In BRFHH Shreveport, LLC v. Willis-Knighton Medical Center, the Fifth Circuit affirmed the dismissal of antitrust claims when: As to the plaintiff’s theory of a “threat-and-accession” agreement in violation of section 1 of the Sherman Act, “[t]he problem is that … Continue reading
Wease established ambiguity in two aspects of a deed of trust. With respect to when a servicer could pay the borrower’s property taxes by the servicer, the key provision used the fact-specific phrase “reasonable or appropriate”; other provisions both suggested that the power was … Continue reading
After removing a dispute about a home equity loan foreclosure, Deutsche Bank argued that a state court order that had vacated an earlier order allowing the foreclosure was invalid. The homeowner argued that review was precluded by the Rooker-Feldman doctrine; … Continue reading
Foster sued about a foreclosure; the state court granted a TRO (so no foreclosure occurred); and the mortgage servicer defendants removed and obtained summary judgment. Foster challenged the denial of her motion to remand, arguing that she did not improperly … Continue reading
Jeff Heck sought to buy property at a foreclosure sale for $63,000; given 20 minutes to obtain a cashier’s check for that amount, he did not return in time and the property was sold to another buyer. The underlying Texas … Continue reading
U.S. Bank sent notices of acceleration, and began foreclosure proceedings, several times before suing for judicial foreclosure. The borrowers contended that suit was time-barred. The Fifth Circuit disagreed, finding that the bank’s second notice “unequivocally manifested an intent to abandon … Continue reading
In one of the many unpublished cases dismissing “split-the-note” cases after Martins v. BAC Home Loans Servicing, LP, 722 F.3d 249 (5th Cir. 2013), the Fifth Circuit addressed a foreclosure sale that had taken place while a TRO purported to stop … Continue reading
The borrower in Martin-Janson v. JP Morgan Chase alleged waiver and promissory estoppel claims arising from a foreclosure — claims which the Fifth Circuit has not encouraged in 2013 opinions. Here, however, after reviewing the plaintiff’s five allegations about the specific statements made, … Continue reading
2013 has seen a steady stream of unpublished opinions favoring mortgage servicers, followed by a published opinion affirming a MERS assignment, and now a second published opinion rejecting arguments about the alleged “robosigning” of assignment documents. In Reinagel v. Deutsche Bank, a suit … Continue reading
Continuing a steady stream of rulings in favor of lenders and mortgage servicers in foreclosure cases, the Fifth Circuit affirmed summary judgment for the defendant in Watson v. Citimortgage, No. 12-41009 (June 10, 2013, unpublished). Rejecting waiver and estoppel arguments about the … Continue reading
In the fourth of a series of unrelated cases about mortgages and foreclosures in 2013, the Fifth Circuit affirmed the dismissal of claims about the foreclosure on a home used as collateral for a business loan. Water Dynamics v. HSBC Bank, … Continue reading
In the third mortgage servicing opinion of 2013, the Fifth Circuit affirmed the dismissal of contract, promissory estoppel, and tort claims under Texas law arising from the attempted negotiation of a loan modification during a foreclosure situation. Milton v. U.S. … Continue reading
Continuing a theme begun a few days ago in Gordon v. JP Morgan Chase, the Fifth Circuit affirmed summary judgment for a servicer on a negligent misrepresentation claim under Mississippi law based on statements during loan modification discussions. Pennell v. Wells Fargo … Continue reading
The plaintiff in Gordon v. JP Morgan Chase alleged that a home foreclosure was prevented by the lender′s promises of a permanent loan modification under the Home Affordable Mortgage Program (“HAMP”). No. 12-20323 (Jan. 3, 2013, unpublished). The Fifth Circuit agreed … Continue reading
After a 3-day hearing, a bankruptcy court certified a class for injunctive relief about foreclosure-related fees during the debtors’ bankruptcy proceedings. Rodriguez v. Countrywide Home Loans, No. 11-40056 (Sept. 14, 2012). The Fifth Circuit affirmed, finding that Countrywide’s acts were “generally applicable” to the … Continue reading
A wrongful-foreclosure case reminds of a basic Twombly principle: “Green’s breach-of contract claim in her complaint alleged that Defendants violated conditions in the deed of trust, but she never explained which part of the deed was violated. It was only in … Continue reading
