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Case Citations [1] (July 2018 through April 2019)

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                    PROPERTY 3D: MORTGAGES



                           CHAPTER 1. CREATION OF MORTGAGES

  § 1.1 The Mortgage Concept; No Personal Liability Required

  D.Mass.Bkrtcy.Ct.2018. Quot. in case cit. and quot. in disc.; com. quot. in case quot. in disc. Chapter 7
  trustee filed an action against debtor's parents, who were trustees of a revocable living trust they created,
  seeking to avoid a transfer from debtor to defendants and to recover fraudulently transferred property
  arising from a promissory note and mortgage that debtor executed in favor of the trust. This court
  granted in part defendants' motion to dismiss, finding that the mortgage debtor paid in exchange for
  obtaining title to the property was not a fraudulent transfer as to debtor's creditors, because debtor
  obtained property worth $419,000 in exchange for the execution of the $400,000 mortgage securing a
  previously unsecured $400,000 promissory note. The court determined that the transfer represented by
  the mortgage was supported by valuable consideration in the form of the deed from the trust to debtor,
  and the court cited Restatement Third of Property: Mortgages § 1.1 in noting that, generally, under
  Massachusetts law, a mortgage was a conveyance or retention of an interest in real property as a security
  for performance of an obligation. In re Luciani, 584 B.R. 449, 460.



      CHAPTER 4. RIGHTS AND DUTIES OF THE PARTIES PRIOR TO FORECLOSURE

  § 4.1 Mortgage Creates Security Interest Only

  D.D.C.2018. Subsec. (a) quot. in sup. Borrower and her husband filed an action pro se against lender
  and loan servicer that foreclosed on a deed of trust on their residential property and obtained court
  authorization for their eviction, alleging that the doctrine of adverse possession protected their rights in
  the property. This court granted defendants' motion to dismiss for failure to state a claim, holding that,
  although plaintiffs lived in the property for over 23 years, they could not satisfy the 15-year statutory
  time period for adverse possession, because defendants could not have asserted ownership of the
  property until approximately a year prior to this action, when the trial court approved the foreclosure.
  The court explained that, under Restatement Third of Property: Mortgages § 4.1, a mortgage created
  only a security interest in real estate and conferred no right to possession of the real estate on the lender.
  Asnake v. Deutsche Bank National Trust Company, 313 F.Supp.3d 84, 88.

  § 4.8 Effect of Foreclosure on Mortgagee's Right to Insurance and Eminent Domain Proceeds

  D.Nev.2018. Adopted in case quot. in disc. In an action to set aside a foreclosure sale of a residential
  property, this court noted that the Nevada Supreme Court had discussed but had not adopted
  Restatement Third of Property: Mortgages § 8.3, Comment b, which provided that a court was generally
  warranted in invalidating a foreclosure sale where the price was less than 20% of fair market value, but
  was usually not warranted in invalidating a sale that yielded in excess of that amount absent other
  foreclosure defects; thus, Nevada law continued to require a showing of fraud, unfairness, or oppression
  in addition to a grossly inadequate sale price in order to set aside a foreclosure sale. The court cited, by

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            For earlier citations, see the Appendices, Supplements, or Pocket Parts, if any, that correspond to the subject matter under examination.

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