Blockchain and Financial Services Blog

Showing 24 posts by Vincent E. Mauer.

Danger: “Unlimited” Guaranty Covers Theft Losses Caused By Another

Guarantor was the spouse of a business owner. Spouse’s business opened a deposit account and a disbursement account at Bank 1. Later, Bank1 extended to Spouse’s business a commercial revolving loan with a borrowing limit of $135,000; that loan provided overdraft protection by funding the disbursement account if the business’ account balance went below zero. To obtain the $135,000 loan, Spouse and Guarantor executed an unlimited commercial guaranty. [1] Bank1 and Spouse executed multiple extensions of both the $135,000 commercial revolving loan.

[1]   Guarantor was an officer of Spouse’s business but did not have an ownership interest in that business. Equal Credit Opportunity Act, 15 U.S. C. 1691 et seq., issues apparently were not implicated in the guarantees at issue. Read More ›

How to Lose a Default Judgment Motion: Seek the Wrong Relief Too Soon

Defendant is a mother who received the news all parents of teenagers everywhere desire and fear: Congratulations, your daughter is admitted to college; but given the costs, she will need a loan to attend. According to Plaintiff’s complaint: Read More ›

A Cautionary Tale: Original Mortgagee’s Modified Loan Prevails Over Second Secured Lender

An Ohio residential loan and mortgage were made and recorded in 2008. After default, a foreclosure case was started, but not completed – it was dismissed without prejudice. Read More ›

Forbearance Agreements With Any Relationship To Real Property

On March 4, 2014, the Ohio Supreme Court issued its decision in First Merit Bank v. Inks, 138 Ohio St.3d 384.  In this case, the court held that the statute of frauds prohibited both a claim and the assertion of a defense by guarantors who alleged an oral amendment of a written forbearance agreement.  That forbearance agreement came within the statute of frauds because in addition to settling the liability of the borrower and guarantors, it would have impacted the mortgage securing the debt – specifically by releasing that mortgage. Read More ›

COMPOUND INTEREST ON OHIO JUDGMENTS BASED ON LOAN DOCUMENTS

On the somewhat unusual occasions when your judgment debtor has assets, the question turns to how do I maximize my judgment and collect every penny legitimately owed to my client?  Here are some thoughts: Read More ›

Cognovit Judgments Are Obtained Before The Complaint Is Served On The Defendant

            It may seem obvious to creditors who use cognovit judgments that the Answer and Confession Of Judgment can be filed by the attorney acting pursuant to an appropriate Warrant Of Attorney in a loan document before the clerk of court effectuates service of process on the defendant.  Still, some defendants have tried to get relief from a cognovit judgment by asserting they were entitled to service of process under the rules of civil procedure before the judgment was taken.  Read More ›

Improperly Executed But Properly Recorded Mortgage Isn't A Lien

            The mortgage was not properly executed because the borrower / mortgagor’s signature was not notarized as required by Ohio Revised Code Section 5301.01.  The mortgage was appropriately recorded despite the deficiency.  With record notice of the current mortgage (and possibly actual notice too), a second lender advanced money to the same borrower and recorded a properly executed mortgage.  The latter mortgage was recorded about two years after the first, improperly executed, mortgage was recorded.  Read More ›

Lawyers Not Subject To Certain HUD Regulations Concerning Mortgage Originators

Among other things, the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (the “SAFE Act”) requires state-licensed Mortgage Loan Originators (MLOs) to pass a written qualified test which covers federal and state law, to complete pre-licensure education courses, and to take annual continuing education courses.  The SAFE Act also requires all MLOs provide fingerprints for submission to the FBI for a criminal background check and authorization for the authorities to obtain an independent credit report concerning those originators.  Regulations implementing the SAFE Act were recently promulgated by the Department of Housing and Urban Development (“HUD”).  Read More ›

Expanded Application of the Servicemembers Civil Relief Act ("SCRA")

Significant number of American citizens are actively serving our country including a larger than normal number of members of the National Guard and Reserves. Some of these “citizen soldiers” have businesses in civilian life, and the same is occasionally true of regular active duty service members. Those serving our country are protected from default judgments in civil actions by the Servicemembers Civil Relief Act, 50 App. U.S.C. Section 501, et seq. (“SCRA”). It is understandable that individuals, who are serving our country and perhaps unavailable to defend litigation, should not be subject to a default judgments.  Read More ›

Security Interests In Qualified Retirement Plans

Searching for collateral that might be used to collateralize loans to individuals, clients occasionally ask if an individual borrower may pledge his or her interest in an ERISA-qualified retirement plan, commonly known as, a 401(k), a Roth 401(k), a 403(b) or other similar type retirement plan, or the cousin of an IRA, a Roth IRA Read More ›

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Attorney Spotlight

William T. Repasky practices with the Litigation Department at Frost Brown Todd. He focuses on lending and commercial services; banking litigation and financial institutions.

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