Void or Voidable? That is the Unavoidable Question
Andrew Boylan, Chief Compliance Officer for McCarthy Holthus, explains in the Spring 2017 United Trustee Association Quarterly newsletter the industry favorable California Appellate decision in Mendoza holding that "defects in the securitization of loans can be ratified by the beneficiaries of the trusts established to hold the mortgage-backed securities and, as a result, the assignments are voidable.”
Boylan explains that if the assignment is voidable then only the parties to the agreement have the power to ratify or extinguish it. If a borrower is not a party to the assignment in question, they lack the necessary standing to challenge the foreclosure on the grounds of alleged irregularities pertaining to the assignment.
Chief Compliance Officer and Associate Attorney Andrew Boylan Featured Speaker at annual California MBA Legal Issues & Regulatory Compliance Conference
On December 5, 2016, Andrew Boylan, Chief Compliance Officer and Associate Attorney at McCarthy Holthus, LLP spoke on the Mortgage Servicing Panel at the annual California MBA Legal Issues & Regulatory Compliance Conference. He presented on CA SB 1150, the “Survivor Bill of Rights,” that went into effect on January 1, 2017, as well as the recent CFPB amendments dealing with successors-in-interest that are set to go into effect in April 2018.
Andrew Boylan can be found on page 51 of the Spring issue of California Mortgage Finance News.
Colorado Attorneys Shilliday and Cruseturner lead the way
Colorado Governor John Hickenlooper re-appointed Holly Shilliday, the Managing Attorney of the Colorado Office of McCarthy Holthus, to a second term on the Council of Advisors on Consumer Credit. The Council of Advisors on Consumer Credit advises and consults with the assistant attorney general concerning the attorney general‘s powers under the Consumer Credit Code. Jennifer Cruseturner, an Associate Attorney in the same office, has been selected as Secretary for the standing Local Rules Committee for the United States Bankruptcy Court, District of Colorado.
Shilliday and Cruseturner will both serve three year terms in their roles.
California's Homeowner Bill of Rights remedies to be narrowly construed
McCarthy Holthus, LLP Associate Attorney and Civil Litigation Manager Melissa Robbins Coutts explains that the CA Homeowner Bill of Rights provides no remedy for borrowers seeking to enjoin allegedly unauthorized foreclosures in her featured article in the Winter UTA Quarterly publication.
"...[F]or pre-foreclosure challenges, HBOR's provisions will be read narrowly to authorize only the relief explicitly set forth by the Legislature."
Congratulations to Kristin "Kris" Zilberstein for Industry Recognition in Leadership
McCarthy Holthus LLP Senior Associate Attorney Kristin Zilberstein is named in the ALFN ANGLE: Winter 2016 edition as one of the "16 Women Who Rocked 2016." Kristin is the co-chair of the ALFN Bankruptcy Practice Group.
On page 31, Kristin states "I do not see many women in high ranking positions in corporate America. I want to see that change. I want my daughters to see that women can be anything and do anything that they set their minds to."
Favorable Appellate Decisions interpreting Attorney Fee Provision and grounds for injunctive relief in CA Homeowner Bill of Rights
McCarthy Holthus LLP Associate Attorney Kathy Shakibi explains how two recent decisions clarify that attorney fees are not awarded upon the grant of a preliminary injunction, and that an injunction cannot be sought for an alleged violation of the "right to commence foreclosure."
The article was featured in the winter edition of the California Mortgage Finance News.
All AV Rated at Firm Headquarters!
100% of San Diego McCarthy Holthus, LLP Attorneys have earned an AV rating by Martindale-Hubbell® Peer Review Ratings™.
Congratulations to Joe McIntosh, Kristin McDonald, Nancy Lee, and Julie Corriveau for most recently achieving the highest rating!
Andrew Boylan awarded as UTA New Member of the Year
Andrew Boylan, Associate Attorney and Chief Compliance Officer for McCarthy Holthus, LLP, is named United Trustees Association New Member of the Year at the UTA’s annual meeting, held November 7, 2016 during the Association’s 41st Annual Education Conference.
Andrew Boylan joins the ranks of UTA award recipients Deborah Brignac (Veteran Member of the Year 2006) and Kathy Shakibi (New Member of the Year 2012), all current members of the firm.
Favorable outcome in long awaited 9th Circuit decision on FDCPA
McCarthy Holthus, LLP Partner Wendy Walter explains the Ho vs. ReconTrust Company, N.A. holding that Foreclosure Trustees are not debt collectors despite the CFPB's legal opinion in her latest article for the USFN.
