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    Fla. App. Court (2nd DCA) Holds Trial Court Erred in Applying Texas Law to Foreclosure Deficiency Claim
    2017-08-01

    The District Court of Appeal of the State of Florida, Second District, recently held that where loan documents provided that Florida law applied to foreclosure claims, the trial court erred in applying Texas law because the deficiency claim in the case was part of the Florida foreclosure process.

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

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    6th Cir. BAP Holds In Rem Foreclosure Not Disguised In Personam Collection Effort
    2016-08-15

    The Bankruptcy Appellate Panel of the Sixth Circuit recently held that a condominium unit owners association did not violate a debtor’s Chapter 7 discharge order by scheduling a sheriff’s sale to complete a prepetition foreclosure.

    Rejecting the bankruptcy court’s conclusion that the in rem foreclosure sale was scheduled to induce payment of discharged pre-petition condominium fees, the Sixth Circuit BAP noted that “all foreclosure litigation potentially can induce payments of discharged debt to avoid a foreclosure sale.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Debt, Mortgage loan, Foreclosure, Condominium, In rem jurisdiction, Bankruptcy discharge, Title 11 of the US Code, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Ohio Supreme Court Holds Mortgagee May Use Parole Evidence to Show Intent of Mortgagor
    2019-01-15

    The Supreme Court of Ohio recently held that a mortgagee may enforce a mortgage against a mortgagor who signed, initialed, and acknowledged the mortgage even though the body of the mortgage agreement does not identify the mortgagor by name.

    In so ruling, the Supreme Court of Ohio allowed a mortgagee to use parole evidence to determine the mortgage signatory’s intent where there is an ambiguity.

    Filed under:
    USA, Ohio, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Bankruptcy Appellate Panel
    Authors:
    Ernest Wagner
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    10th Cir. Holds Borrower’s FDCPA, Other Claims Not Barred by Rooker-Feldman After Non-Judicial Foreclosure
    2018-02-12

    The U.S. Court of Appeals for the Tenth Circuit recently held that the Rooker-Feldman doctrine did not bar the trial court from considering the plaintiff’s claims because she was not challenging or seeking to set aside an underlying non-judicial mortgage foreclosure proceeding under Colorado law.

    Accordingly, the Tenth Circuit remanded to the trial court to determine what effect, if any, the non-judicial proceeding had under the doctrines of issue and claim preclusion.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure, Deed of trust (real estate), Fair Debt Collection Practices Act 1977 (USA), Tenth Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    9th Cir. Holds ‘Free and Clear’ Bankruptcy Sale Was Not Rejection of Unexpired Leases, Did Not Implicate 11 U.S.C. § 365(h)
    2017-07-24

    The U.S. Court of Appeals for the Ninth Circuit recently held that a bankruptcy trustee was authorized to sell real estate free and clear of unexpired leases under 11 U.S.C. § 363(f), and the sale was not a rejection of the unexpired leases and therefore did not implicate 11 U.S.C. § 365(h).

    In so ruling, the Ninth Circuit adopted the minority approach established in Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d 537 (7th Cir. 2003), which held that sections 363 and 365 may be given full effect without coming into conflict with one another.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Ninth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    ED NY Holds Debtor May Not Force Mortgagee to Take Title in Collateral
    2016-06-14

    The U.S. District Court for the Eastern District of New York recently held that a confirmable Chapter 13 plan cannot both “vest” title to real property and “surrender” that property to a secured lender, and that the secured lender may refuse to accept the vesting in satisfaction of its claim.

    Thus, the Court held that a debtor may not force the transfer of title in collateral to a secured creditor in satisfaction of the secured creditor’s claim, without the consent of the secured creditor.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Collateral (finance), Interest, Foreclosure, Secured creditor
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    A Tale of Two Fishers: Unsettling Ohio’s ‘Well-Settled Law’ on the Proper Statute of Limitations for Mortgage Foreclosure Actions
    2018-11-27
    • A bankruptcy court in Ohio recently applied the incorrect statute of limitations in a mortgage foreclosure action.
    • Ohio’s statute of limitations jurisprudence has evolved from an accepted legal proposition derived from one opinion to supposedly well-settled law stating the complete opposite in another opinion.
    • Federal courts interpreting Ohio law must apply the correct statute of limitations to mortgage foreclosure actions.

    In the bankruptcy case of In re Fisher, 584 B.R. 185, 199–200 (N.D. Ohio Bankr.

    Filed under:
    USA, Ohio, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure, United States bankruptcy court, Ohio Supreme Court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Illinois App. Court (1st Dist) Holds Subsequent Foreclosure-Related Action Barred by Illinois ‘Single Refiling’ Rule
    2018-01-18

    The Appellate Court of Illinois, First District, recently dismissed a mortgagee’s “breach of mortgage contract” action as an impermissible second refiling following prior voluntary dismissals of a 2011 foreclosure complaint and 2013 action for breach of the promissory note based upon the same note and mortgage.

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Unjust enrichment
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    6th Cir. Bankruptcy Panel Holds Foreclosure Deficiency Judgment May Be Avoided
    2017-07-10

    The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Sixth Circuit recently held that a mortgage foreclosure deficiency judgment lien may be avoided under 11 U.S.C. § 522(f)(2), reversing the bankruptcy court’s ruling to the contrary.

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

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Property tax, Mortgage loan, Foreclosure, United States bankruptcy court, Sixth Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    SD Fla. Bankr. Rejects Mortgagee’s Attempt to Use Borrower’s Surrender in BK to Resolve Contested Foreclosure
    2016-06-13

    The U.S. Bankruptcy Court for the Southern District of Florida recently denied a creditor’s motion to compel the debtor to surrender mortgaged property and also denied the debtor’s motion to stay the case, holding that a chapter 7 debtor who indicates surrender of real property in his statement of intention is not obligated to surrender that property to the lienholder, whether or not the property is administered by the chapter 7 trustee.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Foreclosure, Motion to compel, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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