New Local Rules and Forms

Rule 3070-1 - procedure for lenders to file notices of payment changes or request for post-confirmjation attorney fees. Debtor may respond by 1. agreeing/no plan mod necessary, 2. agree/need mod plan, or 3. disagree and hearing requested. See new local forms.

Rule 3070-(1)(E) - motion to deem motion current at end of chapter 13 plan.

Rule 5005 -(1)(f) - in lieu of red sheet, parties may after filing, fax or e-mail to judge's chamges as directed by judge.

Quiet Title Actions

Quite title actions are equitable remedies provided for by section 65.031, 65.051, 65.061, 65.081. Must name all parties with an interest in the the property. Service by publication per sction 49.011(2).

Property Taxes

In re Fairchild Aircraft Corp. 124 B.R. 488 (Bankr.W.D.Tex. 1991). Section 505(a)(1) allows a bankruptcy judge to reopen a past valuation that appaiser believed closed and beyond challenge. In re Piper Aircraftr, 171 B.R. 419, no. 8 (Bankr.S.D.Fla. 1994).

Some court cite abstenion in decling relief under section 505. St. John's Nursing Home, 154 B.R. 117 (Bankr.D. Mass. 1993).

Section 522(o) Limition on Homestead Exemption does Not Apply to Tenant by Entireties Exemption

In re Hinton, 2007 WL 3051264 (Bkrtcy.M.D.Fla.)(Jennemann, J), secton 522(o) limitation applies only to section 522(b)(3)(A) and does not apply to 522(b)(3)(B), tenancy by entireties exemption.

Authority of Trustee of Securitized Trust

The Trustee Has The Power to Represent the Securitization Trusts in Court Proceedings
The Trustee has the power to represent the Securitization Trusts in litigation and the resolution of related disputes
by compromise and settlement will bind all relevant parties. See e.g., Carey v. Brown, 92 U.S. 171
(1875); Shaw v. Little Rock and Fort Smith R. Co., 100 U.S. 605 (1880); Redmond v. Commerce Trust, 144
F.2d 140 (8th Cir. 1944), cert. denied 323 U.S. 776, reh'g. denied 323 U.S. 819 (1945); Quirke v. St. Louis-
-San Francisco Ry. Co., 277 F.2d 705 (8th Cir. 1960).
The Trustee is empowered to assert claims as the trustee of an express trust, and the Trustee may properly
enter into and consummate a settlement and compromise on behalf of itself and all Certificateholders. Shaw v.
Little Rock and Fort Smith R. Co., supra; U.S. & Mexican Trust Co. v. U.S. Mexican Trust Co., as Trustee,
250 F. 377 (8th Cir. 1918); Friedman v. Chesapeake & Ohio Ry. Co., 261 F. Supp. 728 (S.D.N.Y. 1966), aff'd
395 F.2d 663 (2d Cir. 1968); Home Mortgage Co. v. Ramsey, 49 F.2d 738 (4th Cir. 1931); Quirke v. St. Louis-
-San Francisco Ry. Co., supra; Schallitz v. Starrett Co., 82 N.Y.S.2d 89 (N.Y. Sup. Ct. 1948); Murphey v.
Dalton, 314 S.W.2d 726 (Mo. 1958); Johnson v. Curley, 257 P. 163 (Cal. 1927); Leake v. Watson, 21 A. 1075
(Conn. 1891); 76 AM. JUR. 2D TRUSTS § 566 (1975); RESTATEMENT (SECOND) OF TRUSTS § 192
(1957).

Conflicts of Law, Statute of Limitations

Credit card agreement -- Limitation of actions -- Conflict of laws -- Choice of law provision in agreement makes Arizona law applicable to account, and three-year Arizona statute of limitations applies to actions on non-written agreements and open and stated accounts -- Allegations of complaint and generic, unsigned customer agreement attached thereto did not sufficient assert claims based upon written contract -- Cardholder agreement attached to complaint did not contain all material terms required to establish all elements of claim and was not sufficient to constitute a written contract -- Where cardholder agreement provides that creditor had right to sue when debtor first missed payment, creditor's cause of action accrued on first date payment was missed, not on date debt was “charged off” -- Complaint was not brought within three-year limitations period required by Arizona law and is dismissed with prejudice

