Justia Real Estate & Property Law Opinion Summaries

The Chapter 7 trustee sought to avoid a mortgage with respect to wife's interest in the property because the mortgage did not name or identify her in the body of the mortgage. The wife had signed the mortgage, and a rider that contained a provision for joint and several liability, but not the note. The bankruptcy court ruled in favor of the trustee. The Sixth Circuit reversed. Relying on 11 U.S.C. 544(a) and Kentucky property law, the court concluded that the identities of both borrowers was readily ascertainable from examination of the entire mortgage, which includes the rider.

The trustee in Chapter 7 proceedings sought to avoid the mortgage, recorded in 2006, asserting that the words "see EXHIBIT A," in the spot for the legal description on the signature page did not satisfy the statutory requirement found in Ky. Rev. Stat. 440.060(1). The Bankruptcy Court rejected the argument and the Sixth Circuit affirmed, holding that the practice of incorporating an exhibit containing the legal description is common and satisfies the statute.

The first plaintiffs alleged that Fidelity failed to provide a discount, required by its filed rates, when issuing title insurance to homeowners who had purchased a title insurance policy for the same property from any other insurer within the previous 10 years. The second plaintiff brought the same claims against First American. The district court denied their motion to certify a class. The Sixth Circuit affirmed. Although the claims involve small amounts, so that the plaintiffs are likely unable to recover except by class action, the plaintiffs did not establish that issues subject to generalized proof and applicable to the whole class predominate over issues subject to individualized proof. The need to establish entitlement to join the class and the need to prove individual damages are not fatal to class certification, but the Ohio insurance rate structure would necessitate individual inquiries on the issue of liability. The plaintiffs phrased their claims in a way that would require examination of individual policies and whether the company received the requisite documentation for the discount.

The owner of a mortgage company was sentenced to 96 months for fraud and money laundering. The Sixth Circuit affirmed, holding that the conviction was supported by substantial evidence. Evidence of a government witness's prior inconsistent statements that referred to a conviction more than 10 years prior was properly excluded; the trial judge gave the defense proper latitude to impeach the witness. The sentence was properly enhanced for attempting to obstruct the investigation, use of "sophisticated means," and acting as the organizer or leader.