My “Counsel’s Corner”
Andrew Boylan Interview
“Our firm is part of manydifferent groups where we
attend advocacy days, work
with lobbyists, and even meet
face-to-face with legislators
to discuss the industry. It’s
a chance to educate them on
what we do, what issues we see,
and to help prevent legislation
from passing that could have
an adverse impact.”
Untangling the Web of Foreclosure Complications
Article by Lance Olsen in the DS News Daily Dose
Under the new law, a county, city, or town may notify a mortgage servicer that a property has been determined to be abandoned, in mid-foreclosure, and a nuisance. Upon receipt of this notice, a mortgage servicer or its designee may enter the property. Entry on to the property will be only for the purposes of abating the identified nuisance, preserving property, or preventing waste, but the servicer may take steps to secure the property.
Bettering Mortgage Link By Link
Article Katie Jo Keeling wrote for the DS News March 2018
Unearthing the potential of blockchain technology to revolutionize the mortgage industry.
You have to look no further than the front page of the Wall Street Journal to learn about Bitcoin these days. Its exponential rise in price has captured the attention of both Wall Street and Main Street alike, but because of its price volatility, its questionable source of value, and the security breaches resulting in theft from exchanges, many people continue to view Bitcoin as a house of cards built on thin air headed for an inevitable collapse. If you dismiss Bitcoin as just noise, you’re overlooking the most important thing about Bitcoin—it utilizes blockchain technology, the most revolutionary technology that has entered the marketplace in decades.
UTA Mention of Our Firm and Lance Olsen's Legislative Efforts.
When One Bill Becomes the Solution for Four Issues
As of this writing, the Washington State Legislature is one vote away from resolving four long-standing issues in foreclosure and DOTA law: Resolution of the Jordan vs. NationStar case. No judicial process for homes with deceased borrowers. Fix to statutory language for owner/holder/actual holder. Process to file non-monetary interest in Washington state for trustees.
UTA members were instrumental in the writing of this legislation. Specifically, I’d like to thank Michelle Mierzwa with Wright, Finlay, & Zak, and Lance Olsen with McCarthy Holthus for their almost daily involvement in the work on this bill
Oregon: Proof of Standing Clarified in Appellate Ruling by John Thomas
Foreclosing Plaintiff's Standing: Proof Requirements
On February 28, 2018 the Oregon Court of Appeals issued an opinion reversing and remanding the trial court’s summary judgment decision in favor of the foreclosing plaintiff, on the basis that the loan servicer’s declaration in support of its motion for summary judgment did not establish that the plaintiff was the holder of the note at the time that the judicial foreclosure was initiated (as it contained inadmissible hearsay on that point). [U.S. Bank National Association, as Trustee for the Structured Asset Investment Loan Trust, 2005-10 v. McCoy, 290 Or. App. 525 (2018)].
FDCPA - Tenth Circuit Reviews By Holly Shilliday and Andrew Boylan
the Act's Applicability to Nonjudicial Foreclosure in Colorado
In a published opinion — and adding to the current split among the circuits — the Tenth Circuit Court of Appeals has ruled that the Fair Debt Collection Practices Act (FDCPA), set forth in 15 U.S.C. §§ 1692 – 1692p, does not apply to nonjudicial foreclosure proceedings in the state of Colorado. Obduskey v. Wells Fargo Bank, 2018 U.S. App. Lexis 1275 (10th Cir., Jan. 19, 2018). In a win for the industry, the court ultimately sided with the Bank (and these authors’ law firm McCarthy & Holthus) in ruling that the enforcement of a security interest, by way of a nonjudicial foreclosure proceeding, does not constitute debt collection under the FDCPA.
Congratulations to Kelly Raftery!
Kelly M. Raftery, Associate Attorney in the Bankruptcy Department, has accepted a position for a three year term on the Local Bankruptcy Rules Advisory Board for the United States Bankruptcy Court Southern District of California.
The Local Rules Committee is run by Chief Judge Laura S. Taylor and plays a key role in recommending needed changes to the court’s local rules and practice guidelines. The Board also assists the court to identify areas where improvements are needed and by acting as a sounding board for proposed changes in clerk’s office policies and procedures that affect the bar.