The Fifth Circuit concluded that a magistrate judge lacked jurisdiction to enter final judgment. The parties had conducted an entire wrongful-foreclosure case before a magistrate judge–but, early in the case, on the standard form, PNC expressly declined to allow trial … Continue reading
Casalicchio received a pre-foreclosure notice that “contained a deadline thirty days from the day the notice was printed, even though the deed of trust called for a deadline thirty days from the day the letter was mailed.” (emphasis in original). … Continue reading
“The complaint alleges that during the April and October 2016 phone calls, the defendants negligently misrepresented to Mr. Dick that ‘reinstatement was not an option’ and that ‘there was nothing [the] Plaintiff could do to stop a foreclosure.’ The plaintiff’s … Continue reading
In a residential foreclosure case, the borrower alleged that the bank/lender was vicariously liable for alleged RESPA violations by the servicer. Noting that it was the first federal circuit court to address the point, the Fifth Circuit found that the lender could not … Continue reading
In addition to inspiring 600Camp’s most painful pun of 2018, Ditech Financial LLC v. Naumann provides a thorough summary of the requirement – unique to default judgments, among all judgments available under the Federal Rules – that the relief awarded “must not … Continue reading
Donald Rumsfeld unforgettably spoke about known unknowns. The Fifth Circuit engaged that general concept in Bartolowits v. Wells Fargo, in which the plaintiff claimed that a lender “misrepresented the amount [plaintiff] owed and its security interest in his property to a state … Continue reading
A recent opinion in a real estate foreclosure dispute summarizes the current state of the law on some key principles: When a national bank is sued as trustee in such a case, its citizenship contrrols the analysis of diversity, not … Continue reading
As a counterpoint to the recent case of Boerschig v. Trans-Pecos Pipeline, which rejected a mootness challenge in an injunction case about a condemnation (reasoning that the court could still “order that Trans-Pecos return Boerschig’s land to its precondemnation state.”), there is Dick … Continue reading
Among other holdings in a hard-fought wrongful foreclosure action, the Fifth Circuit made two observations about the FDCPA in Mahmoud v. DeMoss Owners Association. First, while language on the first page of a letter suggested that action was required in less … Continue reading
In a thorough review of several basic issues that arise in litigation about residential foreclosures, the Fifth Circuit addressed whether the citizenship of a mortgage securitization trust is determined by the citizenship of the trustee, or the citizenship of all … Continue reading
The bankruptcy court ruled that a claim against the debtor, arising out of a scheme involving foreclosure proceedings, was nondischargeable. The Fifth Circuit affirmed, holding, inter alia, that the debt could be found nondischargeable because of the debtor’s participation in … Continue reading
Johnson-Williams sued MERS about a foreclosure. She lost a Rule 12(b)(6) motion filed by MERS, then her own motion for leave to amend, and finally a motion for reconsideration. She appealed, and the Fifth Circuit observed the limited scope of … Continue reading
In a dispute about a home loan, the district court wrote an opinion found for the defendant mortgage servicer in all respects, including its counterclaim for judicial foreclosure. The final judgment, unfortunately, did not address that claim or otherwise contain “catch-all” language. … Continue reading
Continuing a theme in cases involving attorney liability (most notably the recent Stanford-related opinion in Troice v. Proskauer Rose, 816 F.3d 341 (5th Cir. 2015)), the Fifth Circuit affirmed summary judgment for the law firm involved in a disputed foreclosure: “Under … Continue reading
Among other points raised in a challenge to a foreclosure on a Texas home equity loan, the trial court observed: “the curious backdating of the [assignment] confirms the suspicion that this document was generated to obscure the chain of title … Continue reading
Unsuccessfully, Plaintiff sued about the foreclosure on his home in state court in 2008, and again in federal court in 2012. The Fifth Circuit said he was “WARNED that further frivolous litigation will result in substantial sanctions under Rule 38 … Continue reading
