News + updates + recent press
In the Winter 2021, I wrote an article about how Edmundson v. Bank of America, 378 P.3d 272 (Wash. Ct. App. 2016) caused the statute of limitations to being to run upon a debtor’s discharge from bankruptcy in Washington. In March 2022, I wrote a follow up article detailing how the Court of Appeals for the State of Washington Division I gave the servicing industry an end to the misunderstanding created by the various interpretations of Edmundson in Copper Creek Homeowners’ Association v. Wilmington, No. 82083-4-I, slip op. (January 18, 2022). On April 24, 2023, the Colorado Supreme Court avoided the disaster that is Edmundson.
In United States Bank N.A. v. Silvernagel, 2023 CO 17, the Colorado Supreme Court circumvented the use of Edmundson in Colorado. In 2006, Silvernagel obtained a second mortgage. In 2012, Silvernagel received a bankruptcy discharge after filing a Chapter 7 bankruptcy. If these facts sounds familiar, they are. They start the same way that Edmundson did as well as all the cases that followed using it as a basis for the holding. In 2019, US Bank allegedly threatened to foreclose. To avoid foreclosure, Silvernagel filed a case seeking declaratory relief on the basis that US Bank’s interest had been extinguished by the statute of limitations. Colorado has a six year statute of limitations like Washington and most of the states in the region.
Introduced in the Senate on March 23, 2023, and referred to committee on March 29, 2023, Ohio Senate Bill 94, known in short form as the Bill that “regards the Treasurer of State, recorded instruments, liens, etc.,” sponsored by Senators Andrew O. Brenner (R) and Al Landis (R), seeks to amend numerous sections of the Ohio Revised Code related to recorded instruments, but also to enact section §5301.234, thereby codifying the doctrine of Equitable Subrogation.
The legal doctrine of equitable subrogation permits one mortgagee to replace another mortgagee in lien priority and is typically claimed refinancing lenders who pay off the original mortgage and want to have the same priority as that lender. The doctrine seeks to prevent unjust enrichment and promote equity.
Introduced in the Senate on January 23, 2023, and referred to committee on February 8, 2023, Ohio Senate Bill 25, known in short form as the Bill that “regards real property foreclosures,” sponsored by Senator Bob D. Hackett (R), seeks to alter the procedures for foreclosure sales.
Chapter 2329 of the Ohio Revised Code currently governs execution upon judgments, including sales of real property resulting from foreclosure actions. SB25 proposes four significant changes to the foreclosure sale process that could result in a reduction in the length of time and cost of the foreclosure sale process:
The Presidentially-declared COVID-19 National Emergency Ended. Here's what it means for Agency-specific Loss Mitigation.
The United States Senate passed a resolution to end the National Emergency for COVID-19 on March 29, 2023, and the President signed it on Monday, April 10, ending the emergency earlier than May 11, 2023 as previously announced. Now that the National Emergency has ended, it is important to understand the implications for servicing, default, and loss mitigation. Below outlines the significance behind the ending of the National Emergency. This post includes Agency-specific updates covering:
Additional Loss Mitigation Resources
On December 30, 2022, New York Governor Kathy Hochul signed the “Foreclosure Abuse Prevention Act” into law. This law came into effect immediately. The legislation is entirely unchanged from proposal to enactment.
Key takeaways from the new law are as follows:
Questions? This post was prepared by Jacqueline F. McNally, Esq. Contact us here.
Notice as Due Process, and the Importance of Timely Filing a Claim Upon Receipt of Notice
Failure of a Mortgagee to File a Statement of Claim in a Deceased Borrower’s Probate Voids Right to Collect a Deficiency, discusses the essentiality that a mortgagee files a claim to preserve entitlement to impose liability on the estate due to an existing or potential deficiency. While it was the Florida Supreme Court that set this precedent in 1940, it was the United States Supreme Court’s decision in Pope that provided clarity 48 years later regarding the importance of notice to creditors against the backdrop of the Fourteenth Amendment.
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