Mortgages

The New Jersey Supreme Court allowed a bank to foreclose on property without direct evidence that it had the right to foreclose. Ordinarily, the foreclosing entity must produce the note that memorializes the underlying debt. The UCC allows foreclosure when notes have been lost, UCC 3-309, if a “lost note affidavit” is filed with the court. In Investors Bank v. Torres, 2020 WL 3550701 (N.J. July 1, 2020), the homeowner borrowed money from one lender who filed a foreclosure action but subsequently dismissed that action and later executed a lost note affidavit. It then assigned the note and the mortgage to a second lender who brought foreclosure proceedings based on the lost note affidavit of the prior lender. Some courts have held that a lost note affidavit must state that the party attempting to enforce the note is the party that lost the note. See Dennis Joslin Co., LLC v. Robinson Broadcasting …

Bank has standing to foreclose despite inability to produce the note on which the mortgage was based Read More »

The Hawai’i Supreme Court held that deficiency judgments should be measured by the difference between the unpaid debt and the property’s fair market value rather than by reference to the difference between the unpaid debt and the foreclosure price. HawaiiUSA Federal Credit Union v. Monalim, 2020 WL 2079890 (Haw. 2020). The court cited the Restatement (Third) of Property, Mortgages §8.4 (Am. Law Inst. 1997), and found no language in the state mortgage foreclosure act that might have required a different result. This is the modern approach and has been adopted by statute or judicial decision in the majority of states. The reasoning behind this modern approach is the mortgage statutes have an underlying policy designed to define and protect the legitimate interests of both the borrower and the lender. The lender is entitled to get back the loan with interest, as specified in the note, and the mortgage lien on the property …

Hawaii Supreme Court measures deficiency judgment by reference to fair market value rather than foreclosure price Read More »

A California court has found a mortgage loan servicer to be liable for negligence in its handling of an application for a loan modification. Weimer v. Nationstar Mortgage, LLC, 260 Cal. Rptr.3d 712 (Ct. App. 2020. The court found loan servicers to be in a “special relationship” with the borrower and thus within an exception to the general rule of no tort duty for economic losses. After defaulting on a mortgage, the mortgagor entered into a loan modification process with Bank of America, and was told that he had been approved for a loan modification. Because of that approval, he made a downpayment of $50,000 to obtain the loan modification. The bank had promised him that once it received the downpayment, it would halt foreclosure proceedings. The bank transferred the loan servicing rights and obligations to Specialized Loan Servicing (SLS) which initially refused to honor the terms of the loan modification …

Loan servicer liable for negligent handling of loan modification negotiations Read More »

In a surprising development, the Eighth Circuit has held that mortgage debts are extinguished by foreclosure. CitiMortgage, Inc. v. Equity Bank, 2019 WL 5778343 (8th Cir. 2019). While some states, like California, generally prohibit deficiency judgments (claims against borrowers when the foreclosure sale does not garner enough to pay off the debt), most states allow lawsuits against the borrower to get an order to pay the rest of the debt agreed to by the original note. The promise to repay the loan is embodied in the “note” and the right to foreclose is embodied in a separate agreement (the “mortgage” or “deed of trust”) and the contractual obligation usually persists after foreclosure unless either state law or the contract language provide otherwise. The Eight Circuit ignored these traditional distinctions in CitiMortgage, and decided that the foreclosure ended both the contractual obligation and the lien on the property. The case involve the sale of 500 …

Eighth Circuit issues confused ruling turning recourse mortgages into non-recourse mortgages Read More »

Obduskey v. McCarthy & Holthus LLP, U.S., 139 S.Ct. 1029 (2019) resolved a conflict among federal courts on the question of whether those who pursue nonjudicial foreclosure of real property are “debt collectors” regulated by the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692a(6). The Court held that they are not and therefore immune for that statute’s regulatory requirements.

In a straight-forward application of the relevant recording statute, the Massachusetts Land Court has held that a son who received a deed to the land without notice of a prior reverse mortgage is not subject to the mortgage since it was not recorded and he had no other means to achieve notice of it. https://www.lexisnexis.com/clients/macourts/ 57 N.E.3d 1065 (Mass. App. Ct. 2016).