Walter explains "[i]n coming to its conclusion, the majority in Ho analyzed the notices in the nonjudicial process and found that the act of issuing such notices doesn’t constitute debt collection as defined by the FDCPA." The Ninth circuit's holding on this issue differs from other circuits (including the Third, Fourth, Fifth, and Sixth) where it has been held a nonjudicial foreclosure trustee is a debt collector.
Ninth Circuit rules on bankruptcy stay in lockout case
McCarthy Holthus LLP Associate Attorney Kathy Shakibi explains in her USFN article the 9th Circuit ruling that continued physical possession does not amount to an “equitable possessory interest” when a judgment and writ of possession have issued in an eviction action, and the holdover foreclosed debtor files for bankruptcy prior to the lockout.
The sheriff lockout does not violate the automatic stay because continued physical possession does not confer on the debtor a protectable equitable possessory interest in the property. Eden Place, LLC v. Perl (In re Perl), 2016 U.S. App. Lexis 246 (9th Cir. Jan. 8, 2016).
Congratulations are in order!
McCarthy Holthus, LLP Partner Wendy Walter has been elected to the USFN Board of Directors for a three-year term beginning 11/1/2016. This is a great testament to Walter’s experience and leadership position in our industry.
The USFN is recognized by clients, Fannie Mae, Freddie Mac, and other key entities as a driver for change and progress in the real estate finance industry. By serving on the USFN Board, Walter will be in a great position to help this group push activities and initiatives that are beneficial to our clients and the industry as a whole.
USFN Award of Excellence 2016 Recipient for Washington
McCarthy Holthus, LLP earns the 2016 USFN Diamond Award of Excellence! The Award of Excellence is given annually to USFN Member firms who meet rigorous standards that evaluate professional activities, industry volunteerism, and community and charitable involvement by the firm.
Recipients are honored each year at USFN's Annual Member Education Retreat held in the late fall. USFN, founded in 1988, is the nation's oldest ad most prestigious trade association of law firms and trustee companies who focus on creditors' rights. The Award of Excellence program was initiated in 1993 to recognize and encourage Member firms to develop and maintain high standards of excellence in service to industry clients and to their community.
Are we out of the Woods yet?
McCarthy Holthus, LLP Partner Wendy Walter explains the 9th Circuit's decision that strict compliance is not required in the Oregon Trustee Deed Act in her featured article of the Fall UTA Quarterly.
The Woods decision was one of three decided by the 9th Circuit in the same day dismissing lawsuits asserting the strict compliance theory. Regardless, Walter anticipates that an appeal will be taken and the Oregon Supreme Court may be asked to issue the final opinion on this subject.
Washington Foreclosure Law update
McCarthy Holthus, LLP Partner Wendy Walter advocates for modernization of laws and asks in the September issue of NW Lawyer "Is our state ready for the next chapter in real estate finance?"
Walter addresses four main gaps in the Washington foreclosure law: "neighborhoods dealing with blight, successors-in-interest facing judicial foreclosure, borrowers wanting the process to be expedited, and lenders trying to originate new deals in an electronic age."
Key Foreclosure Provisions of the CFPB-Promulgated Changes to Servicing Rules
McCarthy Holthus, LLP Partner Wendy Walter explains the foreclosure-related provisions of the latest CFPB amendments to the mortgage servicing rules in advance of the effective dates for the new rules.
Walter explains that the relevant foreclosure-related rules are effective 12 months from the date they are published on the Federal Register; rules relating to successors in interest and periodic statements for borrowers in bankruptcy are effective 18 months from the date of publication in the Federal Register.
And that makes 29!
Congratulations to SIXTEEN attorneys for becoming AV rated by Martindale-Hubbell® Peer Review Ratings™ since this last summer. Jo-Ann Goldman, Melissa Coutts, Merdaud Jafarnia, Matt Learned, Rebecca Lang, Joe McIntosh, Seth Harris, Ashley Hennessee, Kelly Raftery, Jennifer Wong, Megan Boyd, Kris Zilberstein, JaVonne Phillips, Casey Pence, Tia Butler, and Rocky McDonald (QWA), join the growing list of McCarthy Holthus, LLP and affiliate Preeminent and Distinguished lawyers.
Katie Jo Keeling
Julie Molteni (QLS)
Rocky McDonald (QWA)
Yes, Gaps Matter
McCarthy Holthus, LLP Wendy Walter tackles the hot topic of gender wage gaps in the ALFN's Summer 2016 Angle publication focused on advocacy.
Wendy Walter is a member of ALFN's Women in Legal Leadership (WILL) and is a partner at McCarthy Holthus, LLP.
