New York Supreme Court Holds Mortgagee Does Not Need to Send 90-Day Foreclosure Notice if Mortgagee Is Not a “Lender, an Assignee, or a Mortgage Loan Servicer”

The Supreme Court of New York, Suffolk County, recently granted a foreclosing plaintiff summary judgment and held that plaintiff did not need to send a 90-day notice pursuant to RPAPL 1304 because plaintiff was not a lender, assignee, or mortgage loan servicer.  See NIC Holding Corp. v. Eisenegger, 59 Misc. 3d 1221(A) (N.Y. Sup. Ct. 2018). 

Third Circuit Holds One-Year FDCPA Statute of Limitations Begins to Run Upon Violation, Not When Consumer Discovers or Should Have Discovered It

In a decision contrary to the holdings of two other circuit courts, the United States Court of Appeals for the Third Circuit recently affirmed a district court’s decision and held that a plaintiff’s claim under the Fair Debt Collection Practices Act (“FDCPA”) was time barred because he brought his action more than one year after the violation occurred, despite the fact that he brought it within one year of discovering it.  See Rotkiske v. Klemm, 2018 WL 2209120 (3d Cir. May 15, 2018). 

New Jersey’s Department of Banking and Insurance Adopts New Mortgage Processing Requirements

Riker Danzig Partner Michael O’Donnell and associates Michael Crowley and Clarissa Gomez co-authored an article in the Spring 2018 issue of New Jersey Banker Magazine entitled “New Jersey’s Department of Banking and Insurance Adopts New Mortgage Processing Requirements.”  The article discusses two changes regarding residential mortgages and how these changes will affect residential lenders.   

Please note that the disclosure of mortgage loan application fees issue is still evolving.  After publication of this article, the Department of Banking and Insurance determined that the disclosures will not currently be mandatory and financial institutions are currently free to decide on their own whether to incorporate such disclosures in their forms.   

Click here to read the entire article.

Utah Appellate Court Holds Use Restrictions Did Not Render Title Unmarketable, but Reduction in Lot Size Would Be Covered Under Title Insurance Policy

A Utah appellate court recently held that use restrictions on an insured property did not render it unmarketable under the title insurance policy, but that damages caused because one of the insured lots overlapped with neighboring parcel would be covered.  See Lauritzen v. First Am. Title Ins. Co., 2018 WL 1663285 (Utah Ct. App. Apr. 5, 2018).

Eighth Circuit Holds Borrower Did Not Suffer Damages Because of Servicer’s RESPA Violation

The United States Court of Appeals for the Eighth Circuit recently reversed a district court and held that a borrower failed to prove he suffered damages caused by the servicer’s violation of the Real Estate Settlement Procedures Act (“RESPA”) and, as such, failed to establish an essential element of the claim.  See Wirtz v. Specialized Loan Servicing, LLC, 886 F.3d 713 (8th Cir. 2018). 

Florida Federal Court Dismisses RESPA and FDCPA Claims Due to Borrower’s Failure to Provide Servicer Notice and an Opportunity to Cure

The United States District Court for the Southern District of Florida dismissed a borrower’s claims under the Real Estate Settlement Procedures Act (“RESPA”) and the Fair Debt Collection Practices Act (the “FDCPA”) because the borrower failed to give the loan servicer an opportunity to cure its alleged violations as required under the mortgage.  See Kurzban v. Specialized Loan Servicing, LLC, No. 17-CV-20713, 2018 WL 1570370(S.D. Fla. Mar. 30, 2018).

Washington D.C. Appellate Court Holds Foreclosing Condominium Association Might Not Have Super-Priority if It Forecloses on More Than Six Months of Dues

The District of Columbia Court of Appeals recently reversed a lower court’s decision granting summary judgment to a condominium association and held that the association’s foreclosure of a “super-priority” condominium lien may not have extinguished an otherwise first-priority mortgage on the property.  See U.S. Bank Nat’l Ass’n v. Green Parks, LLC, No. 16-cv-842 (D.C. Mar. 13, 2018). 

California Appellate Court Holds Mortgage Recorded Simultaneously with HELOC Had Priority and Was Not Entitled to Surplus Funds

The California Court of Appeals recently held that a mortgage (the “Mortgage”) recorded simultaneously with a home equity line of credit (the “HELOC”) had priority and was not entitled to any surplus proceedings from the foreclosure of the HELOC, despite the fact that the HELOC’s instrument number was prior to that of the Mortgage.  See MTC Fin., Inc. v. Nationstar Mortg., 19 Cal. App. 5th 811 (Ct. App. 2018).