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Tag Archives: Foreclosure

Hitting close to home (access required)

Meet Walter Lamkin. Lamkin is a real estate attorney with Spencer Fane Britt & Browne, one of the largest firms in Missouri. The former managing member of title and money disbursing companies, he sits on a zoning board in his upscale St. Louis suburb of Frontenac. All in all, Lamkin is the last person you’d expect to have problems renegotiating his home loan. But he did. And now Lamkin shares a situation with hundreds of thousands of Americans who don’t have his resources and knowledge: His home teeters on the precipice of foreclosure.

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Constitutional – Jury Trial – Waiver – Real Property – Foreclosure — Mortgages — Promissory Note – Counterclaims – Tort/Negligence (access required)

Wachovia Bank, N.A. v. Blackburn Although the prominent jury trial waiver in defendants’ promissory notes is valid and binding, it does not apply to defendants’ counterclaims, which are based on their allegations that the bank partnered with a developer and made misrepresentations about the properties being sold and the construction of amenities. We affirm the trial court’s ruling that defendants waived their right to a jury trial in matters related to the promissory notes and other loan documents. We reverse the trial court’s ruling that defendants’ counterclaims are encompassed by the waiver.

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Real Property – Equitable Subrogation – Bankruptcy – Liens – Foreclosure – Unauthorized Practice of Law (access required)

Matrix Financial Services Corp. v. Frazer 1. Equitable subrogation is not a remedy available to a lender that refinances the original debt owed to it. 2. A lender may not enjoy the benefit of equitable remedies when that lender failed to have attorney supervision during the loan process as required by state law.

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Real Property – Mortgages – Foreclosure – Substitute Trustee – Securitized Loan (access required)

Horvath v. Bank of New York N.A. A Virginia mortgage borrower cannot challenge a note holder's foreclosure, by substitute trustee, on the borrower's Woodbridge property on a theory that only the original lender has authority to foreclose; the Virginia legislature has given parties free rein to assign and transfer notes and the deeds of trust accompanying them.

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Real Property – Mortgages – Foreclosure – Tenants in Common – Fraud – Forgery – Equity (access required)

Bank of New York v. Salone Defendant Randolph was a completely innocent party who found herself ensnarled in a mortgage foreclosure action through no fault of her own; instead, it was due to a forgery committed (apparently at the behest of her tenant-in-common) as a result of the plaintiff-bank's failure to use due diligence in ensuring that the party signing the mortgage documents was, in fact, Randolph. Furthermore, it is the unappealed law of the case that Randolph would be harmed more if the bank were allowed to foreclose than if her brother remained her tenant-in-common. We affirm the trial court's order granting Randolph's motion for voluntary nonsuit.

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Resurrected equity line comes back to haunt lender (access required)

Columbia attorney Kevin Hall said a BB&T's home-equity line of credit was like Jason from "Friday the 13th" in his hockey mask - "You think he's dead, but he comes back to life." Countrywide Home Loans, Inc., thought Sharon and James Umbarger's equity line had been extinguished when it was paid off in 2002 when the Umbargers refinanced their mortgage. But it wasn't. According to the S.C. Supreme Court's unpublished opinion in Countrywide Home Loans, Inc. v. Umbarger (Lawyers Weekly No. 10-007-0011, 4 pp.), the equity line required a written request in order to be closed, but no written request was tendered.

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Real Property – Res Judicata – Mortgage Lien Priority – Default Judgment – Foreclosure – Rule 13(a) – Equity Line (access required)

Countrywide Home Loans, Inc. v. Umbarger. (Lawyers Weekly No. 010-007-11, 4 pp.) (Per curiam) Appealed from Lexington County. (Clyde N. Davis, Special Referee). S.C. S. Ct. Unpub. Click here for the full text of the opinion. Holding: Although the holder ...

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Coach’s Corner: Politicians, lawyers and ‘protecting the public’

Lawyers nationwide increasingly face state and federal government actions to implement a whole new regulatory structure aimed at what is in fact a growing problem: companies that charge consumers an up-front fee to modify the terms of a mortgage or deed of trust they can no longer afford, then either fail to deliver results or actually abscond with the fee itself. In an early effort, New York banned upfront mortgage-modification fees but explicitly exempted retainers to lawyers. Later, reports that mortgage companies were using relationships with lawyers to get around the fee ban led to passage of another law, this time banning retainer and escrow collections by lawyers unless the fee is collected as part of ongoing, regular legal counsel.

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