of Ohio recently held that a mortgage defectively executed but properly recorded still provides constructive notice of its contents.

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

    The borrowers executed a promissory note and a mortgage.  The notary acknowledgment on the mortgage was left blank.  The mortgage was recorded with the notary section incomplete. The mortgage was later assigned.

    Filed under:
    USA, Ohio, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Constructive notice, Ohio Supreme Court
    Location:
    USA
    Firm:
    Maurice Wutscher 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
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    NJ Supreme Court Enforces Modification Settlement Made Through Residential Mortgage Foreclosure Mediation Program
    2017-10-03

    The Supreme Court of New Jersey reversed the decision of the Appellate Court, and held that a settlement that a borrower and a lender reached during mediation pursuant to the Residential Mortgage Foreclosure Mediation Program was enforceable because the borrower fulfilled all contingent terms making the agreement permanent. 

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

    Filed under:
    USA, New Jersey, Arbitration & ADR, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, New Jersey Supreme Court
    Authors:
    Ernest Wagner
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    11th Cir. Holds Post-Discharge Monthly Mortgage Statements Not Prohibited
    2017-05-08

    The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a mortgage loan borrower’s federal Fair Debt Collection Practices Act and related state law claims because the defendant mortgagee was not a “debt collector” as defined by the FDCPA.

    In so ruling, the Court also rejected the borrower’s allegations that the monthly statements the mortgagee sent to the borrower after her bankruptcy discharge were impermissible implied assertions of a right to collect against her personally.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Class action, Mortgage loan, Bankruptcy discharge, Fair Debt Collection Practices Act 1977 (USA), United States bankruptcy court, Eleventh Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    8th Cir. BAP Holds Lien Against Only One Tenant by Entirety Avoidable in Bankruptcy
    2016-03-08

    The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently affirmed an order of the bankruptcy court granting a debtor’s motion to avoid a judgment creditor’s lien on the debtor’s residence held in tenancy by the entirety with his non-debtor spouse, holding because the lien “fixed” under the Bankruptcy Code and thus impaired the debtor’s claimed exemption, it was avoidable.

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

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Title 11 of the US Code, Eighth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Coleman Braun
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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