Author name: jsinger

Massachusetts high court denies eviction from a home foreclosed in a private sale unless there is proof of a right to foreclose

/ Mortgages, Real Estate Transactions, Statute of Frauds, Title Issues

In an extension of its earlier ruling in U.S. Bank Nat’l Ass’n v. Ibanez, 941 N.E.2d 40 (Mass. 2011) that a foreclosure is invalid unless the party seeking foreclosure proves that it owns the mortgage (has the right to foreclose) at the time of the foreclosure, the Supreme Judicial Court of the Commonwealth of Massachusetts ruled in the case of Bank of New York v. KV Bailey, 2011 WL 3307553 (Mass. 2011),  that a homeowner could challenge an eviction from his home even though it was foreclosed in a private sale to determine whether the mortgagor/lender had the power to foreclose. Because Massachusetts uses private foreclosure rather than court-supervised foreclosure, the ruling extends court supervision of foreclosure to homeowners by effectively requiring foreclosing parties to have proof of the right to foreclose before the foreclosure sale. It does so by denying power to evict an occupying homeowner without proof of the right to possession of …

Massachusetts high court denies eviction from a home foreclosed in a private sale unless there is proof of a right to foreclose Read More »

Connecticut Supreme Court refuses to enforce unconscionable post-nuptial agreement

/ Marital Property

The Connecticut Supreme Court ruled in Bedrick v. Bedrick, 17 A.3d 17 (Conn. 2011) that post-nuptial agreements may be enforceable but that they are subject to stricter standards than premartial agreements. Moreover, in this case, the court found the contract unconscionable at the time of trial and thus void and unenforceable. Such agreements must be examined to ensure that they are fair and equitable at the time of divorce and whether enforcement would “work an injustice.”

Second Circuit upholds “hot news” doctrine

/ Copyright, Intellectual Property

A recent case replays the conflict in the famous case of INS v. AP (International News Service v. Associated Press), 248 U.S. 215 (1918), which held that a news organization could stop a rival from selling news it had gathered for a short period when the news was still hot. In effect, the doctrine created a property right against a competitor’s use of the information for commercial purposes during the initial sales period. The Second Circuit reaffirmed that doctrine in the case of Barclays Capital Inc. v. Theflyonthewall.com, 2011 WL 2437554 (2d Cir. 2011), while simultaneously clarifying that noncompetitors were perfectly free to transmit the information without limit once it had been made public. The court held that investment banks could not stop a financial Web site from publishing on the Internet the research conclusions of the banks’s analysts once they were released to the public. At the same time, the banks …

Second Circuit upholds “hot news” doctrine Read More »

NY and Delaware AGs investigate mortgage bundling for requisite written documentation of the chain of title

/ Mortgages, Statute of Frauds

The New York and Delaware Attorneys General have asked for information from two trustees of mortgage bundles (Bank of New York Mellon and Deutsche Bank) to determine whether they complied with all contractual obligations in the process of bundling the mortgages and selling shares to investors. The trusts that bundled the mortgages were supposed to ensure that proper paperwork was completed in transferring “ownership” of  the mortgages to the trust to ensure that the investors were actually investing in something that the trust owned. Many of the bundling contracts required the trust to examine the individual mortgages to ensure a proper chain of title and failure to do so would constitute a breach of contract that could lead to the whole thing unraveling. Read article

NY court holds that MERS cannot bring foreclosure actions

/ Mortgages, Real Estate Transactions, Statute of Frauds

An appellate court in New York has held that MERS (Mortgage Electronic Registration Systems) cannot file foreclosure lawsuits in its own name because it does not “own” the mortgage, having neither the right to payment under the note nor the right to foreclose. Bank of N.Y. v. Silverberg, 2011 WL 2279723 (N.Y. App. Div. 2011). Despite the fact that the parties put MERS’s name on the mortgage, it is not the real party in interest, having no right to payment under the note

Eighth Circuit upholds finding that landlord sexually harassed a tenant in violation of the Fair Housing Act but affirms the trial court’s reduction of the jury’s punitive damages award

/ Antidiscrimination Law, Due Process, Fair Housing Act, Leaseholds

In Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010),the Eighth Circuit upheld a trial court ruling that landlord sexually harassed tenant in violation of the Fair Housing Act (FHA), but it affirmed the  trial court’s reduction of the jury’s punitive damages award. The jury awarded $13,685 in compensatory damages and $250,000 in punitive damages. The trial court reduced the punitive damages award to $20,527.50. The landlord engaged in a variety of inappropriate behavior, rubbing tenant’s arm, standing close to her and rubbing his genital area, following tenant and her sister into the bedroom while conducting an inspection and they were in their pajamas and then refusing to leave until asked to do so three times, calling tenant while drunk at 2:30 or 3:00 am.  The Eighth Circuit held that a claim for hostile housing environment created by sexual harassment is actionable under the FHA, that there was sufficient evidence to find that landlord’s …

Eighth Circuit upholds finding that landlord sexually harassed a tenant in violation of the Fair Housing Act but affirms the trial court’s reduction of the jury’s punitive damages award Read More »

Maine Supreme Court denies foreclosure when the lender filed fraudulent affidavits

/ Mortgages, Real Estate Transactions, Statute of Frauds

On May 19, 2011, the Maine Supreme Court denied summary judgment on a foreclosure claim when it found that affidavits filed by the lender were suspect and possibly fraudulent. HSBC Mortgage Services, Inc. v. Murphy, 2011 Me. LEXIS 59, 2011 ME 59 (Me. 2011). The question was whether the note had been validly assigned from the original lender to the entity now seeking to foreclose. The court found the affidavits testifying to that effect to be inherently untrustworthy because (1) one affidavit swearing that a mortgage assignment had been recorded was signed before the assignment was recorded, (2) another affidavit and assignment suggested the same person was simultaneously the vice president of both the assignor and the assignee, (3) an affidavit’s jurat was dated four days before the affidavit was signed, and (4) an affidavit in support of a summary judgment motion that was denied provided information vital to the entry of a …

Maine Supreme Court denies foreclosure when the lender filed fraudulent affidavits Read More »

Washington Supreme Court adopts relative hardship doctrine and refuses to order a house removed when it was unwittingly built on land owned by another

/ Easements, Servitudes, Statute of Frauds, Trespass

Defendants unknowingly built their house on land that belonged to the plaintiff who also did not know that the land belonged to him. The mistake was discovered after the house was built and plaintiff sued to eject the trespassers from his land. The Washington Supreme Court denied injunctive relief, adopting the relative hardship doctrine. The court granted plaintiff damages for the value of the land encroached on by his neighbor’s structure but denied plaintiff an injunction ordering the structure removed. Proctor v. Huntington, 238 P.3d 1117 (Wash. 2010).

Oral promise to convey land enforceable when promisee builds a home in reliance on the promise

/ Real Estate Transactions, Statute of Frauds

In a straight-forward application of the usual rule, the Maine Supreme Judicial Court recognized an exception to the statute of frauds by enforcing an oral promise to convey land when the promisee relied on the promise and built a house on the land. In this case, the promise was made by parents to their son and daughter. The daughter built a home on the land with the parents’ assistance and then asked for a deed to the land. When the parents refused, she sued them seeking a court order to them to transfer title to the land to her and the court granted her request. Harvey v. Dow, 11 A.3d 303 (Me. 2011).

Scroll to Top