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Any litigator involved in real estate litigation needs to access up-to-date instructions on the major real estate topics. Jury Instructions in Real Estate Litigation, Second Edition, by Professor Ronald Eades, is a comprehensive collection of jury instructions related to issues most likely to arise in real estate litigation. It includes hundreds of instructions, each with supporting authority from all 50 states, and commentary regarding the use of each instruction. Some instructions also include collateral references, such as pertinent law review articles. Below is an excerpt around the elements of foreclosure, with a focus on supportive authority.
 Supportive Authority
ING Bank v. Ahn, 758 F. Supp. 2d 936, 943 (N.D. Cal. 2010) (elements of foreclosure action); White v. JP Morgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 81924, at *8 (M.D. Pa. July 27, 2011) (requirements of action of foreclosure); Perry v. Fannie Mae, 100 So. 3d 1090, 1099 (Ala. App. 2012) (discussing notice issue for foreclosure); Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. App. 2012) (plaintiff must have standing to sue); Beneficial Main Inc. v. Carter, 2011 ME 77, 25 A.3d 96, 99 n.2 (Me. 2011) (elements of foreclosure); In re Foreclosure of a Lien by Five Oaks Rec. Ass’n, 724 S.E.2d 98, 101 (N.C. App. 2012) (elements of foreclosure action); Bucci v. Lehman Bros. Bank, 68 A.3d 1069, 1086 (R.I. 2013) (discussing mortgage issue); Elk Ridge Lodge, Inc. v. Sonnett, 2011 WY 106, 254 P.3d 957, 960 (Wyo. 2011) (elements of action for foreclosure).
An action in foreclosure is an attempt to recover on a secured loan. The lender must prove the existence of a valid debt, a valid mortgage, and a demand that the debt is due.
Much of the law of mortgages is a matter of statute. It is important, therefore, to make sure that any jurisdictional, statutory requirements are met. It is important to note, for example, what damage may be recovered. In addition to the amount of the outstanding debt, the plaintiffs may also be able to recover costs of the sale and attorneys’ fees. ING Bank v. Ahn, 758 F. Supp. 2d 936, 943 (N.D. Cal. 2010) (reliance on state law for allowable recovery); Beneficial Main Inc. v. Carter, 2011 ME 77, 25 A.3d 96, 99 n.2 (Me. 2011) (detailed footnote on minimum requirements of foreclosure).
Although the issues in a foreclosure may be viewed as issues of fact for a jury, many foreclosure actions will be decided as a matter of summary judgment. It is common for the parties to agree that the elements necessary for foreclosure have been met. White v. JP Morgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 81924, at *8 (M.D. Pa. July 27, 2011) (summary judgment is permissible); Beneficial Main Inc. v. Carter, 2011 ME 77, 25 A.3d 96, 99 n.2 (Me. 2011) (summary judgment requirements); Elk Ridge Lodge, Inc. v. Sonnett, 2011 WY 106, 254 P.3d 957, 960 (Wyo. 2011) (burden of establishing prima facie case for summary judgment).
For the purchaser of property at a foreclosure sale, some care should be required. The doctrine of caveat emptor may still apply at such sales. Water Pollution Control Auth. v. Johnson, 130 Conn. App. 692, 694, 26 A.3d 87 (2011) (caveat emptor applicable at foreclosure sale).
It appears that an issue may arise after the foreclosure sale has occurred. If the person who had owned the property refuses to leave after the foreclosure, the new owner may be required to bring an action in ejectment. “[I]f the mortgage and foreclosure deed … are produced, as well as proof of both demand for and refusal to deliver possession, then all the necessary elements of ejectment are established.” Deutsche Bank Trust Co. Ams. v. Garst, 989 F. Supp. 2d 1194, 1207 (N.D. Ala. 2013). For further discussion of this issue, see Ex parte Rhodes, 144 So. 3d 316, 318 (Ala. 2013) (foreclosure and ejectment).
Page 17-3 (Rel. 9)
Owners facing foreclosure may, at times, seek to claim that the filing of the foreclosure is a slander of title. “ ‘The recorded foreclosure Notices do not affect Plaintiffs’ title, ownership, or possession in the property.’ ” Flores v. EMC Mortg. Co., 997 F. Supp. 2d 1088, 1123 (E.D. Cal. 2014).
Jury Instructions in Real Estate Litigation, Second Edition, is Professor Eades’ newest title. Visit the LexisNexis Store to review this publication.