Kevin Brodehl

Kevin Brodehl

Wendel, Rosen, Black & Dean LLP

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California Supreme Court Clarifies Anti-Deficiency Protection after Short Sales Involving Purchase Money Loans

The California Supreme Court has published its much anticipated decision clarifying the scope of anti-deficiency protection under Code of Civil Procedure section 580b after short sales involving purchase money loans in Coker...more

2/1/2016 - Anti-Deficiency Provisions CA Supreme Court Declaratory Rulings JPMorgan Chase Purchase Money Loans Short Sales

Rescinding a Foreclosure Sale (or Any Other Real Estate Deal) — Act Quickly, or Lose the Remedy

In a prior post, Respect the Remedy of Rescission in Real Estate Disputes, I highlighted the often under-appreciated remedy of rescission.  With rescission, both parties are restored to their pre-contract positions and issues...more

1/13/2016 - Equitable Relief Foreclosure Investment Funds Mortgage Lenders Rescission

Money and Dirt: Reviewing 2015; Previewing 2016

We’ll end 2015 with a quick look back at some of the important developments in California real estate and secured lending law covered in this blog, and a look forward to issues that will get attention in 2016....more

12/30/2015 - Bank Guarantees Cal Code of Civil Procedure Commercial Leases Condemnation Crowdfunding Dual Tracking Restrictions Forbearance Agreements Foreclosure JOBS Act Mortgage Lenders Rescission

Draft Your Purchase and Sale Agreements Carefully — Integration and Indemnity Clauses are Not Simple “Boilerplate”

Almost all real estate purchase and sale agreements contain provisions relating to integration and indemnity. In the “boilerplate” worldview, these provisions are standard, generic, and basically all the same —...more

12/14/2015 - Boilerplate Language Indemnity Agreements Purchase Agreement Real Estate Market

Co-debtors’ Obligations May be Treated Differently in Bankruptcy

Imagine the following common scenario: A lender makes a commercial loan and the note is signed by two borrower entities, each of whom provides separate real property collateral as security for the loan. The borrowers...more

11/30/2015 - Chapter 11 Commercial Bankruptcy Commercial Loans Debtors Secured Debt

Subdivision by Condemnation?

Does a condemnation proceeding resulting in the physical separation of property into separate parts accomplish a “division” of property within the meaning of California’s Subdivision Map Act?...more

11/20/2015 - Condemnation Real Estate Development Subdivision Subdivision Map Act Williamson Act

The California Supreme Court Will Hear Oral Argument in Coker v. JP Morgan Chase Bank on December 2, 2015

In my last post, I mentioned that the California Supreme Court would soon be deciding an important case — Coker v. JP Morgan Chase Bank — involving an anti-deficiency based challenge to a short sale....more

11/2/2015 - Anti-Deficiency Provisions CA Supreme Court JPMorgan Chase Short Sales

Implied Dedication of Private Property to the Public: the Law is Unsettled

Let’s say you own private property including a roadway that connects to public streets on either end. The public has, for a couple of decades, used your private roadway for vehicular ingress and egress to and from the public...more

10/1/2015 - Civil Code Ingress/Egress Private Property Public Use

Judicial Foreclosure: Things That Can Go Sideways During The Redemption Period

Judicial foreclosure is uncommon in California. In most cases, lenders will pursue nonjudicial foreclosure (aka “trustee’s sales”), which are simple, quick, and efficient. But when a lender is dead-set on recovering a...more

9/21/2015 - Foreclosure Judicial Foreclosure Process Mortgage Lenders Non-Judicial Foreclosures Property Owners Rental Property Residential Leases Right of Redemption Trustee Sales

Trade Secrets Case Against Zillow Gains Steam

This is a short update to a previous post, Zillow Case Shows Danger of Unprotected Trade Secrets During Business Negotiations, posted on May 8, 2015. In that post, we described a trade secrets lawsuit filed against...more

9/10/2015 - Amended Complaints Breach of Contract Employment Contract Misappropriation Non-Disclosure Agreement Popular Trade Secrets Unfair Competition Zillow

Is a “Receiver’s Sale” a Foreclosure Sale?

Earlier this year, the Nevada Supreme Court held in U.S. Bank Nat’l Assn. v. Palmilla Dev. Co. that under Nevada law, a “receiver’s sale” of real property securing a loan qualifies as a judicial foreclosure sale, and...more

9/1/2015 - Court-Appointed Receivers Deed of Trust Foreclosure Judicial Foreclosure Process Mortgage Lenders Mortgages NV Supreme Court Real Estate Transfers Receivership Right of Redemption Secured Debt

Mind Your Real Estate Partnership Agreement Even In Bad Times (or be prepared to pay “reliance damages”)

Most sophisticated real estate investors are wise enough to know that they should abide by the terms of their investment entity’s governing agreement — the partnership agreement or LLC operating agreement. When times are...more

