February 15, 2011

Charlene Hicks, Senior Attorney, National Legal Research Group

In recent months, embattled homeowners striving to fend off mortgage foreclosures have increasingly turned to the courts for relief.  This has resulted in an emerging body of law involving the validity of the underlying loans.  Because virtually all mortgages are assigned by the original lender soon after execution, questions concerning the validity of the assignment often arise.  Thus, one particular avenue in which homeowners have enjoyed particular success in defending against foreclosure proceedings involves contesting the current noteholder's standing to maintain a foreclosure action.

This point is well illustrated in Wells Fargo Bank, N.A. v. Ford, No. A‑3627‑06T1, 2011 WL 250561 (N.J. Super. Ct. App. Div. Jan. 28, 2011), a case recently decided by the Superior Court of New Jersey, Appellate Division.  In that case, Sandra Ford executed a negotiable note on March 6, 2005 to secure repayment of $403,750 she had borrowed from Argent Mortgage Company and a mortgage on her New Jersey home, a transaction in connection with which Ford was alleging that Argent had engaged in fraudulent and predatory acts.

The Lawletter Vol 34 No 6, August 6, 2010

Alistair Edwards, Senior Attorney, National Legal Research Group

In Murray v. City of Lawrenceburg, 925 N.E.2d 728 (Ind. 2010), the Supreme Court of Indiana recently held, among other things, that land being used as part of a docking site for a private riverboat casino had been taken by the City of Lawrenceburg and the Lawrenceburg Conservancy District for a public purpose or use.  In Murray, the plaintiffs alleged that they were the owners of the land at issue, and they brought an action against the City and the Conservancy District to quiet title.  The plaintiffs further alleged that in 1996 a quitclaim deed was recorded whereby a railroad company had attempted to deed the land at issue to the City.  The court, opining for the first time that inverse condemnation was an exclusive remedy, held that the plaintiffs should have sued for inverse condemnation, not to quiet title—even though the City had a deed to the property and had never attempted to "take" the property.  Accordingly, the plaintiffs were subject to the six-year statute of limitations applicable to an inverse condemnation action, which statute had expired prior to the plaintiffs' filing suit.

Among other arguments presented to the court, the plaintiffs asserted that inverse condemnation was inapplicable because any alleged taking was not for a public use.  As alleged in the plaintiffs' complaint, the land at issue was part of a docking site for a riverboat casino operated by a private gaming company, which was leasing the land from the City.  However, the court nevertheless held that the land had been taken for a public use.  To support its conclusion, the court stated: