| 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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| Indiana District Court Holds Amendment To Indiana Recording Statute To Be Retroactive |
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January 4, 2010 Link
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Unable to meet the obligations on, inter alia, their $49,300 home loan, the Gysins filed for Chapter 13 bankruptcy on October 18, 2007. Bankruptcy Trustee Debra Miller initiated an adversary proceeding by filing a complaint to avoid lien, asserting a claim under 11U.S.C. § 544 to avoid the lien of Defendant LaSalle Bank National Association as trustee for the holders of Merrill Lynch Investors Trust Series 2002-AFCI. Submitted by Thomas E. Satrom.
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| Anticipating Change: How Financial Reform Will Affect Your Community Bank |
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January 4, 2010 Link
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The U.S. House of Representatives recently passed “The Wall Street Reform and Consumer Protection Act of 2009,” a banking reform bill aimed at preventing another major financial crisis. The bill, which passed 223-202, creates new regulations and oversight for large banks and Wall Street. Submitted by Junis L. Baldon.
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