Showing 16 posts in Mortgage Foreclosure.

The Texas Supreme Court Has Spoken: Mortgage Servicers May Rewind and Restart the Statute of Limitations Clock Within the Same Letter

Last week, the Texas Supreme Court answered the Fifth Circuit’s certified question as to whether simultaneous rescission and reacceleration can reset the limitations period under Texas Law by holding that “a rescission that complies with the statute [Tex. Civil Practice and Remedies Code Section 16.038] resets limitations even if it is combined with a notice of reacceleration.” Moore v. Wells Fargo Bank, N.A., No. 23-0525, 2024 Tex. LEXIS 156, at *2 (Feb. 23, 2024). More ›

Maine Supreme Court Revisits Reverses its Controversial 2017 One-and-Done Foreclosure Decision

A highly contested and controversial legal defense to residential foreclosures in Maine resurfaced earlier this month with the Maine Supreme Judicial Court's decision in Finch v. U.S. Bank, N.A.

Finch renewed the legal question of whether a mortgage lender is barred from pursuing a second judicial foreclosure action after a trial court dismissed the first action on the grounds that the lender's pre-foreclosure notice of right to cure failed to comply with Maine statutory law, specifically Section 6111. More ›

New York Court of Appeals Decision Clarifies RPAPL Notice Requirements, Affirms Heightened Standard for Borrowers

Last year, as we reported, the Second Circuit requested that the New York Court of Appeals rule on two certified questions concerning predicate notices in foreclosure actions. On March 30, 2021, the Court of Appeals issued its decision in Schiffman on the questions certified by the Second Circuit concerning New York Real Property Actions and Proceedings Law (RPAPL) §§ 1304 (90-day predicate notice) and 1306 (pre-foreclosure filing with the superintendent of banks). More ›

Landmark New York Court of Appeals Decision Clarifying Calculation of Statute of Limitations in Mortgage Foreclosure Actions

The New York Court of Appeals reversed four Appellate Division decisions and decided in favor of the mortgagees in a consolidated decision issued on February 18, 2021, ruling, inter alia, that:

  • a demand letter which includes language that the debt "will be" accelerated expresses a possible future event and therefore does not constitute an unequivocal overt act which would accelerate the mortgage debt; 
  • a defective pleading which incorrectly references only the original terms of a loan – not the operative modification agreement – is insufficient to accelerate the mortgage debt;
  • a mortgagee's voluntary discontinuance of a foreclosure action is sufficient to revoke the acceleration created by the filing of that complaint; and
  • a mortgagee's motivation for the discontinuance and revocation of the acceleration is irrelevant to the Court's analysis.
More ›

Second Circuit Finds HUD Assignees Immune from State Statute of Limitations Claims

The mortgage foreclosure world continues to experience change at a moment's notice. Lenders continue to defend against borrower actions seeking to discharge their mortgages as time-barred, which in turn has led to the development of several defenses supported by the appellate courts. Whether it is lack of standing to accelerate the mortgage debt, revocation, or re-affirmation of the debt, all of these defenses are not as interesting—and powerful—as full immunity from the statute of limitations. In Windward Bora, LLC v. Wilmington Savings Fund Society, FSB, that's exactly what the Second Circuit found, and its decision could have a substantial impact for lenders in New York and elsewhere. More ›

New York Court of Appeals Finds There is "No Checklist" to Prove Standing to Foreclose, While Leaving Newly-Enacted RPAPL 1302-a for Another Day

The New York Court of Appeals issued two important end-of-the-year decisions on December 17, 2020 in a heavily litigated, affirmative defense in residential mortgage foreclosure actions: the lack of standing to foreclose.

In US Bank N.A. v. Nelson and JPMorgan Chase Bank, National Association v. Caliguri, the court analyzed both the pleading requirements for the defense and the standard of proof required to show standing to foreclose. In one-page, unanimous decisions, the court affirmed the Appellate Division's decisions, which both ruled in favor of the mortgagee. More ›

New York Courts Lift Suspension of Foreclosure Proceedings, Add Additional Conference Requirement

On July 24, 2020, the New York State Courts issued Administrative Order 157/20 (AO/157/20). Effective July 27, 2020, AO/157/20 removes the formal suspension of all residential foreclosures, but keeps a limited suspension of commercial foreclosures in place until August 19, 2020. Under this new directive, foreclosure actions can be resumed by courts first scheduling at least one conference. Those conferences are expected to be the same as the mandatory CPLR 3408 settlement conferences—even if settlement conferences were previously held—because the courts were directed to consider all aspects of the case, including "the effects, if any, that the COVID-19 pandemic has had upon the parties." More ›

New York State Enacts New Procedures for Residential Mortgage Forbearance Plans

On June 17, 2020, New York Governor Andrew Cuomo signed Senate Bills 8243C and 8428 into law, adding Section 9-x to the Banking Law. The section creates new procedures for mortgagors and servicers in relation to forbearances of residential mortgage payments affected by the COVID-19 pandemic. More ›

Rhode Island Supreme Court Demands Strict Compliance with Fannie Mae/Freddie Mac "Paragraph 22" in Foreclosures

In a case of first impression, the Rhode Island Supreme Court concluded in Woel v. Christiana Trust that mortgage default notices sent to borrowers must strictly comply with the notice requirements included in a mortgage. The Court held that a lender's notice of default does not strictly comply with the terms of the standard Fannie Mae/Freddie Mac mortgage Paragraph 22, if the notice fails to inform the borrower of the right to reinstate after acceleration. More ›

Governor Cuomo Extends New York Mortgage Foreclosure Moratorium, But With Exceptions…

On May 7, 2020, New York Governor Andrew Cuomo issued Executive Order 202.28, which provides further temporary relief measures for tenants facing an eviction. The order also directly impacts mortgage loan holders, servicers, and borrowers, as it bars the "initiation" of certain residential and commercial mortgage foreclosures for another 60 days from June 20, 2020. More ›