Creditors & Debtors Rights

New Jersey Law Journal |Case Digests

JP Morgan Chase Bank v. Boyadjian

January 18, 2019

Defendants appealed the denial of their motion for reconsideration of the order that granted plaintiff's motion to strike their answer and enforce the note and mortgage.
Daily Business Review |

Brock & Scott Sued in Federal Court in Florida Over its Debt Collection Practices

Zach Schlein | January 17, 2019

A lawsuit filed Tuesday in the Southern District of Florida alleges Winston-Salem, North Carolina-based firm Brock & Scott broke state and federal law in its pursuit of a Fort Lauderdale woman's debt.
New York Law Journal |Case Digests

Citibank NA v. Geyer

January 17, 2019

Citibank Fails to Establish Entitlement to Recover on Breach Claim, But on Account Stated
New Jersey Law Journal |Case Digests

802 Absecon Blvd. v. Fairview Inv. Fund II, LP

January 17, 2019

Defendant moved for assessment of damages; plaintiffs objected to defendant's submission of a proposed form of order.
New Jersey Law Journal |Analysis

Proceed With Caution When Handling Retirement Assets in a Divorce

Carl J. Soranno, Mia V. Stollen and Eric L. Abramson | January 16, 2019

Court opinions are shifting regarding protections for 401(k)s and IRAs.
New York Law Journal |Case Digests

Pisman v. Zucker

January 16, 2019

Ripeness Analysis Prongs Not Met in Rights Suit Over DOH's ACC Collection Letter
New Jersey Law Journal |News

Lacking Proof of Interest Rate, State Denied Full Recovery in Student Loan Case

David Gialanella | January 15, 2019

"We are not persuaded that the loan print outs, which included interest rates, filled the void in plaintiff's proofs; they were prepared just prior to trial and there is no evidence the purported interest rates were ever communicated" to the borrower, Appellate Division Judge Mitchel Ostrer wrote in New Jersey Higher Education Student Assistance Authority v. Siaw.
Daily Business Review |Commentary

11th Circ.: Direct Payments to a Secured Creditor in a Chapter 13 Bankruptcy Are Not Discharged

Christina Paradowski | January 15, 2019

On Dec. 6, 2018, the U.S. Court of Appeals for the Eleventh Circuit held that a Chapter 13 plan stating that a secured debt will be paid directly to the creditor does not constitute the debt being “provided for” by the plan, and thereby precluding a discharge of that debt.
The Legal Intelligencer |Case Digests

MB Fin. Bank v. Rao

January 15, 2019

Trial court abused its discretion and committed reversible error when it precluded a lost note affidavit from evidence in a foreclosure action because appellant presented sufficient evidence to show that the affidavit was admissible as a business record. Reversed.
The Legal Intelligencer |Case Digests

Vegari v. Mazura-Aherns

January 15, 2019

A defendant who held settlement funds in escrow did not establish a right to a stay of the proceeding, and the court held that interpleader was not proper.
The Legal Intelligencer |Case Digests

Federal Home Loan Mortgage Corp. v. Prussman

January 15, 2019

The plaintiff bank failed to name an indispensable party to this ejectment action where it failed to name both prior owners of the property and its attempt to name all "occupants" in the complaint did not adequately cover one of the recorded prior owners. The court sustained defendant's preliminary objections.
New Jersey Law Journal |Case Digests

New Jersey Higher Educ. Student Assistance Auth. v. Siaw

January 15, 2019

Plaintiff appealed from the judgment of the trial court, which denied plaintiff recovery of interest on its note with defendant.
Connecticut Law Tribune |Case Digests

Garcia v. Law Offices Of Howard Lee Schiff, P.C.

January 14, 2019

Court Denies Cross Motions For Summary Judgment On FDCPA Debt-Collection Letter Casec
Connecticut Law Tribune |Case Digests

Wells Fargo Bank v. Robertson

January 14, 2019

Plaintiff Entitled to Judgment of Foreclosure
New York Law Journal |Case Digests

Somerset v. Stephen Einstein & Assocs. PC

January 11, 2019

Law Firm's 'Sewer' Service Noted in FDCPA Violation Complaint's Amendment
The Recorder |Case Digests

Zabriskie v. Federal National Mortgage Association

January 10, 2019

Fannie Mae not consumer reporting agency for purposes of FCRA
New York Law Journal |Case Digests

Avilon Autmotive Group v. Leontiev

January 09, 2019

Federal Case Did Not Preclude Claims in Suit to Recover Loans to Firms Looted by Defendant
New Jersey Law Journal |Case Digests

Wells Fargo Bank, N.A. v. Bennett

January 09, 2019

Defendant appealed the denial of his motion to vacate the final judgment in a foreclosure action.
New Jersey Law Journal |Case Digests

Nationstar Mortgage, LLC v. Jenkins

January 09, 2019

Defendants appealed the denial of their motion to vacate the final judgment in a foreclosure action.
New Jersey Law Journal |Case Digests

Sterling Nat'l Bank v. Ruccio

January 09, 2019

Defendant appealed from the entry of final judgment of foreclosure.
New York Law Journal |Case Digests

Gissendaner v. Enhanced Recovery Co. LLC

January 08, 2019

Collection Notice's Statements About Interest, Charges Not Misleading
Texas Lawyer |Case Digests

Yamin v. Carroll Wayne

January 07, 2019

Conn received a money judgment against Stephen Yamin in 2010.
Texas Lawyer |Case Digests

Lyda Swinerton v. Cathay Bank

January 07, 2019

Following a one-day bench trial on remand, the trial court signed a final judgment declaring that Lyda Swinerton Builders, Inc. held a mechanic's lien interest superior to the interest of Cathay Bank.
New Jersey Law Journal |Case Digests

Morris Imaging Assoc., PA v. Semilia

January 07, 2019

Defendant appealed the grant of summary judgment to plaintiff in a dispute over bills for x-rays and a CAT scan.
New York Law Journal |Analysis

PROMESA and McKinsey's Lack of Disinterestedness

Carlos J. Cuevas | January 04, 2019

McKinsey is advising the FOMB on Puerto Rico's debt restructuring. After McKinsey was retained, it was revealed that McKinsey, through its affiliates, holds at least $20 million of Puerto Rico's debt. The fact that McKinsey is not disinterested has produced the appearance of a conflict of interest, which casts a specter of doubt on the legitimacy of Puerto Rico's bankruptcy case.
New York Law Journal |News

Ex-Milberg Partner Claims Firm's Combination Deal a 'Fraudulent Scheme'

Christine Simmons | January 04, 2019

About a year after Milberg signed a deal to transfer assets, the firm's leader told ex-partner Steven Schulman it would no longer pay him.
New York Law Journal |Case Digests

LG Capital Funding LLC v. FLASR Inc.

January 04, 2019

Expectation Damages, Legal Expenses Awarded Creditor Over Failure to Convert Note
New Jersey Law Journal |Case Digests

Koenig v. Dimuzio

January 04, 2019

Appellant appealed the apportionment of the settlement of a legal malpractice action.
Connecticut Law Tribune |Analysis

Rule 2016(b) and Disclosure of Payment of a Debtor's Legal Fees

Carlos J. Cuevas | January 03, 2019

Rule 2016(b) requires a debtor's attorney to disclose the compensation that he or she has received or to disclose an agreement that he or she has made with a debtor concerning the attorney's compensation.
New Jersey Law Journal |Case Digests

Gray v. CIT Bank, N.A.

January 03, 2019

Defendants moved to dismiss plaintiffs' putative class action alleging bank, mortgage lender, mortgage servicer and insurers conspired to overcharge plaintiffs in connection with forced-placed hazard insurance and unnecessary property inspection fees.
New Jersey Law Journal |Case Digests

Nationstar Mortgage, LLC v. Staggers

January 03, 2019

Appellant appealed the denial of its motion to vacate a sheriff's sale.
New York Law Journal |Analysis

Understanding Mortgage Acceleration and Its Statute of Limitations Implications

Adam M. Swanson | January 02, 2019

Legacy foreclosures are running up against New York's six-year foreclosure statute of limitations, CPLR §213(4). Lenders' counsel must be vigilant. Mortgages are routinely being discharged under the statute of limitations.
New York Law Journal |Case Digests

New Gold Equities Corp. v. Valoc Enters. Inc.

January 02, 2019

Creditor Is Entitled to Partial Summary Judgment For Debtor's Lack of Good Faith
Texas Lawyer |Case Digests

Houle v. Capital One

December 31, 2018

Capital One filed a petition against Houle, alleging he had breached their credit card account agreement for failure to pay.
Texas Lawyer |Case Digests

Mulvey v. US Bank National

December 31, 2018

This appeal involves a summary judgment entered in favor of a lender that foreclosed on property securing a home equity loan.
New York Law Journal |Case Digests

Arnold v. Navient Solutions LLC

December 27, 2018

Claims Over Loan Servicer's Responsibilities Preempted by Fair Credit Reporting Act
The Recorder |Case Digests

Easley v. Collection Service of Nevada

December 27, 2018

Debtors successfully challenging violation of automatic bankruptcy stay entitled to appellate fees and costs regardless of which party appealed
New Jersey Law Journal |Case Digests

Pennymac Holdings, LLC v. Trovato

December 27, 2018

Defendants appealed the entry of a final judgment of foreclosure and dismissal of their counterclaims.
New York Law Journal |Case Digests

Colfin Bulls Funding B LLC v. Ampton Investments Inc.

December 26, 2018

Judgment Debtor Must Turn Over Fine Art and Shares of Stock to Satisfy Judgment
New Jersey Law Journal |Case Digests

Diamond Beach, LLC v. March Assoc., Inc.

December 26, 2018

Fourth party plaintiff appealed the discharge of its construction lien.
The Legal Intelligencer |Case Digests

LSF9 Master Participation Trust v. Desy

December 25, 2018

Defendant failed to provide evidence to create a genuine issue of material fact in this mortgage foreclosure proceeding, so the court granted summary judgment in favor of plaintiff.
Connecticut Law Tribune |Case Digests

Vanderbilt Mortgage & Finance, Inc. v. Caccamo

December 24, 2018

Interest in Property Subject to Existing Mortgage
New Jersey Law Journal |News

Judge Says 'Please Call' Note About Insurance Coverage Voided Collection Letter, Certifies Class

David Gialanella | December 19, 2018

It was "a close call," the judge said, but a debt collection letter's invitation to "please call" the collector to discuss the possibility of insurance coverage was found to violate the federal Fair Debt Collection Practices Act.
Delaware Law Weekly |Case Digests

Mergenthaler v. Triumph Mortgage Corp.

December 19, 2018

A judgment creditor was required to refresh a judgment after five years before obtaining a writ of execution, but the court renewed plaintiff's judgment nunc pro tunc due to the court's ministerial error.
Delaware Law Weekly |Case Digests

LSF9 Master Participation Trust v. Tucker

December 19, 2018

The federal court lacked jurisdiction to hear defendant's challenge to a state court's decision in this mortgage foreclosure action.
New Jersey Law Journal |Case Digests

Residential Mortgage Loan Trust 2013-TT2 v. Morgan Stanley Mortgage Capital, Inc.

December 19, 2018

Defendants appealed from the grant of summary judgment to plaintiff in its quiet title action.
New Jersey Law Journal |Case Digests

Deutsche Bank Nat'l Trust Co. v. Patrick

December 18, 2018

Defendant appealed from the grant of summary judgment to plaintiff on defendant's trespass counterclaim and third-party complaint against plaintiff and Wells Fargo Bank.
The Legal Intelligencer |Case Digests

Bank of America, N.A. v. Bush

December 18, 2018

Plaintiff's complaint against the defendant credit card holder failed to satisfy specificity requirements where the bank failed to attach a copy of the cardmember agreement which purportedly governed defendant's alleged debt and failed to provide enough detail for defendant to calculate the amount allegedly due. The court sustained defendant's preliminary objections.
The Legal Intelligencer |Case Digests

Capital One Bank (USA), N.A. v. Farmer

December 18, 2018

Where the defendant creditor failed to respond to plaintiff's requests for admissions, the allegations therein were deemed admitted and plaintiff established that defendant was liable for the outstanding credit card debt sought in this matter. The court granted plaintiff's motion for summary judgment.
New Jersey Law Journal |Case Digests

In re: Revel AC Inc.

December 17, 2018

Plaintiff Tenant Could Apply Setoff Against Rent Under Bankruptcy Code Where Rent and Recoupment Provisions Arose from Same Lease Transaction
Connecticut Law Tribune |Case Digests

Wahba v. JP Morgan Chase Bank, N.A.

December 17, 2018

Defendant Entitled to Litigation Expenses for Both Defense of Plaintiff's Claim and Prosecution of Counterclaim
New York Law Journal |

Using a CPLR 5222 Restraining Notice to Freeze Fraudulently Transferred Assets

Bernard D'Orazio | December 14, 2018

The technique of serving Restraining Notices to freeze accounts held in the name of third parties provides judgment creditors with a potentially powerful Judgment enforcement tool. As with anything powerful, it should be used carefully and wisely.
New Jersey Law Journal |Analysis

Creditor Rights Against Tenancy by the Entirety Property

Daniel M. Stolz | December 06, 2018

In our practice, we are often surprised that clients, accountants and many attorneys are not fully familiar with the rights of creditors against property owned by tenants by the entirety.
New Jersey Law Journal |News

Class Certified in Rider Student's Suit Over Student Loan Collections

Michael Booth | December 04, 2018

A federal judge in New Jersey has certified a class of student loan borrowers in an action claiming a debt-collection letter contained false and misleading statements about possible late charges.
New York Law Journal |Analysis

New York Court Finds Lender Has No Security Interest in FAR Bonus

Janice Mac Avoy and Justin J. Santolli | November 26, 2018

The New York County Supreme Court's decision in 'CB Frontier v. Wilmington Trust, N.A.' to grant summary judgment holding that the floor area ratio bonus was not collateral under the mortgage surprised many in the commercial real estate community. While the decision has been appealed to the Appellate Division, the current decision raises areas of concern for lenders, and could lead borrowers (and lenders) to more closely scrutinize their existing loan documents to see if they will support a claim that a FAR bonus is not collateral under the mortgage.
The Legal Intelligencer |Commentary

Revitalizing the Franchisee: A Look at Casual Eatery Applebee's

Craig R. Tractenberg | November 23, 2018

The symbiotic relationship between franchisor and franchisee becomes most evident when a large franchisee is stressed.
New York Law Journal |Analysis

An Imperfect Picture: Film Financings and Problems in Copyright Perfection

Bruce Goldner | November 19, 2018

Unfortunately, the law on how to perfect a lien in a copyright application is foggy at best. This article sketches out pitfalls of the current process for perfecting a lien on a copyright application, and potential steps that a financier may take to help perfect and protect its investment.
New York Law Journal |Analysis

Latest Decision Reaffirms RMBS Statute of Limitations Principle

Lynn K. Neuner and William T. Russell Jr. | November 14, 2018

In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss 'Deutsche Bank National Trust Company v. Flagstar Capital Markets Corporation', the latest in a series of decisions construing the application of New York's statute of limitations to residential mortgage backed securities (RMBS) claims.
Daily Report Online |News

Ga. Appeals Court Rules Borrower Not Personally Liable for $5M Loan on Failed Shopping Center

Katheryn Tucker | October 19, 2018

Judge Billy Ray, who was just confirmed to a lifetime appointment to federal court, wrote the reversal released Tuesday, joined by Judges Chris McFadden and Brian Rickman.
New York Law Journal |Analysis

'In re DeFreze' and Non-Dischargeability of Debts Pertaining to Non-Filed and Late Filed Income Tax Returns

Carlos J. Cuevas | October 18, 2018

The 'DeFreze' decision is reflective that Bankruptcy Code §523(a)(1) is intended to protect the taxing authorities.
Daily Business Review |Commentary

Unsecured Trade Creditors in Bankruptcy Cases May Have Received Early Holiday Gift

