Sheriff’s Fees: Surprise, a Commission May Be Due for a Foreclosure Sale That Did Not Take Place

Dobin v. Golden (In re Smith), 599 B.R. 266 (Bankr. D. N.J.) –

A chapter 7 trustee brought an adversary proceeding objecting to (1) a claim filed by a sheriff for a commission based on a prebankruptcy foreclosure sale that does not take place and (2) a claim by the secured creditor for reimbursement to the extent it was liable for payment of the commission. The bankruptcy court treated the parties’ pleadings as cross-motions for summary judgment. Continue reading

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Reverse Mortgages: Can A Reverse Mortgage Loan Be Reinstated?

Reverse Mortgage Solutions, Inc. v. Nunez, 598 B.R. 876 (S.D. Fla. 2019) –

A debtor filed a chapter 13 plan that proposed to cure defaults under a reverse mortgage by paying unpaid taxes and insurance. The mortgagee objected, arguing that because the debtor was not a “Borrower,” it was entitled to accelerate the loan and the debtor was required to pay the loan in full in order to retain the property. The bankruptcy court ruled in favor of the debtor, and the mortgagee appealed to the district court. Continue reading

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Yield Maintenance Premiums: The Continuing Saga of Premiums Charged after Involuntary Acceleration

In re 1141 Realty Owner LLC, 598 B.R. 534 (Bankr. S.D. N.Y. 2019) –

A debtor objected to a proof of claim filed by a mortgagee that included a Yield Maintenance Default Premium. The debtor argued that the mortgagee had accelerated the loan so that any prepayment premium should be disallowed as unenforceable. The proof of claim totaled ~$32 million and included a “make whole” or yield maintenance premium of ~$3.1 million. Continue reading

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Exclusivity and Tenant Mix: The Case of the Missing Shopping Center

In re Toys “R” Us Prop. Co. I, LLC, 598 B.R. 233 (Bankr. E.D. Va. 2019) –

The debtor proposed to assume and assign a lease to a discount grocer. The landlord objected based on the fact that a discount grocery store was located on an adjacent parcel owned by the landlord. The bankruptcy court considered whether the tenant mix in the shopping area and an exclusivity clause in the lease for the adjacent grocery store were relevant to its ruling on the proposed assignment. Continue reading

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Lis Pendens: Is It A “Transfer” (And Thus Avoidable) Or Not?

Viera v. Whitfield (In re Shiver), 598 B.R. 221 (Bankr. D. S.C. 2019) –

A chapter 7 trustee sought to avoid a judgment, a lis pendens and a foreclosure decree involving the debtor’s property as preferences and/or by exercising the strong arm power of a bona fide purchaser of real estate. The bankruptcy court addressed cross-motions for summary judgment. Continue reading

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Bankruptcy Sales and Mortgage Boo-Boos: Timing Can Make All the Difference in the World

Trinity 83 Dev., LLC v. Colfin Midwest Funding, LLC, 917 F.3d 599 (7th Cir. 2019) –

A Chapter 11 debtor sought to avoid the cancellation of a mortgage satisfaction as a fraudulent conveyance, contending that the mortgage satisfaction extinguished the debt and security interest. The bankruptcy court disagreed, the district court affirmed, and the debtor appealed to the Seventh Circuit. Continue reading

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Manufactured Homes: Real or Personal Property – Who Knows?

Paddock, LLC v. Bennett (In re Bennett), 917 F.3d 676 (8th Cir. 2019) –

A creditor holding a security interest in a manufactured home contended that its claim was secured only by real property that was the debtors’ principal residence. Consequently, it objected to a chapter 13 debtors’ plan on the grounds that it improperly modified the creditor’s claim. The bankruptcy court overruled the objection, the Bankruptcy Appellate Panel (BAP) affirmed, and the creditor appealed to the Eighth Circuit. Continue reading

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