Proofs of Claim, the Statute of Limitations and the FDCPA
McCarthy Holthus, LLP Managing Partner Lance E. Olsen authors an article on these important and evolving topics for the NACTT Academy for Consumer Bankrupty Education Fall 2015 publication.
The article addresses the potential consequences of filing a claim for a debt that is time barred, as well as discusses potential options available to home loan servicers.
Post-Yvanova Landscape: Appellate Courts Chime In While Supreme Court Punts
McCarthy Holthus, LLP Attorney Kathy Shakibi explains the questions left in the wake of Yvanova in her front page article of the Summer UTA Quarterly.
"The Yvanova gaps are necessarily being filled by appellate opinions, forming a landscape of case law on challenges to authority to foreclose."
How To Lose The Homestead Exemption
McCarthy Holthus, LLP Attorney Seth Harris explains in the Featured Article of the Summer UTA Quarterly how the United States Bankruptcy Appellate Panel ("BAP") arrives at the right decision in Elliot v. Weill (In re Elliot) 544 B.R. 421 when holding that the homestead exemption could properly be objected to in specific circumstances of bad faith and fraud.
"The BAP is sending a clear message that justice will prevail."
"Ninth Circuit Rules: TILA's Notice Provision Is Not Retroactive"
McCarthy Holthus, LLP Attorney Kathy Shakibi's Featured Article in the Spring 2016 UTA Quarterly explains the recent favorable Ninth Circuit decision interpreting the 2009 TILA amendment requiring written notice to a borrower when a mortgage loan is sold or transferred.
"Kudos to the Ninth Circuit for its discussion of existing laws that provide answers for questions of “Who owns my loan? To whom should I make my payments? Who has the authority to modify my loan?”"
Vendor Management Strategies
In the winter edition of the ALFN ANGLE, Andrew Boylan, Chief Compliance Officer for McCarthy Holthus, LLP, lays out the federal regulatory guidance for vendor management.
His article, entitled "Your Vendor Management Strategies May Need Some Attention: PLEASE USE EXACT CHANGE" explains why it is important to keep your vendors "In sight, and on your mind."
McCarthy Holthus, LLP CCO asked to co-host industry compliance webinar
McCarthy Holthus, LLP's Chief Compliance Officer Andrew Boylan co-hosted a California Mortgage Bankers Association's webinar entitled "Regulatory Compliance in Servicing" on February 25, 2016.
Andrew is a member of the CMBA's Mortgage Quality and Compliance Committee. During the webinar, Mr. Boylan discussed UDAAP (Unfair, Deceptive, or Abusive Acts or Practices) and focused on how mortgage servicers can avoid violations.
The firm's compliance practice group sets the industry standard and can be of assistance to our clients on a national platform for federal compliance issues.
McCarthy Holthus, LLP partner Wendy Walter published in the Winter 2016 USFN Report
McCarthy Holthus, LLP partner Wendy Walter featured in the Winter 2016 USFN Report entitled Washington -- Two Important Judicial Decisions.
The article explains recent industry friendly judicial decisions in the state of Washington that help to clarify trustee requirements under the ambiguous deed of trust statutes.
McCarthy Holthus, LLP Joins the USFN - America's Mortgage Banking Attorneys®
McCarthy Holthus, LLP is now a member of the USFN- America's Mortgage Banking Attorneys® in the state of Washington. The firm is excited to join this prestigious network of Mortgage Banking law firms.
The firm is excited to join this prestigious network of Mortgage Banking law firms. More information about the USFN can be found at www.USFN.org.
Three McCarthy Holthus, LLP attorneys chosen as Panelists at ALFN ANSWERS Annual Conference
Andrew Boylan, Kristin Schuler-Hintz, and Kristin Zilberstein shared their knowledge with the attendees of the ALFN ANSWERS Annual Conference that took place this summer in Lake Tahoe.
Andrew Boylan discussed CFPB updates in the panel entitled "New Rules-More Changes," Kristin Schuler-Hintz spoke on the HOA Super Priority Lien Roundtable, and Kristin Zilberstein discussed the Official Form Ch. 13 Plan & Bankruptcy Rule Changes.
McCarthy Holthus, LLP leads the way in Legal Advocacy
Andrew Boylan, the firm's Chief Compliance Officer, discusses the importance of legal advocacy and the efforts of McCarthy Holthus.
The Red tape White & Blue of modern politicking
By: Andrew Boylan
Legal League Q2 2015 publication
Managing Partner, Matthew Podmenik, and Associate, Kelly M. Raftery, featured in Legal League Quarterly
"Does your Agent have your authority to mess up?"
Thirty Five Under 35
MReport Magazine Special Report 2015
McCarthy & Holthus Partner, Katie Jo Keeling makes Thirty Five Under 35 list.