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    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
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    8th Cir. BAP Holds Lien on Real Property Held in Tenancy by the Entireties Was Avoidable
    2017-10-02

    The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently affirmed a bankruptcy court’s holding that a creditor held an unenforceable lien against a debtor’s real property because the property was owned by the entireties and the lien was thus avoidable under Bankruptcy Code § 522(f)(1). 

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

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Eighth Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Indiana Supreme Court Rejects Borrowers’ Argument Bankruptcy Discharge Wiped Out Mortgage Loan, Lien
    2017-04-10

    The Supreme Court of Indiana recently confirmed a mortgagee’s ability to seek an in rem judgment against property for which there was an outstanding lien balance after the borrowers obtained a discharge of their Chapter 7 bankruptcy.

    In so ruling, the Court distinguished the difference between an in rem and in personam judgment, and rejected the borrowers’ unsupported argument that the debt was paid in full by the time the mortgagee initiated foreclosure proceedings against the borrowers.

    Filed under:
    USA, Indiana, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    6th Cir. Rejects Debtor’s Chapter 11 BK Plan as Not Proposed in Good Faith
    2016-02-11

    The U.S. Court of Appeals for the Sixth Circuit recently held that a bankruptcy court clearly erred in its finding that a debtor proposed a Chapter 11 plan in good faith, when the secured mortgagee would be paid only in part and very slowly after 10 years with no obligation by the debtor to maintain the building and obtain insurance, while a second class would be paid in full in two payments of $1,200 each over 60 days.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, United States bankruptcy court, Fifth Circuit, Sixth Circuit
    Authors:
    Thomas R. Dominczyk
    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
    Illinois App. Court (1st Dist) Holds Challenges to Foreclosure Failed for Lack of Diligence
    2017-09-27

    The Illinois Appellate Court for the First District recently held that the trial court correctly affirmed a judicial sale and denied a motion to reconsider where an intervenor and alleged owner of the property claimed the mortgage was wiped out by the death of the sole mortgagor, who was only a joint tenant in the property at the time the mortgage was executed.

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure, Illinois Appellate Court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    9th Cir. Holds FDCPA §1692f(6) Applies to Non-Judicial Foreclosures
    2017-04-10

    The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a Fair Debt Collection Practices Act claim arising out of a non-judicial foreclosure. The Ninth Circuit ruled that section 1692f(6) of the FDCPA applies to non-judicial foreclosure activity.

    A copy of the opinion in Dale Dowers v. Nationstar Mortgage, LLC is available at: Link to Opinion.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure, Fair Debt Collection Practices Act 1977 (USA), Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    FYI: SD Fla Bankr Denies Mortgagee's Motion to Reopen Chapter 7 Case to Compel Surrender of Real Property
    2016-02-08

    The U.S. Bankruptcy Court for the Southern District of Florida recently denied a mortgagee's motion to reopen a Chapter 7 case to compel the surrender of real property, citing a five-year delay in filing the motion.

    In so ruling, the Court agreed with an earlier ruling from the U.S. Bankruptcy Court for the Middle District of Florida (In re Plummer, 513 B.R. 135 (Bankr. M.D. Fla. 2014)), distinguishing "surrender" from "foreclosure," and holding that a creditor cannot use the Bankruptcy Code to circumvent the obligations imposed by state law. 

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    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

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