News & Analysis as of August 9, 2025

Borrowers

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Foreclosure is a legal process whereby a lender seeks to force the sale of a mortgaged property in order to recover the balance of a delinquent loan. Recently, the foreclosure process has been the subject of greater legislative and judicial scrutiny after systemic abuses were uncovered during the widespread foreclosure crisis resulting from the Great Recession. less -

Second Department Holds Judicial Estoppel Bars Application of FAPA

McGlinchey Stafford on 8/8/2025

On July 16, 2025, the Appellate Division, Second Department declined to apply the Foreclosure Abuse Prevention Act (FAPA) to a mortgage foreclosure commenced prior to FAPA’s enactment, pursuant to the doctrine of judicial...more

Rates Stay Steady, Markets Are Steaming— Hot Fun in the Summertime, July 2025 - Integrated Amplifier: No-Appointment of a Receiver...

Cadwalader, Wickersham & Taft LLP on 8/1/2025

In a recent decision in New York County Supreme Court, the Court granted the plaintiff lender’s pre-summary judgment motion to appoint a receiver in a mortgage foreclosure action, even though the defendants (borrower)...more

Firmly Fixated With Allonges - REF News & Views

Cadwalader, Wickersham & Taft LLP on 4/30/2025

In a recent decision by the Supreme Court of the State of New York in Kings County (the Court), HSBC Bank USA, N.A. (the Plaintiff) initiated a mortgage foreclosure action against Jack and Sabah Srugo (collectively, the...more

Foreclosure Process Clarification: No Pre-Foreclosure Notice Required to be Served on Appointed Estate Fiduciary for Deceased...

Falcon Rappaport & Berkman LLP on 4/8/2025

In a significant legal victory for lenders, the Supreme Court of New York recently ruled in favor of our lender client in a residential foreclosure action against the estate of its borrower. This decision confirms that...more

Equitable Fairness: Court Denies Lender’s Routine Motion for Summary Judgment In Commercial Foreclosure Action Finding Issues of...

Falcon Rappaport & Berkman LLP on 1/22/2025

In a recent decision, the Supreme Court in Queens County denied lender’s motion for summary judgment and appointment of a referee to compute in a foreclosure action, finding triable issues of fact, underscoring the importance...more

The Appellate Division, Second Department, Holds that Banking Law 6-l is a Personal Defense that Can Only be asserted by the...

Freiberger Haber LLP on 11/4/2024

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. We have also written numerous articles relating to the recently enacted FAPA... ...more

Ohio Appeals Court Finds Credence to “Show Me the Note” Theory in Foreclosure

McGlinchey Stafford on 7/25/2024

On June 21, 2024, the Ohio Second Appellate District reversed a trial court decision granting plaintiff summary judgment in a residential foreclosure action, finding that a competing lienholder’s discovery request for...more

Northern District of Texas Denies Summary Judgment to Lender on Fiduciary Duty Claim Based on Evidence of Excessive Control

King & Spalding on 5/8/2024

On February 6, 2024, the U.S. District Court for the Northern District of Texas, recognizing that a lender may assume a role of a fiduciary to a borrower in certain circumstances, denied a summary judgment motion by Wallis...more

Navigating Desbrunes: Implications and the Case for Overturning

Bradley Arant Boult Cummings LLP on 4/10/2024

In a less-than-thousand-word opinion, the Fourth District Court of Appeal of Florida put foreclosure cases across Florida in jeopardy. Namely, in all foreclosure cases in which a borrower is deceased, unless the legal...more

Proper Evidentiary Support for Compliance with RPAPL 1304 Remains an Issue for Foreclosing Lenders

Freiberger Haber LLP on 7/10/2023

Because there have been a number of appellate decisions interpreting RPAPL 1304, this Blog has written frequently on that topic. By way of background, and as previously noted in the Blog, RPAPL 1304 requires that at least...more

Further Developments in Mezzanine Foreclosures

Cadwalader, Wickersham & Taft LLP on 4/27/2022

The New York State Supreme Court, New York County Commercial Division (the “Court”) decided in U.S. Bank, N.A. v. 342 Property LLC, on February 14, 2022, that a mezzanine lender that is not a party to loan documents that...more

Legal Guidance Watch: Second Circuit Nostra Sponte Certifies a Series of Mortgage Lender Compliance Questions to New York Court of...

Hinshaw & Culbertson - Consumer Crossroads on 3/4/2020

The Second Circuit recently certified two questions to the New York Court of Appeals regarding the requisite proof needed for borrowers to dispute the lender's compliance with New York Real Property Procedures and Acts...more

Not All Deed of Trust Attorney Fee Clauses are Created Equal

Patton Sullivan Brodehl LLP on 11/30/2018

Lenders who prevail on claims arising from a deed of trust can always recover their attorney fees from the losing party as long as the deed of trust says something about fee recovery, right? It’s not that simple....more

Mortgage Foreclosure Alert: Attaching Promissory Note in Illinois Sufficient to Show Standing; but HUD Letters Require Proof of...

Hinshaw & Culbertson LLP on 10/19/2017

In a foreclosure action, the Illinois Appellate Court recently held that the foreclosing lender established its standing by attaching the blank-indorsed note to its complaint, but reversed judgment and remanded for the trial...more

North Carolina Supreme Court Adopts "Substantial Competent Evidence" Requirement for Borrowers Asserting "True Value" Defense in...

Ward and Smith, P.A. on 5/10/2017

On Friday, May 5, 2017, in a major victory for lenders, the North Carolina Supreme Court reversed the North Carolina Court of Appeals’s decision in United Community Bank v. Wolfe. In July 2015, the Court of Appeals decided in...more

Real Property, Financial Services & Title Insurance Update: Week Ending October 23, 2015

Carlton Fields on 10/27/2015

REAL PROPERTY UPDATE - Foreclosure/Documentary Stamp Tax: deferred interest on a “pick-a-payment” mortgage did not amount to future advance, which would have required payment of documentary stamp tax - Steinberg v. Wells...more

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