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Oct 3, 2012

Real Property – Tort/Negligence – Constructive Trust – Corporate — Mortgages – Foreclosure – Lis Pendens

Carolina Park Associates, LLC v. Marino The same people were involved in two companies: (1) CDM of Charleston, LLC (CDM), which held a second mortgage on the Carolina Park real estate development and (2) MDC of Charleston, LLC (MDC), which was a member of the limited liability company that owned Carolina Park (Carolina Park Associates, LLC).

Aug 22, 2012

Banks & Banking – Mortgages – Real Property – Pay-Off – Failure to Cancel — Attorneys

Regions Bank v. Strawn The defendant-attorney presented evidence that, as part of a real property closing, his employee hand-delivered to the plaintiff-bank a pay-off check and a letter requesting that the bank’s mortgage on the property be marked satisfied.

Jul 26, 2012

Real Property – Mortgages – Foreclosure – Junior Lienholder – Assignment of Rights – Attorney-Free Closing – Pre-Matrix

BAC Home Loan Servicing, L.P. v. Kinder A junior lienholder assigned its rights to plaintiff after the senior lienholder had foreclosed on defendant’s property. Although the junior lien had already been extinguished, the assignment effectively transferred to plaintiff the junior lienholder’s right to claim surplus funds generated by the foreclosure sale.

Jun 13, 2012

Civil Practice – Jury Trial Demand – Stricken – Counterclaims – Real Property – Mortgages – Unconscionability – Attorney Preference

Wells Fargo Bank, NA v. Smith In this mortgage foreclosure action, if the defendant-homeowner prevails on his common-law unconscionability counterclaim, it will affect the plaintiff-bank’s right to foreclose; therefore, the counterclaim was compulsory. However, the counterclaim is equitable in nature, so the master-in-equity correctly struck the homeowner’s jury trial demand.

Apr 20, 2012

Banks & Banking – Real Property – Mortgages – Pay-Off – Failure to Mark Satisfied – Tort/Negligence

Bryan v. Community Resource Mortgage, Inc. There is no question that the plaintiff-debtor paid his debt and that the defendant-bank failed to mark his mortgage satisfied within three months (it waited nine years). Where plaintiff has identified a specific bank employee, who he contends specifically represented that the July 31, 2002 mortgage would be satisfied by a subsequent loan the ban[...]

Mar 1, 2012

Real Property – Mortgages – Priority – Leasehold – Notice – Appraisal Report

RL REGI Financial, LLC v. DDB of Spartanburg, LLC Since the appraisal report commissioned by the plaintiff-lender clearly noted defendant MCC Outdoor’s leasehold interest in the property at issue, the lender had actual or constructive notice of MCC’s prior interest in the property; therefore, the lender’s mortgage is subordinate to the unrecorded leasehold.

Feb 16, 2012

Bankruptcy – Real Property – Mortgages – Improperly Recorded – Lien Avoided

SunTrust Bank N.A. v. Macky A bank cannot collect on a loan secured by a deed of trust on two contiguous parcels in Orange County, N.C., because the deed of trust on one of the tracts was not properly recorded under state law, and the 4th Circuit upholds the bankruptcy court order to avoid the bank’s lien on that tract.

Dec 21, 2011

Real Property – Mortgages – Banks & Banking — Consumer Protection – TILA – Wrong Form

Watkins v. SunTrust Mtge. Inc. A lender did not violate the Truth in Lending Act when it used a form similar to “Model Form H-8” instead of “Model Form H-9” to notify a borrower refinancing a home mortgage of his right to rescind the transaction, and the 4th Circuit upholds the district court’s dismissal of the defaulting borrower’s TILA claim.

Dec 6, 2011

Bankruptcy – Automatic Stay – Motion for Relief – Civil Practice — Party in Interest – Real Property – Mortgages – Assignment – Res Judicata

In re Jeter The debtors had ample opportunity to assert any issues regarding the secured creditor’s status or the authenticity of any transfers that led to The CIT Group’s claimed secured creditor position at the time of the confirmation of the debtors’ Chapter 13 plan. The debtors elected not to pursue any such issues; consequently, the debtors cannot claim well after confirmation [...]

Sep 6, 2011

Domestic Relations – Equitable Distribution – Real Property – Pre-Marital Purchase – Mortgages – Economic Misconduct Finding

Nestberg v. Nestberg Even though the defendant-husband bought 14 acres of land a month before the parties’ wedding, since the parties intended to and did live on the property during their marriage, and since the plaintiff-wife’s salary paid the mortgages on the property - especially during the five years after the husband lost his job - the property was transmuted into marital propert[...]

Aug 26, 2011

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

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 rulin[...]

Jul 12, 2011

Real Property – Mortgages — Contract – Timber Sale – Priority – UCC – First Impression

Epstein v. Coastal Timber Co. The Uniform Commercial Code categorizes timber as personal property when it is the subject of a sale apart from the land. This does not change longstanding real property law. If a mortgage was filed before the recording of a timber sale contract, the mortgage has priority over the timber contract, and the mortgage need not mention timber rights to have such p[...]

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