Tag Archives: Mortgage Law

Donald Maurice to Discuss Foreclosure Litigation at ACI Forum

Sept. 9, 2015 — Maurice Wutscher attorney Donald Maurice will participate in a panel survey exploring the latest developments in foreclosure litigation in hotbed jurisdictions at ACI’s 18th National Forum on Residential Mortgage Litigation and Regulatory Enforcement in Dallas on Sept. 17.

The panel will examine homeowners bills of rights, statute of limitations issues, HOA liens, state UDAAP claims, and other trends in foreclosure litigation.

The residential mortgage industry’s leading in-house and outside counsel will attend the meeting to gain insight into strategies, government enforcement and regulatory priorities, and judicial perspectives from top federal and state judges.

For more information and to register, click here.

Webinar to Discuss California’s One Form of Action Rule

Aug. 21, 2015 — Maurice Wutscher attorneys will present a webinar on Aug. 25 discussing California’s one form of action rule.

The Supreme Court of California is currently reviewing two significant appellate court rulings involving the “one form of action” rule: Coker v. JP Morgan Chase Bank, N.A., 218 Cal. App. 4th 1 (4th Dist. 2013) and First California Bank v. McDonald, 231 Cal. App. 4th 550 (5th Dist. 2014).

In Coker, to resolve a nonjudicial foreclosure, the mortgagee of a purchase-money loan conditioned a short sale on the borrower’s agreement to remain responsible for any deficiency. A copy of the Appellate Court’s ruling in Coker is available here: Link to Opinion.

McDonald involves a judicial foreclosure on a mortgage loan made to a husband and wife, where the husband was deceased, and the mortgagee did not obtain the consent of the deceased husband’s estate prior to liquidating part of the collateral owned exclusively by the wife. A copy of the Appellate Court’s ruling in McDonald is available here: Link to Opinion.

The issues presented for review before the Supreme Court of California in these two cases are:

1. Does a borrower waive the protection of the “security first” rule under California Code of Civil Procedure section 726 by agreeing to a short sale?

2. Can a servicer condition a short sale on waiver by the borrower of the anti-deficiency protections under California Code of Civil Procedure section 580b?

3. Does a servicer violate California Code of Civil Procedure section 726 when it consents to a borrower’s voluntary ″short sale″ of her own property without obtaining the consent of a co-borrower who has no ownership interest in that property?

4. When there is a violation of Section 726, should alternate remedies, short of the servicer losing its right to pursue a deficiency judgment, be available to the courts where the servicer acted in good faith and there has been no prejudice to the co-borrower?

5. Does Pacific Valley Bank v. Schwenke (1987) 189 Cal. App. 3d 134, remain good law after the California Supreme Court’s decision in Security Pacific National Bank v. Wozab (1990) 51 Cal. 3d 991, which bars a loss-of-debt penalty in the absence of evidence of lender bad faith?

For more information and to register, click here.

Webinar to Explore FDCPA and Estimates of Mortgage Lenders’ Costs

June 24, 2015 — Maurice Wutscher will give a webinar on July 9, exploring the FDCPA and estimates of mortgage lenders’ costs.

Providing statements of the amount due, or of the amount required to cure a default – such as in Notices of Intention to Foreclose, periodic statements, and the like — has become risky for mortgage servicers under a recent ruling from the U.S. Court of Appeals for the Third Circuit.

The ruling, Kaymark v. Bank of America, involved a foreclosure complaint, which included projected fees and costs that had not yet been incurred at the time the complaint was filed. Ultimately the costs were incurred, but the court found that the foreclosure complaint’s inclusion of the projected fees and costs in the amounts due stated a claim for violation of the federal Fair Debt Collection Practices Act (FDCPA).

Kaymark likely impacts what a mortgage servicer can include in periodic statements, Notices of Intent to Foreclose, and other disclosures of amounts due or amounts required to cure a default, at least in the Third Circuit (Delaware, New Jersey, Pennsylvania and the Virgin Islands).

For more information and to register, click here.