In Villarreal v. Wells Fargo Bank, the Fifth Circuit published a straightforward Rule 12 affirmance in a mortgage servicing case, likely to make abundantly clear what law governs several recurring issues in such cases. Those principles include: (1) a plaintiff’s failure … Continue reading
In the fourth opinion in recent months about whether a mortgage servicer waived acceleration of the loan by inconsistent conduct, the Fifth Circuit again rejected such an argument in Martin v. Fannie Mae: “Wells Fargo accepted payments only after [the … Continue reading
A plaintiff class alleged that Chesapeake’s oil and gas production in the Fort Worth area trespassed on their property interests. The defendants removed under CAFA, the district court remanded under that statute’s “local controversy exception,” and the Fifth Circuit reversed. … Continue reading
In a wrongful foreclosure case, the borrower alleged that PNC Bank had not proved its ownership of the note. Then, “an attorney representing [defendants] showed an attorney employed by [Barrett-Bowie’s law firm] the original blue ink note signed by Barrett-Bowie. The … Continue reading
During the 1980s, the Jefferson Group failed to pay both a large loan and its property taxes. The lender failed and the RTC/FDIC acquired the deed of trust for the loan, which it later assigned to another entity. The local school … Continue reading
Disputes between borrowers and mortgage servicers are common; jury trials in those disputes are rare. But rare events do occur, and in McCaig v. Wells Fargo Bank, 788 F.3d 463 (5th Cir. 2015), a servicer lost a judgment for roughly $400,000 … Continue reading
Defendants claimed that a foreclosure sale produced an unfair windfall for Fannie Mae on a substantial commercial property. They alleged that Fannie Mae had a practice of making unfairly low bids on Gulf Coast properties. The Fifth Circuit observed: “As … Continue reading
After initially holding that the borrowers’ complaint survived a Twombly challenge as to whether the “grossly inadequate sales price” element of a wrongful foreclosure claim had been properly pleaded, the Fifth Circuit reversed field and issued a revised opinion that affirms dismissal: “We … Continue reading
The defendants in a wrongful foreclosure case removed and the district court dismissed the borrower’s claims on the pleadings. The Fifth Circuit reversed for jurisdictional reasons. Smith v. Bank of America, No. 14-50256 (revised March 20, 2015, unpublished). As to … Continue reading
While affirming the dismissal of the borrowers’ other claims related to a foreclosure, the Fifth Circuit reversed as to a claim for wrongful foreclosure, reasoning: “Under Texas law, a claim for wrongful foreclosure generally requires: (1) ‘a defect in the … Continue reading
As chronicled in the sister blog 600Commerce (following business cases in the Dallas Court of Appeals), the issue of whether a guarantor can waive the “fair market value” offset right provided by the Texas Property Code — a problem that arises … Continue reading
The borrowers’ complaint in a wrongful foreclosure case sought: “‘an order canceling the Mortgage’ on property that is worth more than $200,000 while also stipulating that they will not recover more than $75,000.” Accordingly: “Given our established rule that the amount in controversy … Continue reading
Vaillancourt sued a mortgage servicer, the substitute trustee for a foreclosure, and her husband. The defendants removed, claiming fraudulent joinder of the in-state defendants, and the district court rejected that argument and remanded. In so doing, it declined to exercise … Continue reading
Earlier this year, the Texas Supreme Court answered certified questions from the Fifth Circuit about the treatment of home equity loans under the Texas Constitution; that opinion summarizes: “To avoid foreclosure, homeowners and lenders often try to restructure underwater home … Continue reading
Chavez v. Wells Fargo Bank, N.A., No. 13-11325 (Aug. 13, 2014, unpublished) reminds of 2 black-letter principles in mortgage servicing litigation: 1. A claim under section 392.304(a)(19) of the Texas Finance Code requires proof of a misleading affirmative statement. “Chavez does not … Continue reading
The Baptists bought a home insurance policy from Nationwide in 2006. In 2008, they lost their home to foreclosure. They remained in the house, however, until December 2011 — before a court-ordered eviction date of January 13, 2012, but after … Continue reading
