In the case of Domistyle, Inc., 14-41463 (5th Cir. Dec. 29, 2015), the United States Court of Appeal for the Fifth Circuit affirmed an order of the bankruptcy court requiring a secured creditor to reimburse the trustee for expenses paid to preserve real property subject to the creditor's lien until the debtor's eventual surrender of the property to the creditor. The surcharge was based on Section 506(c) of the Bankruptcy Code which provides a "narrow" and "extraordinary" exception to the general rule that the administrative expenses of the bankruptcy estate are to be satisfied by the ...
In Gorel v. Bank of New York Mellon, 5D13-3272 (Fla. 5th DCA May 8, 2015) Florida's Fifth District Court of Appeal offered relief to increasingly popular arguments using minor defects in paragraph 22 notices of default as a defense to foreclosure. It has become popular among the foreclosure defense bar to point to minor variances between the language used in notices of default and the express language of paragraph 22, and assert that because the notices do not strictly conform word for word with paragraph 22, that foreclosure should be denied. These arguments have had some measure of ...
In Payne v. Progressive Financial Services, Inc., No. 13-10381 (5th Cir. 2014), the United States Court of Appeals for the Fifth Circuit reversed and remanded a Texas district court's dismissal of the plaintiff's suit for lack of subject-matter jurisdiction on the ground that the defendant's unaccepted offer of judgment rendered the plaintiff's claims moot. Plaintiff Nicole Payne alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), the Texas Debt Collection Practices Act, and the Texas Deceptive Trade Practices Act in her suit against Defendant Progressive ...
In Richardson v. Wells Fargo, N.A., No. 13-10002 (5th Cir. 2014), the United States Court of Appeals for the Fifth Circuit held that motions for attorney's fees provided by contract are permissible in accordance with Fed. R. Civ. P. 54(d)(2). This rule provides that "a claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages." Plaintiff Pamela Richardson obtained a loan from Wells Fargo to refinance the mortgage on her property. Plaintiff secured the debt with a deed of ...
The U.S. Court of Appeals for the Fifth Circuit recently held in Reinagel v. Deutsche Bank National Trust Co., No. 12-50569, 2013 WL 3480207 (5th Cir. July 11, 2013), that facially valid assignments can only be challenged for want of authority by the defrauded assignor. In Reinagel, the plaintiffs/borrowers alleged that the "robo-signed" assignments of their note and deed of trust were invalid and prohibited the defendant's foreclosure. First, the Fifth Circuit found the plaintiffs had standing to challenge the validity of the assignments of the note and deed of trust to Deutsche ...