New York DFS Fines Servicer $100,000 For Failing to Register and Maintain Abandoned Properties

New York’s Department of Financial Services (the “DFS”) recently entered a consent order fining a mortgage loan servicer (“SN”) $100,000 for failing to register and maintain two abandoned properties.  See In re: SN Servicing Corporation, (Jan. 14, 2019).  Under the Abandoned Property Relief Act (the “Act”), lenders and servicers with first mortgage liens on vacant or abandoned residential properties are required to register, secure and maintain these properties.  See RPAPL §§ 1308, 1310.  Failure to comply could result in fines of up to $500 per day per property. 

New York Appellate Court Dismisses Claim Against Bona Fide Purchasers

New York’s Second Department Appellate Division recently held that the purchasers of a property were bona fide purchasers for value despite the filing of a notice of pendency on the property because of the death of the prior owner.  See Caldara v. Monti, 165 A.D.3d 1219 (2d Dept. 2018).  Plaintiff brought an action against the decedent in 2015 in which he sought specific performance of a real estate contract.

Eleventh Circuit Holds Florida Statute Cured Deficient Deed and Blocked IRS’s Attempt to Foreclose on Property

The United States Court of Appeals for the Eleventh Circuit recently reversed a lower court and held that a Florida statute cured an improperly-witnessed deed and prevented the IRS from foreclosing on the property.  See Saccullo v. United States of Am., 2019 WL 168217 (11th Cir. Jan. 11, 2019).  In 1998, the owner of a property executed a deed conveying the property to a trust for the benefit of his son. 

Fifth Circuit Affirms Dismissal of RESPA Claims, Holds Lender Not Vicariously Liable for Servicer’s Actions

The United States Court of Appeals for the Fifth Circuit recently held that a borrower’s claim against a lender under the Real Estate Settlement Procedures Act (“RESPA”) was properly dismissed because the lender could not be held vicariously liable for the servicer’s alleged violation.  See Christiana Tr. v. Riddle, 2018 WL 6715882 (5th Cir. Dec. 21, 2018).  In the case, the borrower defaulted on her mortgage and the lender brought a foreclosure action.  The borrower counterclaimed and alleged a violation of RESPA, among other things.  

New Jersey Appellate Court Holds Evidentiary Hearing Necessary to Determine Whether Statute of Limitations Should Be Tolled in Action Regarding Title to Property

New Jersey’s Appellate Division recently reversed a lower court and held that an evidentiary hearing was necessary to determine whether the statute of limitations should be tolled in a case in which plaintiffs allege that defendant defrauded them out of title to a property over 20 years earlier.  See Benipal v. Tri-State Petro, Inc., et al., A-0894-17T3 (N.J. Super. Ct. App. Div. Jan. 4, 2019). 

New Jersey Appellate Court Holds 2011 Amendment of Construction Lien Law Regarding Authorized Signatory of Claim Forms Does Not Apply Retroactively

New Jersey’s Appellate Division recently held that the 2011 amendment to the Construction Lien Law (the “CLL”) regarding the proper signatory to a construction lien claim does not apply retroactively and that the amendment could not be used by a claimant to validate claims it filed in 2008.  See Diamond Beach, LLC v. Mar. Assocs., Inc., 2018 WL 6729724 (N.J. Super. Ct. App. Div. Dec. 24, 2018). 

Ninth Circuit Holds That Six-Year Limitations Period Applies to TILA Rescission Action Based on Analogous State Law Limitations Period

The United States Court of Appeals for the Ninth Circuit recently held that a six-year statute of limitations period applied to an action seeking to rescind a loan under the Truth in Lending Act (“TILA”).  See Hoang v. Bank of Am., N.A., 2018 WL 6367268 (9th Cir. Dec. 6, 2018).  The case involved a home loan that plaintiffs, residents of Washington, refinanced with defendant on April 30, 2010.  Defendant failed to provide plaintiffs with a notice of right to rescind the loan, which is required under TILA.  15 U.S.C. 1635(a). 

New Jersey Federal Court Holds That Collection Letter Informing Debtor That He Could Call Debt Collector if He Had Insurance Coverage for the Debt Violated the FDCPA

The United States District Court for the District of New Jersey recently granted the plaintiff debtor’s motion for summary judgment and held that a debt collection letter stating, “[i]f you carry any insurance that may cover this obligation, please contact [the defendant debt collector’s] office at the number above” violated the Fair Debt Collection Practices Act (“FDCPA”).  See Kassin, v. AR Resources, Inc., 2018 WL 6567703 (D.N.J. Dec. 13, 2018).  In the putative class action, defendant debt collector sent a collection letter to plaintiff that contained the requisite validation notice that plaintiff could dispute the debt in writing within 30 days of receipt of the letter.

New York Supreme Court Holds Title Insurance Company Not Liable for Fraud Claim Made by Former Owner of Property

The Supreme Court of New York, Suffolk County, recently granted Fidelity National Title Company’s (“Fidelity”) motion to dismiss and held that Fidelity could not be liable to the former owner of a property for fraud.  See DeMaio v. Fidelity Nat. Title Co., Docket No. 31159/2012 (N.Y. Sup. Ct. 2018).  In the case, plaintiff was the owner of the property at issue.  Plaintiff purportedly sold the property to a couple, the Capozellos, and the Capozellos sold it again to defendant Stephen Zangre.

New Jersey Appellate Court Holds Shareholder in Closely-Held Corporation Cannot Bring Direct Claims Against Only Other Shareholder for Alleged Mismanagement, but Can for Breach of Shareholder Agreement

In a decision approved for publication, New Jersey’s Appellate Division provides an important reminder as to the crucial distinction between direct and derivative claims in shareholder actions.  Specifically, in Tully v. Mirz, the Appellate Division held that one of two shareholders of a closely-held corporation could not bring a direct action against the other shareholder for the other shareholder’s alleged mismanagement of the corporation and conversion of corporate funds, but that he had the right to bring direct claims for the other shareholder’s alleged breach of contract and breach of the covenant of good faith and fair dealing.