“It would . . . be an unreasonable interpretation of the policies to say that they provide for valuation as of the date of . . . discovery since no loss occurs at that point. The most appropriate date to … Continue reading
In the recent case of French v. EMC Mortgage Corp., No. 13-50417 (April 29, 2014, unpublished), these allegations were deemed to “reference[] the FDCPA by way of asserting a cause of action under this federal statute,” and thus allowing removal: “V. … Continue reading
The plaintiffs in Singha v. BAC Home Loans Servicing LP alleged a number of foreclosure-related claims, most of which were resolved by recent Fifth Circuit precedent. Among them was a claim for unfair debt collection based on the common situation of failed … Continue reading
Alphonse lost his home to foreclosure. He then sued in federal court, alleging unfair trade practices. Alphonse v. Arch Bay Holdings LLC, No. 13-30154 (Dec. 11, 2013, unpublished). The district court dismissed based on the Rooker/Feldman doctrine, but by the time … Continue reading
A zealous borrower filed successive lawsuits against U.S. Bank, its attorneys, and MERS arising from a foreclosure. Maxwell v. U.S. Bank, N.A.,13-20113 (Oct. 30, 2013, unpublished). While MERS was not a party to the first two cases, it asserted res … Continue reading
Washington Mutual (“WaMu”) failed; Chase took over its mortgage operations from the FDIC. In the meantime, borrower Dixon (after receiving notice from Chase that it was replacing WaMu as mortgagee and servicer) obtained a default judgment in state court against … Continue reading
The unpublished opinion of Wiley v. Deutsche Bank National Trust Co. affirms the Rule 12 dismissal of borrwers’ wrongful foreclosure claims, summarizing the 2013 cases from the Fifth Circuit about the “split-the-note” argument against the validity of a MERS assignment. No. 12-51039 … Continue reading
Verdin v. Fannie Mae rejected several claims against a mortgage servicer. No. 12-40895 (August 15, 2013, unpublished). As to a negligent misrepresentation claim, the Fifth Circuit held: “[the servicer’s] only allegedly false representation—that [the borrower] should submit a request for postponement … Continue reading
For the third time in 2013, the Fifth Circuit has reversed, at least in part, the dismissal of foreclosure-related claims under Rule 12 – this time in a published opinion. Miller v. BAC Home Loans Servicing LP, No. 12-41273 (August 13, 2013). … Continue reading
A borrower alleged that the servicer mishandled an insurance issue, setting in motion events that led to a wrongful foreclosure. Gardocki v. JP Morgan Chase, No. 12-20733 (Aug. 8, 2013, unpublished). Citing Twombly and Iqbal, and criticizing the lack of analysis … Continue reading
The plaintiff in Morlock LLC v. Bank of New York sued to quiet title, claiming that it had not received notice of a foreclosure sale despite having an interest in the property. No.12-20832 (August 5, 2013, unpublished). The Fifth Circuit affirmed judgment … Continue reading
In its first published opinion of 2013 about the merits of a wrongful foreclosure claim, the Fifth Circuit rejected the plaintiff’s “show-me-the-note” and “split-the-note” arguments. Martins v. BAC Home Loans Servicing LP, 722 F.3d 249 (5th Cir. 2013). In footnote … Continue reading
In Morlock LLC v. JP Morgan Chase, the plaintiff disputed Chase’s ability to foreclose. No. 12-20623 (June 4, 2013, unpublished). Its first claim was a suit to quiet title, as to which the Fifth Circuit found that the plaintiff’s challenge … Continue reading
After sidestepping an issue about the Rooker-Feldman doctrine in the context of mortgage servicing earlier this year, the Fifth Circuit revisited the topic in Truong v. Bank of America, 717 F.3d 377 (2013). After a review of the doctrine (“‘Reduced to its … Continue reading
Continuing a series of opinions about mortgage servicing, the Fifth Circuit addressed an “incoherent and rambling” challenge to an assignment through the Mortgage Electronic Registration System (MERS) in Martins v. BAC Home Loans Servicing, No. 12-20559 (April 26, 2013, unpublished). Notwithstanding its criticism … Continue reading
A a series of mid-2012 opinions the Fifth Circuit engaged Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). In the first, after a 3-day hearing, a bankruptcy court certified a class for injunctive relief about foreclosure-related fees during the debtors’ … Continue reading