Fair Debt Collection Practices Act

Martin v. Select Portfolio, 2008 WL 618788 (S.D.Ohio) - fdcpa distinguishes debt collectors from creditors, entity that services but does not own loan is a creditor and generally not subject to fdcpa. 102 fed appx. 484, if debt assigned for servicing before default, assignee is exempt from fdcpa, 76 f3d 103, servicing company is subject to fdcpa if loan was in default at the it acquired the loan 502 f3d 159 or based on an understanding that it was in default that is treats it as it were in default even if was not

Mortgagee Hazard Insurance

US Bank NA as servicer v. Tennessee Farmers Mutual Insurance Co., December 27, 2007. Mortgage company didn't notify insurance company that property in foreclosure. Court held foreclosure consituted an increase in hazard under the mortgage clause and therefore mortgagee clause was invalid.

Not Secured Only by an Interest in Principal Residence Real Property

repurchase agreement 101 (47)

repurchase demands

purchase and sale agreement


1. investors criticize servicers

2. servicers fail to take immediate steps to control losses

3. lenders faced with repurchase demands, doesn't get opportunity to investigae alleged defect and challegen investors action to assure good faith and fair dealing covenants per purchase and sale agreement. whether servicing tasks were performed properly. need to be aware of repurchases as a result of the hfailure of investor's servicing agents to do their job properly. lender shouldn't have to insure due to the negligence of the servicer.

Characteristics
Remittance Amount
Scheduled principal and interest, less a servicing fee (remitted the current month)
Unscheduled principal (curtailments and payoffs remitted the month following receipt)

Standing of Partnership to Sue

Prior to mid-1970's, partnerships did not have standing separate and apart from the individual partners. Then Pinellas County v. Lake Padgett Piness, 333. So.2d 472 (Fla.2nd DCA 1976) allowed partnership to sue to protect partnership's interest in real property that statute allowed to be held in partnership name. Result codified in 620.8201 and 620.8307(1),(2). Can sue and be sued in the partnership name as are separate legal entitities.

Mortgagee Issues

indorsed in blank

ability to reestablish the note

whether note is lost

ability to file counterclaim

owner and holder

servicing agent
nominee

chain of ownership

whether negotiate instrument

require to present actual note

mers relationship with lenders, lenders retain note and right to collect, mers is nominee in administrative capacity only, question of representation of assignment to mers for valuable consideration as mers did not acquire

mers tries to be holder in due course to protect it from defects in transactions which preceded the acquisition

servicer is entity contractually charged with responsiblity of servicing the mortgage account and it doesnt' have any beneficial interest in the mortgage note. 323 so 2d 679, 390 f3d 522, 798 nys 2d 346

ucc - need to be owner or merely holder to foreclose, court held need to hold and own

produce orignal note or reestablish required to prevail in foreclosure 767 so2d 549, 596 so2d 526, 851 so2d 790, 862 so2d 793

duty of good faith and fair dealing, ocwen v moss, codilis 7th cir decision, 491 fd 3rd 638, 2007, 154 ne 2d 683, 604 ne 2d 536, 273 f3d 741, 970 f2d 273, exploitation of vulnerabilities of other party

partial assignment of rights created by mortgage contract are assigned to servicer,

hola enacted in 1933 intended to provide emergency relief with respect to home mortgage indebtedness when almost l/2 of all home loans in the country were in default

holder in due course status For the lenders, a possibly bigger threat on the horizon is that homeowners' lawyers will bust up the "holder in due course" doctrine that makes it easier for subsequent owners of an IOU to collect. This doctrine says that certain defenses the evictee can use against the original lender (such as predatory lending) cannot be used against an innocent purchaser of the mortgage. The rule is enshrined in many federal and state statutes, but a judge could nonetheless find a way to side with the homeowner, particularly if a loan is purchased after it goes into default.

MD Florida Chapter 13 Attorney Fees

In re Debtor's Attorney Fees in Chapter 13 Cases, 2007 WL 2457465 (Bkrtcy.M.D.Fla.)(Williamson, J.). General procedures for award of attorneys fees in Chaptere 13 bankruptcy proceedings. Separate compensation for extraordinary matter that arose during course of representation based on contemporaneously kept time records and the lodestar method.

