Property Law Developments—Joseph William Singer

Litigation concerning subprime mortgages granted by Countrywide Financial Corp. (now owned by Bank of America) has been settled in Massachusetts. Attorney General Martha Coakley obtained agreement to lower the principal amount owed by borrowers whose properties are worth less than the outstanding debt (so-called “under water properties”) by as much as 30 percent. Some borrowers who lost their homes through foreclosure of such mortgages may get some compensation from a $2.4 million fund set up for that purpose. The agreement will provide about $18 million in mortgage help for Massachusetts homeowners and it  is part of a wider nationwide settlement that will provide about $3 billion to 45,000 homeowners across the nation. The settlement builds on a 2008 agreement between Bank of America and numerous state attorneys general to provide loan modifications for certain borrowers. read article

Another judge has refused to grant a foreclosure when  the bank could not prove that it validly acquired the mortgage by assignment from the original mortgagee. Deutsche Bank Nat. Trust Co. v. McRae, 894 N.Y.S.2d 720 (Sup. Ct. 2010). The court emphasized that foreclosure actions can only be brought by those who have title when the action is commenced and that mortgages can be assigned in two ways—by delivery of the note and mortgage by the assignor to the assignee with the intent to assign or by a written instrument of  assignment. The written assignment in this case was insufficient because it assigned the mortgage but not the note (the underlying contractual obligation). The plaintiff sought to introduce evidence of a note that was endorsed by the assignor with notice of assignment. However, the assignment was not dated and conflicted with the unsigned note attached to the plaintiff’s foreclosure  complaint, leading the judge to believe the endorsement had been made after the court’s order that the plaintiff prove assignment of the note. Because there was no proof of the assignment at the time the action was filed the foreclosure claim was dismissed.

Craigslist.org now is seeking to prevent discriminatory housing ads (including roommate ads) on its website by posting the following message before one is allowed to fill out a classified housing advertisement:

“Stating a discriminatory preference in a housing post is illegal, is prohibited on craigslist, and can be expensive:  you can be fined more than $10,000 for each discriminatory ad, plus damages in court, plus loss of license if you are a professional. Avoid phrases which could be interpreted as discriminating by race/color/origin (e.g. ‘hispanic area’), religion (e.g. ‘christian home’), age / familial status (e.g. ‘no kids’), disability, sexual orientation, or source of income. The words you choose can cost you – get the facts and avoid being prosecuted under fair housing law.”

Beginning March 4, 2010, same-sex couples may apply for a marriage license in Washington, D.C. and get married after the requisite waiting period. read article. The D.C. City Council passed the Religious Freedom and Civil Marriage Equality Amendment Act which allows same-sex marriage. See D. C. Act 18–248; 57 D. C. Reg. 27 (Jan. 1, 2010). In addition, the Attorney General of Maryland recently announced that Maryland would recognize same-sex marriages performed elsewhere since nothing in Maryland law precluded such recognition. On March 2, 2010, Chief Justice Roberts refused to issue a stay preventing the law from going into effect. Jackson v. District of Columbia Board of Elections and Ethics, No. 09A807, 559 U.S. — (Mar. 2, 2010).