Charles Tatelbaum | October 18, 2018

At the end of the summer, Delaware U.S. District Judge Richard G. Andrews issued an opinion in the case of Hargreaves v. Nuverra Environmental Solutions, which can have a profound benefit to unsecured trade creditors in bankruptcy cases where there is substantial leveraged secured debt and the value of the borrower's assets is less than the amount of the secured debt.
New York Law Journal |Analysis

Do You Have a Trade? Recent Decision Highlights Need for Clarity in Trading Bankruptcy Claims

Julia Lu and David Daniels | October 12, 2018

Bankruptcy Judge Michael Wiles' decision in 'In re Westinghouse Electric Co.', 588 B.R. 347 (Bankr. S.D.N.Y. 2018), rejected a contention that two parties had reached a binding agreement to trade and offers valuable lessons for parties who wish to avoid a similar fate.
New York Law Journal |News

Class Action Targets Student Loan Co.'s Alleged Forgiveness Obstructions

Colby Hamilton | October 03, 2018

The suit claims Navient's practices diverted otherwise eligible borrowers from taking full advantage of federal loan forgiveness programs aimed at helping public-sector and nonprofit workers.
New York Law Journal |

Dividing Delaware LLCs

Barbara M. Goodstein and Jennifer Kratochvil | October 03, 2018

In this Secured Transactions column, Barbara M. Goodstein and Jennifer Kratochvil write: The new Delaware division statute will likely provide efficiencies for corporate transfers and other transactions, but creditors need both to consider their existing finance agreements and be mindful in documenting new transactions of the effect of this new legislation in regard to limitations on such transfers and other transactions.
New Jersey Law Journal |News

2 Years Too Long to Wait to Seek Arbitration, US Judge Rules in Certifying Class Against Collector

Michael Booth | October 01, 2018

A court may refuse to enforce an arbitration agreement when the party seeking arbitration waives its right to arbitration," U.S. District Judge Esther Salas said. "GC's 24-month delay is even longer than the delays in cases where the Third Circuit found waiver.
New York Law Journal |

Legal Privilege Pitfalls and Perils in Bankruptcy

Christopher Harris and Kristof Szoke | September 21, 2018

Bankruptcy can considerably complicate the evaluation of legal privilege, due to the presence of shifting corporate control, parties with rapidly changing stakes, and fiduciary duties owed to multiple entities with differing interests.
New York Law Journal |

Does Allowing Postpetition Interest on an Unpaid Make-Whole Amount Result in an Impermissible Double Recovery?

James H. Millar | September 21, 2018

Explore why the Fifth Circuit's forthcoming decision in 'Ultra Petroleum' will have broad application.
New York Law Journal |

Drawing the Borders on Chapter 15 Bankruptcy

Leslie A. Berkoff | September 21, 2018

April 2018 was a very busy month for the interpretation and application of Chapter 15 in the U.S. Bankruptcy Court for the Southern District of New York. During those four weeks, three Bankruptcy Judges issued opinions focusing on various aspects of Chapter 15 of the U.S. Bankruptcy Code.
New Jersey Law Journal |News

Progress Made, But Work Remains on Foreclosures, NJ Court Committee Says

Michael Booth | September 20, 2018

"The recommendations set forth by this committee will further improve on efforts to resolve housing disputes in a fair and equitable manner that benefits homeowners, lenders and communities throughout New Jersey," said the chairman of the committee, Appellate Division Judge Glenn Grant, the acting administrative director of the courts, in a statement.
The Legal Intelligencer |Commentary

Literal Meaning of Release Provisions Enforced Over the Objection of Plan Proponents

Francis J. Lawall and Kenneth A. Listwak | September 13, 2018

The bankruptcy plan confirmation process typically requires intensive negotiations involving numerous creditor groups and other parties-in-interest. As a result, the scope of the releases embedded within a plan is subject to multiple reviews by such parties and then approval by the bankruptcy court.
Daily Business Review |

Law Firm Accused of 'Sewer Service' — Covertly Obtaining Default Judgments Against Defendants

Zach Schlein | September 05, 2018

Broward attorney Justin Zeig filed a class action lawsuit against the Pollack & Rosen firm in the Southern District of Florida Monday. The suit alleges that the firm and debt buyer Midland Funding violated consumers' rights during debt collections.
Daily Report Online |News

