March 5, 2024
Non-Judicial Foreclosures and Junior Federal Non-IRS Liens
As many of you may be aware, the impact of the Show Me State Premium Homes, LLC v. McDonnell, 74 F.4th 911, 914 (8th Cir. 2023), reh’g denied, No. 22-1894, 2023 WL 5920101 (8th Cir. Sept. 12, 2023) 8th Circuit…
February 27, 2024
Sales Aren’t So Safe – Massachusetts Bankruptcy Court Upholds Debtor’s Power to Undo Foreclosure Sale
In a unique opinion out of the District of Massachusetts (resurfacing the problematic issue of bankruptcy debtor’s strong-arm powers), the bankruptcy court in In re Neiva, 2024 WL 544049 determined that a bankruptcy debtor has the ability to unwind a…
February 13, 2024
New Jersey Legislature passed the Community Wealth Preservation Act
The New Jersey Legislature passed the Community Wealth Preservation Act (“CWPA”) on January 12, 2024 expanding access for certain buyers to purchase properties at sheriff sales. CWPA addresses two components of the sheriff sale process in New Jersey: (1) the notice of…
September 25, 2023
Foreclosure Jury Trials and Waiver of Right to Foreclose
A New South Carolina Case Changes the Analysis for Counterclaims and May Change Much More. In South Carolina, foreclosures are usually tried by a judge sitting without a jury. A foreclosure is an equitable cause of action, and there is…
April 21, 2023
Arkansas Foreclosure Update – The Continuing Saga Resulting from Davis v. PennyMac
As you may recall from previous updates, Arkansas foreclosure law has been evolving for the past several years as a result of the Davis v. PennyMac opinion from the Arkansas Supreme Court in May 2020. As a result of the Davis decision, the Arkansas…
March 27, 2023
The Ironclad Protection of §1322(b)(2) [The “Anti-Modification” Provision] Controls Over Confirmed Chapter 13 Plan
At the end of the plan period, the chapter 13 trustee issued the notice of plan completion, indicating that the creditor had been paid the amount proposed in the plan (the $6,817.42 in the creditor’s claim), and the creditor’s entire…
October 6, 2022
California Supreme Court Says Lenders Owe No Duty of Care in Loan Modification Negotiations
In a 2020 filed case involving the reasonableness and validity of “release fees” and late fees charged by the lender to the borrower, the Honorable Phyllis Hamilton, United States District Court Judge for the Northern District of California, held that both “release fees” and…
September 14, 2022
California Supreme Court Says Lenders Owe No Duty of Care in Loan Modification Negotiations
On March 7, 2022, the California Supreme Court finally settled the issue on whether financial institutions or loan servicers owe their borrowers a duty of care when considering a loan modification request. In Sheen v. Wells Fargo, No. 8258019 (Cal, Mar…
September 8, 2022
Eleventh Circuit Issues New Opinion in Hunstein v. Preferred Collection
In the Hunstein v. Preferred Collection decision issued on Thursday, September 8, 2022, the United States Court of Appeals for the Eleventh Circuit (Alabama, Georgia, Florida), after issuing opinions and vacating the same twice before, now holds that: (1) the…
August 11, 2021
Florida Foreclosure Judgments – General Lien Statute Inapplicable, BK Anti-Modification Protection Applies
In Re Koessler (2021 WL 3375824) decided on August 3, 2021 in the Southern District of Florida is a solid win and sigh of relief for mortgage creditors in Florida bankruptcy proceedings. In Koessler, Chief Judge Laurel Isicoff was confronted…