Branch Banking and Trust Co. V. Peacock Farms, Inc.: What This Means for the Trial Attorney

In an action against several defendants, the Court just granted opposing counsel’s motion for summary judgment or motion to dismiss as to one but not all of the defendants.  There are a number of things going through your mind.  How am I going to deliver this news to the client? What is my litigation strategy moving forward? How does this affect the overall likelihood of success?  Do I appeal the decision?  

Consequences for Failing to Comply With Orders Requiring Loan Modification

Lenders and servicers fortunate not to qualify as “debt collectors” under the FDCPA should nevertheless be mindful that the CFPB has an alternative weapon in its considerable arsenal to tag them with liability for behavior that the Bureau deems improper.

Fannie Mae Will Reimburse for Clear Boarding of Abandoned Properties

Lender May Rescind Certificate of Satisfaction for Any Reason

Borrower Who Surrenders House in Bankruptcy May Not Oppose Foreclosure Proceeding

Servicers realized a significant victory in the recent Eleventh Circuit decision in In re Failla v. Citibank, N.A. No.15-15626, 2016 WL 5750666 (11th Cir, October 4, 2016), when the Court held that a debtor who surrenders his house in bankruptcy may not oppose a foreclosure action in state court.  The Eleventh Circuit has jurisdiction for Alabama, Florida, and Georgia.

Lender’s Offer to Consider Borrower for Foreclosure Avoidance Options Does Not Entitle Borrower to Loan Modification

That Upset Bid Process is Such a Hassle . . . How Can I Get Around It?

I had an interesting question about my last blog regarding the upset bid process, which requires a 10-day period following each new bid during which the bid can be raised.  A reader asked if there was a way to get around it.  In other words, can you ever be guaranteed to be the successful purchaser on the day of the foreclosure sale?  In North Carolina, unlike many other jurisdictions, the answer is No.  At least, not legally.  

Debt Collectors Misstate and Overshadow the Debt Validation Notice at Their Peril

North Carolina is a “pure race” jurisdiction, meaning that the person first in time to record a deed to, or a lien against, a parcel of real property generally has priority against all subsequent grantees or lien holders.  Thus, if a lender records its deed of trust immediately upon settlement of a loan transaction, the deed of trust will be superior to any other lien subsequently recorded against the same parcel of real property.  N.C.G.S. § 47-18(a).

Fifth Circuit Adds to the Circuit Split: Offer to Settle Debt Without Disclosing It is Time-Barred Violates FDCPA

The Low Down on The Upsets

The North Carolina Court of Appeals has raised another roadblock for lenders seeking to recover a debt where the original note has been lost.  In Emerald Portfolio, LLC v. Outer Banks/Kinnakeet Associates, LLC et al., 2016 WL 4598561 (N.C.App. 6 September 2016), the Court held that a party who never possessed a note cannot avail itself of North Carolina’s version of the UCC to enforce the note.

The North Carolina General Assembly ended its 2016 legislative session in July and placed some new laws on the statute books that of which servicers and companies that manage REO assets should be aware.

Foreclosure Squatters

Must a Transferee Debt Collector Send a New Debt Validation Notice to the Consumer in NC or SC?