Author name: jsinger

Banks stop foreclosures because of flaws in proof of standing

/ Mortgages, Statute of Frauds

Three large lenders, GMAC Mortgage, JPMorgan Chase, and Bank of America, have all suspended foreclosures because of irregularities in documents used to proof that they are entitled to foreclose. Various newspaper articles have talked about “technical” problems or “paperwork” problems but the real issue is that banks have obligations to prove they “own” the mortgage and have a right to foreclose, at least in states that require court proceedings for foreclosure. The problem is that many lenders did not keep accurate written records of all the assignments of these mortgages. The statute of frauds in every state requires mortgages to be in writing and some states require them to be recorded. In lieu of providing a paper trail, some lenders have provided courts with affidavits that swear that the signing party has seen proof that the lender owns the mortgage and is entitled to foreclose. But some of the affiants …

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Federal judge denies summary judgment in case alleging town interference in granting permits for housing for homeless persons

/ Fair Housing Act

South Middlesex Opportunity Council, Inc. v. Town of Framingham, 2010 WL 3607481 (D. Mass. 2010). In this case, Judge Douglas Woodlock allowed a suit to proceed against a town and individual members of the town meeting, the board of selectmen and the town planning board in both their individual and official capacities alleging that defendants violated the Fair Housing Act by blocking plaintiff non-profit organizations from obtaining necessary approvals to establish housing to provide residential treatment and support to homeless and at-risk families, some of which were undergoing substance abuse rehabilitation and some of which may have had criminal histories. The court found that the town had repeatedly delayed in issuing permits and created other procedural hurdles and that evidence supported the allegation that the town did so for discriminatory reasons. The court found evidence of discriminatory statements by individual defendants and evidence of disparate treatment of similarly situated projects by …

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New Massachusetts law protects rent-paying tenants from being evicted from foreclosed property

/ Leaseholds, Mortgages

Assuming Governor Deval Patrick signs the law, the Massachusetts legislature just passed a statute called “An Act to Stabilize Neighborhoods” that protects tenants from being evicted from property after foreclosure as long as they are paying the rent. Tenants can be evicted if the property is being sold to a third party, but if the lender buys the property at foreclosure, it must continue renting to the tenant–and complying the landlord’s obligations under state law to provide habitable housing. The law also requires lenders to have at least one meeting with the defaulting borrower to try to work in good faith to negotiate a new arrangement; this must happen before the bank forecloses on the property. If the lender does not do this, it must wait an extra two months before beginning foreclosure proceedings.  The bill also criminalizes mortgage fraud. read article

Argentina & Iceland approve same-sex marriages

/ Marital Property, Sexual Orientation

On July 15, 2010, the Argentine Senate voted to approve same-sex marriages, adding its voice to a similar bill approved in May by the lower house. Because President Cristina Fernandez de Kirchner supports the bill, it will become the law. The Parliament in Iceland unanimously approved a similar bill (by a vote of 49-0) on June 12. Argentina and Iceland join the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, and Portugal in providing full marriage rights for same sex-couples in addition to the states of Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and the District of Columbia, although these state-law based marriages are not recognized by the federal government in the United States because of federal Defense of Marriage Act. read article

Federal Judge rejects DOMA’s denial of federal recognition of same-sex marriages valid in the states

/ Marital Property, Sexual Orientation

Judge Joseph L. Tauro of the District Court of Massachusetts ruled that the federal Defense of Marriage Act (DOMA) violates the constitution by prohibiting the federal government from recognizing same-sex marriages that are valid under state law. In one opinion, he ruled that the law violates the Tenth Amendment by intruding on areas reserved to the states, noting that family law (including the law of marriage) has traditionally been regulated by state law and not federal law. Commonwealth v. U.S. Dept. of Health and Human Services, 2010 WL 2695668 (D. Mass. 2010).  In a separate opinion, he ruled that DOMA violates the equal protection clause because the government could not provide any rational basis for failing to recognize same-sex marriages. Gill v. Office of Personnel Management, 2010 WL 2695652 (D. Mass. 2010). read article

Florida beach renewal program not a taking; Supreme Court fails to resolve judicial takings issue