Oregon: 2017 Legislative Changes for the Upcoming Year
Associate Attorney(OR) Andreanna Smith's article was published in the USFN eUpdates.
The Oregon 2017 legislative session resulted in significant changes for the industry for the upcoming year.
Colorado Statute of Limitation Alert Regarding Consumer Home Loans
SOL Article by Holly Shiliday Published By CBA (Business Law Section)
Colorado consumers and creditors should be aware of how a withdrawn foreclosure can affect the running of the statute of limitation on a residential note and deed of trust.
A Book Review of Essentialism: The Disciplined Pursuit of Less
Article Katie Jo Keeling wrote for the ALFN WILLed Q2 2017 Publication.
The way of the Essentialist isn’t just about success, it’s’ about living a life of meaning and purpose. When we look back on our careers and our lives, would we rather see a long laundry list of “accomplishments” that don’t really matter or just a few major accomplishments that have real meaning and significance?”
Congratulations to Managing Partner Andrew Boylan who was recognized in the article from Michael Belote.
UTA Bill Signed By Governor
Thanks to UTA Board member Andrew Boylan for suggesting the clean-up and for drafting the language, simplifying what may have been one of the most confusing statutes in California.
How to Lose a Case in the California Court Appeal
This case highlights the importance of choosing competent appellate counsel to handle matters on appeal, as the requirements of appellate briefing can differ significantly from what may be acceptable in a trial court. If your briefs fail to comport with the necessary requirements, you risk losing your appeal before any true appellate review of the case has even begun.
The requirements of appellate briefing can differ significantly from what may be acceptable in a trial court.
Congratulations to Managing Partners Katie Jo Keeling and Wendy Walter!
McCarthy Holthus, LLP Managing Partners Katie Jo Keeling and Wendy Walter are among a short list of distinguished leaders who are being recognized for their leadership and impact on the mortgage/housing industry by the Five Star Institute in the September 2017 MReport magazine featuring Wonder Women of Housing.
The publication can be found in the link below, with our featured attorneys shown in the article.
Congratulations to Melissa Robbins Coutts!
Melissa Robbins Coutts, Associate Attorney of McCarthy Holthus, LLP was selected as part of the 4th Annual Junior Professional Executive Group: Picture the Future Awards and was honored at this year's American Legal Financial Network ("ALFN") conference that took place earlier this month in Austin.
Ms. Robbins Coutts was one of thirteen young professionals honored "who are making a noteworthy impact in their companies, communities, and the mortgage servicing industry." You can read more about her in the Article below.
Additionally, on page 15 of the below Link, Melissa Robbins Coutts co-authored the feature article published in the ALFN’s quarterly magazine along with co-author and Managing Partner for the Southwest, Matthew Podmenik. The article explains the rules around full credit bids.
Municipalities can bring suit against banks under the FHA
Jennifer K. Cruseturner, Associate Attorney of McCarthy Holthus, LLP explains the U.S. Supreme Court's recent ruling impacting our industry in an article published in the USFN's June 2017 e-Update. She explains how the Supreme Court arrived at the decision that the City of Miami could sue mortgage lenders for predatory lending practices under the Fair Housing Act.
On May 1, 2017, the U.S. Supreme Court decided (5-3) in Bank of America Corp. v. City of Miami, Florida, together with Wells Fargo & Co. v. City of Miami, Florida, that the City of Miami is an “aggrieved person” under the Fair Housing Act of 1968 (FHA or Act), and as such could sue mortgage lenders. Cruseturner explains that while the Supreme Court held that proximate cause under the FHA requires some direct relation between the injury asserted and the discriminatory conduct alleged, it declined to specifically set forth the precise boundaries of proximate cause under the FHA.
Firm Partners serve as CFPB task force chairs
On July 10, 2017, both the U.S. Foreclosure Network (USFN) and American Legal & Financial Network (ALFN) submitted comments to the Consumer Financial Protection Bureau (CFPB) regarding the existing mortgage servicing rules. Wendy Walter, McCarthy & Holthus, LLP partner, Pacific Northwest, chaired the task force for the USFN while Andrew Boylan, also a partner and the firm's chief compliance officer, did the same for the ALFN.
Both organizations will highlight the task forces' efforts at their conferences this month.
Strict Compliance with California's Homeowner Bills of Rights is Required
Partners Andrew Boylan and Katie Jo Keeling of McCarthy Holthus, LLP explain the impact of the California Court of Appeals case Berman v. HSBC Bank USA, N.A. in the UTA Quarterly Summer 2017 industry publication.
The Court held that the listing of a 15-day appeal period in a denial letter (instead of providing the required 30 days) amounted to a “material violation” of the California Homeowner’s Bill of Rights. This case reinforces the importance of reviewing notice templates and business processes at the state level to ensure full legal compliance. Notably, there are many provisions under the California and Nevada Homeowner’s Bill of Rights that go above and beyond the federal CFPB servicing regulations. One of these areas is the consumer/borrower right to appeal.
CO Partner Holly Shilliday AV Rated and selected to to chair Financial Institution Subsection for the Colorado Bar Association.
Holly Shilliday, Partner and Managing Attorney of the McCarthy Holthus, LLP Colorado office was selected as the Chair for the Financial Institutions Subsection of the Business Law Section of the Colorado Bar Association and also became rated AV Preeminent by Martindale Hubble.
Ms. Shilliday is also a member of the Executive Council of the Bar Association's Business Law Section. The Financial Institutions Subsection consists of banking and financial services attorneys, in-house counsel to financial institutions, and other lawyers with an interest in financial institutions. It promotes the organization's educational and professional objectives with respect to banks, savings and loan associations, credit unions, and other organizations offering financial services. It also addresses other matters of interest to members.
New Partners Named!
Andrew Boylan and Holly Shilliday were named Partners of the Firm on May 30, 2017. Ms. Shilliday has been the managing attorney in our Colorado office since its inception and Mr. Boylan has lead the firm's Compliance Department for many years. Both Andrew and Holly are published frequently and speak often on panels in our areas of practice, providing great leadership for our clients, staff, and industry.
Mr. Boylan can be reached for assistance on national compliance projects, and for any questions related to state and federal statutes and regulations. Ms. Shilliday can be reached for any Colorado related questions.
Void or Voidable? That is the Unavoidable Question
Andrew Boylan, Chief Compliance Officer for McCarthy Holthus, explains in the Spring 2017 United Trustee Association Quarterly newsletter the industry favorable California Appellate decision in Mendoza holding that "defects in the securitization of loans can be ratified by the beneficiaries of the trusts established to hold the mortgage-backed securities and, as a result, the assignments are voidable.”
Boylan explains that if the assignment is voidable then only the parties to the agreement have the power to ratify or extinguish it. If a borrower is not a party to the assignment in question, they lack the necessary standing to challenge the foreclosure on the grounds of alleged irregularities pertaining to the assignment.
Chief Compliance Officer and Associate Attorney Andrew Boylan Featured Speaker at annual California MBA Legal Issues & Regulatory Compliance Conference
On December 5, 2016, Andrew Boylan, Chief Compliance Officer and Associate Attorney at McCarthy Holthus, LLP spoke on the Mortgage Servicing Panel at the annual California MBA Legal Issues & Regulatory Compliance Conference. He presented on CA SB 1150, the “Survivor Bill of Rights,” that went into effect on January 1, 2017, as well as the recent CFPB amendments dealing with successors-in-interest that are set to go into effect in April 2018.
Andrew Boylan can be found on page 51 of the Spring issue of California Mortgage Finance News.
Colorado Attorneys Shilliday and Cruseturner lead the way
Colorado Governor John Hickenlooper re-appointed Holly Shilliday, the Managing Attorney of the Colorado Office of McCarthy Holthus, to a second term on the Council of Advisors on Consumer Credit. The Council of Advisors on Consumer Credit advises and consults with the assistant attorney general concerning the attorney general‘s powers under the Consumer Credit Code. Jennifer Cruseturner, an Associate Attorney in the same office, has been selected as Secretary for the standing Local Rules Committee for the United States Bankruptcy Court, District of Colorado.
Shilliday and Cruseturner will both serve three year terms in their roles.
California's Homeowner Bill of Rights remedies to be narrowly construed
McCarthy Holthus, LLP Associate Attorney and Civil Litigation Manager Melissa Robbins Coutts explains that the CA Homeowner Bill of Rights provides no remedy for borrowers seeking to enjoin allegedly unauthorized foreclosures in her featured article in the Winter UTA Quarterly publication.
"...[F]or pre-foreclosure challenges, HBOR's provisions will be read narrowly to authorize only the relief explicitly set forth by the Legislature."
Congratulations to Kristin "Kris" Zilberstein for Industry Recognition in Leadership
McCarthy Holthus LLP Senior Associate Attorney Kristin Zilberstein is named in the ALFN ANGLE: Winter 2016 edition as one of the "16 Women Who Rocked 2016." Kristin is the co-chair of the ALFN Bankruptcy Practice Group.
On page 31, Kristin states "I do not see many women in high ranking positions in corporate America. I want to see that change. I want my daughters to see that women can be anything and do anything that they set their minds to."
Favorable Appellate Decisions interpreting Attorney Fee Provision and grounds for injunctive relief in CA Homeowner Bill of Rights
McCarthy Holthus LLP Associate Attorney Kathy Shakibi explains how two recent decisions clarify that attorney fees are not awarded upon the grant of a preliminary injunction, and that an injunction cannot be sought for an alleged violation of the "right to commence foreclosure."
The article was featured in the winter edition of the California Mortgage Finance News.
All AV Rated at Firm Headquarters!
100% of San Diego McCarthy Holthus, LLP Attorneys have earned an AV rating by Martindale-Hubbell® Peer Review Ratings™.
Congratulations to Joe McIntosh, Kristin McDonald, Nancy Lee, and Julie Corriveau for most recently achieving the highest rating!
Andrew Boylan awarded as UTA New Member of the Year
Andrew Boylan, Associate Attorney and Chief Compliance Officer for McCarthy Holthus, LLP, is named United Trustees Association New Member of the Year at the UTA’s annual meeting, held November 7, 2016 during the Association’s 41st Annual Education Conference.
Andrew Boylan joins the ranks of UTA award recipients Deborah Brignac (Veteran Member of the Year 2006) and Kathy Shakibi (New Member of the Year 2012), all current members of the firm.
Favorable outcome in long awaited 9th Circuit decision on FDCPA
McCarthy Holthus, LLP Partner Wendy Walter explains the Ho vs. ReconTrust Company, N.A. holding that Foreclosure Trustees are not debt collectors despite the CFPB's legal opinion in her latest article for the USFN.
Walter explains "[i]n coming to its conclusion, the majority in Ho analyzed the notices in the nonjudicial process and found that the act of issuing such notices doesn’t constitute debt collection as defined by the FDCPA." The Ninth circuit's holding on this issue differs from other circuits (including the Third, Fourth, Fifth, and Sixth) where it has been held a nonjudicial foreclosure trustee is a debt collector.
Ninth Circuit rules on bankruptcy stay in lockout case
McCarthy Holthus LLP Associate Attorney Kathy Shakibi explains in her USFN article the 9th Circuit ruling that continued physical possession does not amount to an “equitable possessory interest” when a judgment and writ of possession have issued in an eviction action, and the holdover foreclosed debtor files for bankruptcy prior to the lockout.
The sheriff lockout does not violate the automatic stay because continued physical possession does not confer on the debtor a protectable equitable possessory interest in the property. Eden Place, LLC v. Perl (In re Perl), 2016 U.S. App. Lexis 246 (9th Cir. Jan. 8, 2016).
Congratulations are in order!
McCarthy Holthus, LLP Partner Wendy Walter has been elected to the USFN Board of Directors for a three-year term beginning 11/1/2016. This is a great testament to Walter’s experience and leadership position in our industry.
The USFN is recognized by clients, Fannie Mae, Freddie Mac, and other key entities as a driver for change and progress in the real estate finance industry. By serving on the USFN Board, Walter will be in a great position to help this group push activities and initiatives that are beneficial to our clients and the industry as a whole.
USFN Award of Excellence 2016 Recipient for Washington
McCarthy Holthus, LLP earns the 2016 USFN Diamond Award of Excellence! The Award of Excellence is given annually to USFN Member firms who meet rigorous standards that evaluate professional activities, industry volunteerism, and community and charitable involvement by the firm.
Recipients are honored each year at USFN's Annual Member Education Retreat held in the late fall. USFN, founded in 1988, is the nation's oldest ad most prestigious trade association of law firms and trustee companies who focus on creditors' rights. The Award of Excellence program was initiated in 1993 to recognize and encourage Member firms to develop and maintain high standards of excellence in service to industry clients and to their community.
Are we out of the Woods yet?
McCarthy Holthus, LLP Partner Wendy Walter explains the 9th Circuit's decision that strict compliance is not required in the Oregon Trustee Deed Act in her featured article of the Fall UTA Quarterly.
The Woods decision was one of three decided by the 9th Circuit in the same day dismissing lawsuits asserting the strict compliance theory. Regardless, Walter anticipates that an appeal will be taken and the Oregon Supreme Court may be asked to issue the final opinion on this subject.
Washington Foreclosure Law update
McCarthy Holthus, LLP Partner Wendy Walter advocates for modernization of laws and asks in the September issue of NW Lawyer "Is our state ready for the next chapter in real estate finance?"
Walter addresses four main gaps in the Washington foreclosure law: "neighborhoods dealing with blight, successors-in-interest facing judicial foreclosure, borrowers wanting the process to be expedited, and lenders trying to originate new deals in an electronic age."
Key Foreclosure Provisions of the CFPB-Promulgated Changes to Servicing Rules
McCarthy Holthus, LLP Partner Wendy Walter explains the foreclosure-related provisions of the latest CFPB amendments to the mortgage servicing rules in advance of the effective dates for the new rules.
Walter explains that the relevant foreclosure-related rules are effective 12 months from the date they are published on the Federal Register; rules relating to successors in interest and periodic statements for borrowers in bankruptcy are effective 18 months from the date of publication in the Federal Register.
And that makes 29!
Congratulations to SIXTEEN attorneys for becoming AV rated by Martindale-Hubbell® Peer Review Ratings™ since this last summer. Jo-Ann Goldman, Melissa Coutts, Merdaud Jafarnia, Matt Learned, Rebecca Lang, Joe McIntosh, Seth Harris, Ashley Hennessee, Kelly Raftery, Jennifer Wong, Megan Boyd, Kris Zilberstein, JaVonne Phillips, Casey Pence, Tia Butler, and Rocky McDonald (QWA), join the growing list of McCarthy Holthus, LLP and affiliate Preeminent and Distinguished lawyers.
Katie Jo Keeling
Julie Molteni (QLS)
Rocky McDonald (QWA)
Yes, Gaps Matter
McCarthy Holthus, LLP Wendy Walter tackles the hot topic of gender wage gaps in the ALFN's Summer 2016 Angle publication focused on advocacy.
Wendy Walter is a member of ALFN's Women in Legal Leadership (WILL) and is a partner at McCarthy Holthus, LLP.
Proofs of Claim, the Statute of Limitations and the FDCPA
McCarthy Holthus, LLP Managing Partner Lance E. Olsen authors an article on these important and evolving topics for the NACTT Academy for Consumer Bankrupty Education Fall 2015 publication.
The article addresses the potential consequences of filing a claim for a debt that is time barred, as well as discusses potential options available to home loan servicers.
Post-Yvanova Landscape: Appellate Courts Chime In While Supreme Court Punts
McCarthy Holthus, LLP Attorney Kathy Shakibi explains the questions left in the wake of Yvanova in her front page article of the Summer UTA Quarterly.
"The Yvanova gaps are necessarily being filled by appellate opinions, forming a landscape of case law on challenges to authority to foreclose."