8/14/2015 - Partnership Agreements Partnerships Real Estate Investments

Respect the Remedy of Rescission in Real Estate Disputes

Claims seeking damages for broken real estate deals may be more common, but the remedy of rescission often provides the most bang for the buck. In a claim for damages due to breach of contract, the plaintiff affirms...more

7/31/2015 - Breach of Contract Construction Project Homeowners' Association Negligent Misrepresentation Real Estate Transactions Rescission Sewer Systems Young Lawyers

Lenders Face Attorney Fee Liability for Preliminary Injunction Stopping “Dual Tracking”

Cases featuring “dual tracking” claims under California’s Homeowner Bill of Rights seem to be all the rage these days. My last post, Tender Not Required for a “Dual Tracking” Claim, highlighted a recent Court of Appeal...more

7/13/2015 - Appeals Attorney's Fees Dual Tracking Restrictions Homeowner Bill of Rights Loan Modifications Mortgage Lenders Mortgages PNC Preliminary Injunctions

U.S. Supreme Court Holds Patent Holders Can’t Charge Royalties After Patent Expires

In a decision issued June 22, 2015 — Kimble v. Marvel Entertainment, LLC — the United States Supreme Court reaffirmed and declined to overrule long-standing precedent holding that a patent holder cannot charge royalties for...more

7/9/2015 - Brulotte Contract Term IP License Kimble v Marvel Enterprises Patent Royalties Patents Royalties SCOTUS Stare Decisis

Tender Not Required for a “Dual Tracking” Claim

Many claims based on flawed foreclosure sales never get out of the starting gates because the borrower fails to allege a pre-lawsuit “tender” of all amounts due on the loan....more

7/2/2015 - Default Dual Track Process Dual Tracking Restrictions Foreclosure HAMP Loan Modifications Mortgage Lenders

A Notice of Default Does Not “Disturb Possession”

An action to quiet title in real property can be governed by various statutes of limitation, depending on what theory underlies the claim. Possibilities include the five-year limitations period for adverse possession, the...more

6/15/2015 - Action to Quiet Title Commercial Property Owners Deed of Trust Lenders Notice of Default Promissory Notes Real Estate Market

Forbearance Agreements Must Be In Writing

Many plaintiffs in wrongful foreclosure lawsuits attempt to rely, at least in part, on what the lender’s representative “told them” over the phone or in person. But a recent decision by the California Court of Appeal...more

5/27/2015 - Forbearance Agreements Foreclosure Mortgage Lenders Promissory Estoppel

Can a Foreclosure be “Wrongful” if the Debtor is Underwater?

In most successful “wrongful foreclosure” cases (challenging an already-completed trustee’s sale), the debtor’s most obvious source of damages is the lost equity in the wrongfully sold security property....more

5/15/2015 - Deutsche Bank Foreclosure Loan Modifications Loan Servicer Mortgage Lenders Mortgages Underwater Homeowners Wrongful Foreclosures

Zillow Case Shows Danger of Unprotected Trade Secrets During Business Negotiations

As I mentioned in a prior post on real estate investment vehicles’ use of intellectual property, the real estate industry is not immune from legal disputes arising from that “other” type of property: intellectual property –...more

5/8/2015 - Business Litigation Dismissals Misappropriation Trade Secrets Zillow

Sham Guaranties Are Hard To Come By

In prior posts I highlighted the difficult position occupied by guarantors of real estate secured loans. In short, while California law extends very strong anti-deficiency protections to borrowers, those same protections can...more

4/25/2015 - Commercial Real Estate Market Deficiency Judgments Foreclosure Guarantors Internal Revenue Code (IRC) Section 1031 Exchange

Junior Lienholders: Know When To Admit Defeat

As any real estate lender or investor can testify, holding a junior lien on real estate security can be perilous. Sure, the yields are higher (and in this low interest rate environment, the “search for yield” is a persistent...more

3/18/2015 - Foreclosure JPMorgan Chase Junior Lenders Mortgages

Commercial Lease “Co-Tenancy” Clauses: Unconscionable, Penalty, or Enforceable?

When a court of appeal announces that it is tackling a new commercial lease issue for the first time ever in a published decision, it’s wise to pay attention....more

3/9/2015

Alterations Don’t Always Render a Deed Void (or How NOT to do Foreclosure Investing)

Most real estate investors assume that when a deed is altered by someone other than the grantor, without the grantor’s knowledge or consent, before it is recorded, then the deed is void and conveys no title, even as to bona...more

2/25/2015 - Bona Fide Purchaser Deed of Trust Deeds Foreclosure LLC Real Estate Investments

When a Construction Lender Steps into the Shoes of the Developer, the Door is Open for Claims by the General Contractor

Thank you to my partner Garret Murai for giving me the opportunity to post again on his excellent California Construction Law Blog. I am the author/editor of the Money and Dirt Blog, where I focus on issues relating to...more

2/11/2015 - Construction Contracts Construction Industry Construction Loans Contractors Lenders Real Estate Development

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