TILA Violation, Disclosure Statement Did not Explicitly State Payment Period

Hamm v Ameriquest Mortg. Co., ___ F.3rd ___, 2007 WL 3010973 (C.A.7 (Ill.)). Borrowers claims Lender violated TILA by failing to state explicityly the payment period in the TILA disclosure statements. Also asserted that one-week rescission right notice with three-day rescission right notice violated TILA. Disclosure statement don't say that payments will be made over 360 month period. But do set forth 359 and l.

Reg Z and FRB Staff Commentary. Deference appropriate unless demonstrably irrational. TILA requires that lender include the number, amount, and due dates or period of payments scheduled to repay the total of payments in disclosure statement. 15 USC 1638(a)(6). 12 CFR section 226.18(g)(). Hyper-technicality reigns with TILA. But opther circuits do not hold so. See, e.g. Santos-Rodriguez v. Doral Mortgage Corp., 485 F.3d 12 (1st Cir. 2007). Meaningful disclosure describes a balance between competing considerations of complete disclosure and the need to avoid informational overload.

Lender committed technical TILA violation by failing to explicitly state the payment period on the disclosure statement. States 360 payments but doesn't state monthly. Didn't mention monthly nature of payment.

Iowa Homestead Exemption Applied to Arkansas Homestead

In re Williams, 369 B.R. 470 (Bankr. W.D. Arkansas 2007). Filed in Arkansas and required to use Iowa exemptions. Home located in Arkansas. Homestead exemption under Iowa law is not resident specific. No requirement that owner be a resident of Iowa. No residency or territorial requirement. Per Drenttle, 403 F.3rd 611 (8th Cir. 2005) law can apply extraterritorially (References to state exemption statutes do not injvoke the entire law of the state. Congress used stated-defined exemptions while limiting the application of state policies that impair those exemptions). See also In re Arrol, 170 F.3d 934 (9th Cir. 1999)(Nothing in homestead exemption statutue explicitly limited homesteads to dwelling located within state). Section 522(b)(3)(A) encompasses a federal choice of law, the result of which may be contrary to a state court decision interpreting the statute. References to state exemption statutes do not invoke the entire law of the state. Drenttel, 403 F.3d at 614, cf., Butner v. United States, 440 U.S. 48 (1979)(property interest normally governed by state law could be analyzed differently if some federal interest requires a different result).

Rebuttable Presumption of Delivery of TILA Disclosures

In re Hopkins, 2007 WL 1812778 (Bkrtcy.E.D.Pa.)(Fox, J.), Even though signed written acknowledgement of receipt, borrowers given an opportunity to rebut the presumption of delivery of disclosures.

TILA Violation, Lack of Material Disclosures, Two Notices of Right to Rescind

In re White, 2007 WL 2192395 (Bkrtcy.D.Kan.)(Berger, J.). Lender failed to provide a statement of material disclosures and one of two notices of right to rescind, etc. Court voided debtor's mortgage conditioned on debtor's tender of loan proceeds, reduced the loan to $20,000, to be further reduced by amounts included in awards of statutory damages, fees, and costs, abated accrued interest and finance charges.

TILA Notice Not Defective, Rescission Not Automatic

In re Groat, 369 B.R. 413 (8th Cir.BAP 2007). Debtor attempted to rescind mortgages under TILA. TIL 15 USC secton 1601 et seq. Regulation Z. Loan secured by borrower's principal residence, TILA permits borrower to rescind loan up to three business days. 15 USC 1635 (a). When lender failes to deliver certain forms or to accurately disclose important terms, TILA extends the right to rescind to three years (or transfer or sale of property). section 1635(f), 12 CFR section 226.23(a)(3).

Notice of right to rescind must be "clearly and conspiciously" disclose the following: i. retention or acquision of security interest, ii. consumer's right to rescind, iii. how to exercise, with a form, iv. effects of rescission, v. date rescission expires. 12 CFC section 226.23(b)(1). Model form.

Debtor claims defect that lender didn't sign and year of date. Debtor didn't timely raise issue that not given two copies. No authority that lender must sign. Perfect notice not required as to date. Honest mistake. Not liable if not intentional and bona fide error. 15 USC section 1640(c). Need to show bona fide error and that creditor maintains procedures reasonably adapted to avoid errors.

Court held that notices complied with TILA and Regulation Z. Rescission is not automatic upon tender of notice. Court may condition rescission upon borrower's prior return of principal. FDIC v. Hughes Dev. Co. 938 F.2d 889 (8th Cir. 1991).