Law Firm Accused of 'Sewer Service' — Covertly Obtaining Default Judgments Against Defendants

Zach Schlein | September 05, 2018

The suit alleges that the firm—which has offices in Florida, Georgia and Alabama—and debt buyer Midland Funding violate consumers' rights during debt collections.
Daily Business Review |News

EB-5 Investments in Palm Beach Hotel Paid for Home, Yacht, Credit Cards, Indictment Says

Lidia Dinkova | September 04, 2018

A developer and a Palm Beach attorney are accused of diverting money from foreign investors to personal luxuries.
Daily Business Review |Commentary

Is Your Business a Debt Collector?—If So, Watch Out.

Charles M. Tatelbaum and Ian Lis | August 28, 2018

On Aug. 7, the U.S. Court of Appeals for the Third Circuit issued an opinion in the case of Tepper v. Amos Financial (Case No. 17-2851) which has sent, and should send, shock waves to creditors and institutions that not only regularly purchase debt, but also those who can be classified as "debt collectors" under the Federal Fair Debt Collection Practices Act (FDCPA) 15. U.S.C. Section 1692.
Daily Business Review |News

Bond Finance Director Calls State Debt Reduction a 'Sea Change'

Lloyd Dunkelberger | August 15, 2018

The debt amount dropped from $28.2 billion in July 2010 to $21 billion through June 30, Ben Watkins, director of the bond finance agency, told Gov. Rick Scott and Cabinet members.
New York Law Journal |Analysis

A Field Guide to Asset Forfeiture

Peter E. Fisch and Mitchell L. Berg | August 14, 2018

While asset forfeiture is commonly thought of as applying to personal property, such as a vehicle used to illegally transport narcotics, in their Transactional Real Estate column, Peter Fisch and Mitchell Berg discuss its application to real property.
Daily Business Review |Conversation

New 'Substantial Doubt' Standard for Foreign Judgment Enforcement in Fla.

Arnoldo B. Lacayo, Juan J. Mendoza and Andres H. Sandoval | August 07, 2018

A recent change to a state law concerning the recognition and enforcement of foreign judgments in Florida may make it easier to avoid payment of valid debts.
New Jersey Law Journal |Analysis

Court Clarifies Standing Requirements if Note and Mortgage Separated

Rachel G. Packer and Joy Harmon Sperling | July 27, 2018

OP-ED: Given the confusion among many courts as to how the foreclosure process works with regard to GSE loans, the decision in "Capital One v. Peck" should be helpful.
National Law Journal |News

Ohio Law Firm, Defended by Jones Day, Beats CFPB's Deception Claims

C. Ryan Barber | July 27, 2018

An Ohio federal judge said the demand letters of Weltman, Weinberg & Reis Co., which focuses on creditors' rights, accurately gave the firm's identity and legal description. “As such,” the judge wrote, “it cannot be fairly described as false or misleading simply for correctly identifying Weltman as a law firm.”
Daily Business Review |News

Chinese EB-5 Investors in Unfinished Las Olas Ocean Resort Allege Fraud

Lidia Dinkova | July 18, 2018

The unfinished Fort Lauderdale hotel is set for a bankruptcy auction Aug. 15.
Daily Business Review |Profile

Attorney Michael Dunn Talks Business Startups, Practicing With His Parents

Daily Business Review | July 13, 2018

Michael Dunn is managing partner at Dunn Law in Miami.
New Jersey Law Journal |Commentary

Judges Are Not Biased Against Debt Collectors

Andrew M. Milz | July 06, 2018

OP-ED: Frustration is no excuse for lashing out at judges who correctly apply the Fair Debt Collection Practices Act, an important consumer protection law.
New Jersey Law Journal |Commentary

Calling out Judicial Bias Against Debt Collectors in NJ

Michael Harrison | June 29, 2018

OP-ED: The Fair Debt Collection Practices Act is a well-intentioned law that is in place to curb harassing and abusive conduct by debt collectors. Unfortunately, judges have ignored the purpose of the statute and continually penalize debt collectors for conduct that is not abusive or harassing.

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