Need to Foreclose on a Mortgage? Where Can You Bring Your Action?
Real Estate attorneys Keith Brandofino and David Mignardi co-authored an article in Pratt's Journal of Bankruptcy Law about newly enacted rules that have created both legal and procedural hurdles to a lender’s ability to exercise its contractual rights, including the commencement of a foreclosure action. Despite an abundance of case law establishing the citizenship of a commercial mortgage-backed securitized (CMBS) trust, some borrowers are taking a different approach to challenge the federal court’s diversity jurisdiction aimed at causing delay. The authors of this article discuss a recent case, Wilmington Trust, N.A. v. 115 Owner LLC et al., in which the borrower defendants filed a pre-answer motion to dismiss based on their allegations that the citizenship of the CMBS trust’s directing certificate holder (DCH), as well as the entity that controls the DCH, is determinative.
The authors also published a Holland & Knight alert on this topic.