/ Takings

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S.Ct. 483, 175 L.Ed.2d 305, 2009 U.S. LEXIS 7593, 2010 WL 2400086 (June 17, 2010), the Supreme Court held that the Florida Supreme Court did not effect an unconstitutional taking of property when it held that a state-funded beach renewal project did not take property rights in violation of the state constitution’s takings clause. The state had funded beach renewal projects to deposit new sand on eroded beaches; once that occurred, the statute set a fixed boundary between public rights in the restored lands and private property rights in the upland; that fixed line was placed where the mean-high tide line had been prior to the restoration project. The Court unanimously held (8-0, with Justice Stevens not participating) that the Florida statutory program as interpreted by the Florida Supreme Court did not constitute a taking of of any …

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Mass. Attorney General agrees to a settlement with Countrywide Financial Corp. reducing principal amounts owed by borrowers by as much as 30 percent

/ Mortgages

Litigation concerning subprime mortgages granted by Countrywide Financial Corp. (now owned by Bank of America) has been settled in Massachusetts. Attorney General Martha Coakley obtained agreement to lower the principal amount owed by borrowers whose properties are worth less than the outstanding debt (so-called “under water properties”) by as much as 30 percent. Some borrowers who lost their homes through foreclosure of such mortgages may get some compensation from a $2.4 million fund set up for that purpose. The agreement will provide about $18 million in mortgage help for Massachusetts homeowners and it  is part of a wider nationwide settlement that will provide about $3 billion to 45,000 homeowners across the nation. The settlement builds on a 2008 agreement between Bank of America and numerous state attorneys general to provide loan modifications for certain borrowers. read article

Another N.Y. court refuses to grant a foreclosure when the bank failed to follow strict procedures to prove it owned the note

/ Mortgages

Another judge has refused to grant a foreclosure when  the bank could not prove that it validly acquired the mortgage by assignment from the original mortgagee. Deutsche Bank Nat. Trust Co. v. McRae, 894 N.Y.S.2d 720 (Sup. Ct. 2010). The court emphasized that foreclosure actions can only be brought by those who have title when the action is commenced and that mortgages can be assigned in two ways—by delivery of the note and mortgage by the assignor to the assignee with the intent to assign or by a written instrument of  assignment. The written assignment in this case was insufficient because it assigned the mortgage but not the note (the underlying contractual obligation). The plaintiff sought to introduce evidence of a note that was endorsed by the assignor with notice of assignment. However, the assignment was not dated and conflicted with the unsigned note attached to the plaintiff’s foreclosure  complaint, leading …

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Craigslist seeks to prevent discriminatory housing ads

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation

Craigslist.org now is seeking to prevent discriminatory housing ads (including roommate ads) on its website by posting the following message before one is allowed to fill out a classified housing advertisement: “Stating a discriminatory preference in a housing post is illegal, is prohibited on craigslist, and can be expensive:  you can be fined more than $10,000 for each discriminatory ad, plus damages in court, plus loss of license if you are a professional. Avoid phrases which could be interpreted as discriminating by race/color/origin (e.g. ‘hispanic area’), religion (e.g. ‘christian home’), age / familial status (e.g. ‘no kids’), disability, sexual orientation, or source of income. The words you choose can cost you – get the facts and avoid being prosecuted under fair housing law.”

Same-sex marriage in the District of Columbia

/ Marital Property, Sexual Orientation

Beginning March 4, 2010, same-sex couples may apply for a marriage license in Washington, D.C. and get married after the requisite waiting period. read article. The D.C. City Council passed the Religious Freedom and Civil Marriage Equality Amendment Act which allows same-sex marriage. See D. C. Act 18–248; 57 D. C. Reg. 27 (Jan. 1, 2010). In addition, the Attorney General of Maryland recently announced that Maryland would recognize same-sex marriages performed elsewhere since nothing in Maryland law precluded such recognition. On March 2, 2010, Chief Justice Roberts refused to issue a stay preventing the law from going into effect. Jackson v. District of Columbia Board of Elections and Ethics, No. 09A807, 559 U.S. — (Mar. 2, 2010).

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