How To Lose The Homestead Exemption
McCarthy Holthus, LLP Attorney Seth Harris explains in the Featured Article of the Summer UTA Quarterly how the United States Bankruptcy Appellate Panel ("BAP") arrives at the right decision in Elliot v. Weill (In re Elliot) 544 B.R. 421 when holding that the homestead exemption could properly be objected to in specific circumstances of bad faith and fraud.
"The BAP is sending a clear message that justice will prevail."
"Ninth Circuit Rules: TILA's Notice Provision Is Not Retroactive"
McCarthy Holthus, LLP Attorney Kathy Shakibi's Featured Article in the Spring 2016 UTA Quarterly explains the recent favorable Ninth Circuit decision interpreting the 2009 TILA amendment requiring written notice to a borrower when a mortgage loan is sold or transferred.
"Kudos to the Ninth Circuit for its discussion of existing laws that provide answers for questions of “Who owns my loan? To whom should I make my payments? Who has the authority to modify my loan?”"
Vendor Management Strategies
In the winter edition of the ALFN ANGLE, Andrew Boylan, Chief Compliance Officer for McCarthy Holthus, LLP, lays out the federal regulatory guidance for vendor management.
His article, entitled "Your Vendor Management Strategies May Need Some Attention: PLEASE USE EXACT CHANGE" explains why it is important to keep your vendors "In sight, and on your mind."
McCarthy Holthus, LLP CCO asked to co-host industry compliance webinar
McCarthy Holthus, LLP's Chief Compliance Officer Andrew Boylan co-hosted a California Mortgage Bankers Association's webinar entitled "Regulatory Compliance in Servicing" on February 25, 2016.
Andrew is a member of the CMBA's Mortgage Quality and Compliance Committee. During the webinar, Mr. Boylan discussed UDAAP (Unfair, Deceptive, or Abusive Acts or Practices) and focused on how mortgage servicers can avoid violations.
The firm's compliance practice group sets the industry standard and can be of assistance to our clients on a national platform for federal compliance issues.
McCarthy Holthus, LLP partner Wendy Walter published in the Winter 2016 USFN Report
McCarthy Holthus, LLP partner Wendy Walter featured in the Winter 2016 USFN Report entitled Washington -- Two Important Judicial Decisions.
The article explains recent industry friendly judicial decisions in the state of Washington that help to clarify trustee requirements under the ambiguous deed of trust statutes.
McCarthy Holthus, LLP Joins the USFN - America's Mortgage Banking Attorneys®
McCarthy Holthus, LLP is now a member of the USFN- America's Mortgage Banking Attorneys® in the state of Washington. The firm is excited to join this prestigious network of Mortgage Banking law firms.
The firm is excited to join this prestigious network of Mortgage Banking law firms. More information about the USFN can be found at www.USFN.org.
Three McCarthy Holthus, LLP attorneys chosen as Panelists at ALFN ANSWERS Annual Conference
Andrew Boylan, Kristin Schuler-Hintz, and Kristin Zilberstein shared their knowledge with the attendees of the ALFN ANSWERS Annual Conference that took place this summer in Lake Tahoe.
Andrew Boylan discussed CFPB updates in the panel entitled "New Rules-More Changes," Kristin Schuler-Hintz spoke on the HOA Super Priority Lien Roundtable, and Kristin Zilberstein discussed the Official Form Ch. 13 Plan & Bankruptcy Rule Changes.
McCarthy Holthus, LLP leads the way in Legal Advocacy
Andrew Boylan, the firm's Chief Compliance Officer, discusses the importance of legal advocacy and the efforts of McCarthy Holthus.
The Red tape White & Blue of modern politicking
By: Andrew Boylan
Legal League Q2 2015 publication
Managing Partner, Matthew Podmenik, and Associate, Kelly M. Raftery, featured in Legal League Quarterly
"Does your Agent have your authority to mess up?"
Thirty Five Under 35
MReport Magazine Special Report 2015
McCarthy & Holthus Partner, Katie Jo Keeling makes Thirty Five Under 35 list.