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Hawaii approves civil unions

February 24th, 2011 by Joseph William Singer

On February 23, 2011, Governor Neil Abercrombie signed a bill allowing same sex couples to enter civil unions with same rights and privileges under state law as married couples. read article

Posted in Marital property, Sexual orientation | Comments Off on Hawaii approves civil unions

Native Alaskan family awarded $4.9 million in damages for trespass

February 17th, 2011 by Joseph William Singer

A federal judge awarded the Oenga family of Barrow, Alaska $4.9 million dollars in damages against the United States because the Bureau of Indian Affairs (BIA) authorized BP oil company to cross the Oenga’s property to obtain access to 3 of BP’s oil fields when the family had only granted permission for access to one of those fields. Judge Awards Alaskan family $5M (U.S. News, Feb. 9, 2001)

While the case is, in some sense, an ordinary trespass case, it is complicated by the fact that the BIA has legally-enforceable fiduciary obligations to protect the property rights of Native Alaskans. The Oengas are Inupiats (Eskimos).

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Another court refuses to allow a bank to foreclose when it cannot produce authenticated proof of the assignments of the mortgage that give it a right to foreclose

February 11th, 2011 by Joseph William Singer

In the case of Wells Fargo Bank, N.A. v. Ford, 2011 N.J. Super. LEXIS 13 (N.J. Super. Ct. App. Div. 2011), the court remanded to allow the bank to provide proof that it had a right to foreclose through authenticated writings proving that it was assigned the mortgage and note by the prior holder of the mortgage and that it had the right to foreclose at the time the foreclosure action was brought.

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No taking of property without just compensation when property of an innocent owner is damaged from a lawful police search

February 11th, 2011 by Joseph William Singer

In conformity with the rule prevailing in most states, a New Jersey trial court held that an innocent owner whose property was damaged as a result of a lawful police search has no right to compensation under the takings clause. Simmons v. Loose, 2011 N.J. Super. LEXIS 16 (2011).

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Illinois approves civil unions for same sex couples

February 8th, 2011 by Joseph William Singer

Illinois joins the states like California and New Jersey that have authorized civil unions for same sex couples. read article Monica Davey,Civil Unions Advance in Illinois, N.Y. Times (Dec. 1, 2010).

Posted in Antidiscrimination law, Marital property, Sexual orientation | Comments Off on Illinois approves civil unions for same sex couples

A New Jersey trial judge allows foreclosure to proceed even though the bank cannot produce the mortgage note

February 3rd, 2011 by Joseph William Singer

A bank lost the mortgage note and thus could not pass it along when it assigned the mortgage to the Bank of America, preventing the Bank of America from producing the note to prove that it had the right to foreclose on the property. The loan in question had been securitized and transferred from the original mortgagee, Washington Mutual Bank, to LaSalle Bank (the holder of the securitized and pooled loans) which was then acquired by Bank of America. Because Bank of America could show evidence of the assignment (but not written proof of the original mortgage), the trial court allowed it to foreclose on the ground that the mortgagor/homeowner would otherwise be unjustly enriched. In effect, the court used equitable principles to create an exception to the applicable statute of frauds which requiring a writing for the mortgage to be enforceable via foreclosure. The case is Bank of America, N.A. v. Alvarado, (N. J. Ch. Ct. 2011). See Mary Pat Gallagher, Judge Finds Equity Allows Foreclosure to Proceed Though Mortgage Note Lost, 203 N.J. L.J. 1 (Jan 24, 2011).

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Invalid foreclosure cannot be cured by quiet title action

February 2nd, 2011 by Joseph William Singer

In the case of Bevilacqua v. Rodriguez, 2010 WL 3351481 (Mass. Land Ct. 2010), the court held that parties cannot cure an invalid foreclosure by a quiet title action.The bank that brought the foreclosure action had no proof at the time of the foreclosure that it owned the mortgage (the right to foreclose) because it had no written assignment from the prior mortgagee. For that reason, the foreclosure was invalid under the rule adopted by the Supreme Judicial Court of the Commonwealth of Massachusetts in U.S. Bank National Ass’n v. Ibañez, 458 Mass. 637 (2011). Ibañez held that foreclosures are invalid if the mortgagee bringing the foreclosure action cannot (at the time the foreclosure action) produce a written document proving that it was assigned the benefit of the mortgage from the prior mortgage holder. Thus when the bank sought a declaratory judgment that the foreclosure was valid, the court rejected its claim. That meant that a subsequent purchase of the property by a third party did not convey good title to the third party. Bevilacqua restates the Ibañez rule but goes further and holds that the third party cannot bring a quiet title action to seek a judgment that it has title to the property. Because it has a quitclaim deed from a seller who has no valid title, it cannot legitimately argue a basis for a quiet title action, leaving title with the party who held it prior to the invalid foreclosure.

Posted in Mortgages, Real estate transactions, Title issues | Comments Off on Invalid foreclosure cannot be cured by quiet title action