| What Is Enough Knowledge To File A Proof Of Claim |
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February 8, 2010 Link
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Bankruptcy Rule 9011 is the bankruptcy court’s version of Rule 11 and it applies to proof of claim documents. When the Proof of Claim is filed by the original creditor, there is often little doubt about the filing creditor’s knowledge of the claim and that creditor’s possession of adequate supporting documentation. Submitted by Vincent E. Mauer.
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| Noting the Notary Provisions |
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February 3, 2010 Link
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As this financial crisis continues and more cases wind themselves through to the bankruptcy courts, a rather disturbing trend is becoming apparent. The bankruptcy courts are finding that what would appear to be valid and secured debts are really unsecured. To the erstwhile secured party, such a change comes as a most unpleasant shock. This is particularly true when the reason for this transformation is revealed: the lack of a proper notary clause! Submitted by Kimberly K. Mauer.
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| Four More are Sentenced for their Roles in Extensive Mortgage Fraud Scheme |
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February 3, 2010 Link
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On January 26, 2010, Edward McGee (76), Kenneth O. McGee (50), and Robert Mitchell (43) - of Vandalia, Ohio - and Kamal J. Gregory (35) - of Centerville, Ohio, were sentenced in federal court by U.S. District Judge Michael A. Barrett for their respective roles in an extensive mortgage fraud scheme involving 210 residential properties. Submitted by Jeffrey S. Rosenstiel.
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| The Seventh Circuit Rules the Application of Indiana’s Uniform Consumer Credit Code to an Illinois Lending Company Violates the Commerce Clause |
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February 3, 2010 Link
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This past week, the U.S. Court of Appeals for the Seventh Circuit held that the application of Indiana’s Uniform Consumer Credit Code (“UCCC”) to an Illinois company, which had offices only in Illinois, but advertised and made loans to a significant number of Indiana residents just across the state line, violated the commerce clause of the U.S. Constitution. 1 Submitted by Lucy R. Dollens.
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| Homeowners Challenge Mortgage Electronic Registration Systems (MERS) Ability To Enforce The Mortgages It Administers |
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January 28, 2010 Link
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Homeowners have begun to successfully challenge mortgage servicers’ standing to foreclose in their own name. Rule 17(a) of the Federal Rules of Civil Procedure requires that an action be prosecuted in the name of the real party in interest. Homeowners, as detailed below in the Nevada cases, have begun arguing and have had some success challenging a mortgage servicer’s standing by asserting that the servicer is not the “real party in interest.” Submitted by Erica F. O'Brien.
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| Pending Kentucky Legislation |
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January 25, 2010 Link
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Kentucky’s annual 60 day legislative period began January 2010. Proposed legislation of interest to the banking industry includes the following:
Senate Bill 39 proposes that any business that assesses late penalties against a consumer is now required when issuing a refund to that consumer to make the refund within the same time parameter used in assessing a penalty. Submitted by Denise H. McClelland.
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| Indiana Court of Appeals Clarifies What Limitations Period Applies to Suits Brought on Credit Card Debts |
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January 25, 2010 Link
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In Smither v. Asset Acceptance, LLC, the Indiana Court of Appeals clarified what statute of limitations applies to suits based on credit card agreements and when a cause of action under credit card agreements accrues. ___ N.E.2d ___, No. 55A04-0902-CV-70, 2010 WL 97999 (Ind. Ct. App. Jan. 12, 2010). The court held that the six-year limitations period provided by Indiana Code section 34-11-2-7(1), which governs “[a]ctions on accounts and contracts not in writing” applies to such claims. Submitted by Darren A. Craig.
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| Sixth Circuit Bankruptcy Appellate Panel Affirms Bankruptcy Court Ruling Denying Avoidance of Mortgage by Chapter 7 Trustee in In re Roberts |
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January 11, 2010 Link
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The Bankruptcy Appellate Panel of the Sixth Circuit (the “B.A.P.”) affirmed the decision of the Bankruptcy Court for the Southern District of Ohio (the “Bankruptcy Court”) in Hardesty v. Citifinancial, Inc. (In re Roberts), 402 B.R. 808 (Bankr. S.D. Ohio 2009), in which the Bankruptcy Court ruled that the Chapter 7 Trustee could not avoid a mortgage on the debtors’ residence, which was granted by the debtors to Citifinancial, Inc. prior to the debtors’ bankruptcy.1
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