Michigan Appeals Court To Stiffed Lenders: ‘One Action’ Rule Means What It Says – Only One Action At A Time In Cases Involving Foreclosure
Lexologyreports:
- [T]he Michigan Court of Appeals, Michigan’s intermediate appellate court, issued its opinion in Greenville Lafayette, LLC v. Elgin State Bank (Case No. 308450), which reversed a decision of the Montcalm County Circuit Court on the scope of Michigan’s “one action” rule applicable to mortgage foreclosure by advertisement proceedings, MCL 600.3204(1)(b).
- This statutory provision prohibits the commencement and continuation of foreclosure by advertisement proceedings when “an action or proceedings, at law” have been instituted “to recover the debt secured by the mortgage or any part of the mortgage.”
- If such an action or proceeding has been commenced and is pending, it must be discontinued before the foreclosure proceeding can be begun. Alternatively, if such an action has resulted in the entry of a money judgment on the mortgage debt, then the foreclosure proceeding may only be commenced if an execution on that judgment “has been returned unsatisfied, in whole or in part.” Id.
- The rationale for this rule is to prohibit harassment of the mortgagor by requiring it to defend two proceedings at once and to forbid a double recovery on the debt. See, e.g., Lee v. Clary, 38 Mich. 223, 227 (1878); Larzelere v. Starkweather, 38 Mich. 96 (1878).
Full report here…
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In the meantime, what goes around, comes around.
Ambac files $856 million RMBS insurance suit against
Bank of America and Merrill Lynch
http://www.msfraud.org/law/lounge/Ambac-v-BA-Merrill_complaint_4-12.pdf
In reading the line of defendants, up pops an old name from the end of the savings and
loan scandal. Franklin National.
BRYLLAW LITIGATION: Virginia homeowner wins about $35,000.00 in damages, costs, sanctions, and attorney fees against HSBC Mort. Corp. for HSBC’s failure to disclose the identity of the owner of the debt.
The court emphasized that this result “discourag[es] creditor-servicer, such as HSBC here, from attempting to avoid liability for disclosure violations through sale of the loan and refusal to respond to the borrower’s requests for the owner’s identity.”
http://bryllaw.blogspot.com/2012/04/bryllaw-litigation-homeowner-wins-35000.html