Insights

Supreme Court to Decide on Lien Stripping in Chapter 7

March 05, 2015

The Eleventh Circuit is the only Circuit which permits Chapter 7 debtors to strip wholly unsecured mortgage liens. All other circuits follow the Supreme Court's decision in Dewsnup v. Timm and do not allow it. The Supreme Court of the United States recently agreed to hear an appeal of two of the Eleventh Circuit's recent cases permitting lien stripping in Chapter 7 to resolve the circuit split of opinions....

It's the Politicians, Stupid

March 02, 2015

James Carville coined the phrase "it's the economy, stupid" during the 1992 presidential campaign. With this very powerful talking point Bill Clinton was able to defeat incumbent President George H.W. Bush, who had enjoyed a 90% approval rating after Operation Desert Storm. According to Gallup, President Obama enjoyed a 53% approval rating just after the 2012 Presidential Election. This reflected his highest approval rating since 2009. In 2012, things were looking very good for the returning incumbent President. The Health Care Reform Act was in full gear, the economy was showing signs of an impressive recovery, the unemployment numbers were dropping precipitously, and the Consumer Financial Protection Bureau (CFPB) was formed in the wake of the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act....

Pleading Requirements for Illinois Mortgage Foreclosure Complaints Altered

March 02, 2015

Illinois law requires a Grace Period Notice ("GPN") to be sent to the mortgagor(s) prior to commencing an action to foreclose a mortgage secured by residential real estate. The GPN must include the date the notice was mailed, be headed in bold 14-point type "GRACE PERIOD NOTICE" and include the Illinois Department of Financial and Professional Regulation's current consumer hotline number and website. The GPN must also include the telephone number, fax number and mailing address of the mortgagee....

Health Care Arbitration

January 22, 2015

In a recent wrongful death action claiming negligence by a nursing home, the 8th District Court of Appeals found that the trial court erred in staying the action and assigning the dispute to arbitration, reasoning that the decedent's mother had apparent authority to bind the decedent to a contract with an arbitration provision where, on appeal, the nursing home asserted that the decedent actually signed the agreement, essentially refuting its argument in the trial court. The case hinges on who actually signed the agreement, and if not the resident/party thereto, whether the person executing an agreement has legal authority to bind another to the agreement....

Using Unjust Enrichment in Healthcare Recovery

January 22, 2015

Generally, when an individual seeks admission to a healthcare facility, he or she will meet with the admissions staff and ultimately sign an admission agreement memorializing the parties' understanding of the rights and responsibilities of each during the stay. The admission agreement is an essential part of the process and expresses not only what is required of the respective parties, but also the consequences for when those obligations are not met. Thus, if and when it becomes necessary to institute legal proceedings to recover monies owed for treatment, care, services, supplies, etc. provided during the resident's stay, the admission agreement plays a significant part in that litigation. This is because the cause of action is based upon the breach of this contract, i.e. the failure to make payments, and the remedies for the breach are outlined therein....

Ohio Supreme Court Preserves the Status of Properties Purchased at Foreclosure Sales

December 11, 2014

Much has been written recently concerning the ability of a lender to bring a foreclosure action in Ohio. In 2012, the Ohio Supreme Court tackled the issue of standing and established a new standard for standing to bring a foreclosure action in its seminal decision of Federal Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. The Court ruled that a plaintiff in a foreclosure action is required to receive the assignment of the note and mortgage prior to the filing of the complaint, in order to invoke the jurisdiction of the common pleas court. Predictably, a litany of litigation and appellate decisions across the State followed this decision....

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