Liam O'Connor

Liam O'Connor

Hopkins & Carley

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Latest Publications


U.S. Supreme Court Resolves Uncertainty Regarding Junior Mortgage Liens in Chapter 7 Proceedings

A recent U.S. Supreme Court case resolves uncertainty as to whether Bankruptcy Code Section 506(d) allows Chapter 7 Bankruptcy debtors to "strip off" (void) junior mortgage liens that are wholly underwater. That uncertainty...more

7/14/2015 - Bank of America v. Caulkett Bankruptcy Code Chapter 7 Consumer Bankruptcy Dewsnup Junior Liens Lien Stripping Mortgages SCOTUS Section 506

Sham Guaranty Defense Curbed by California Court

Last month in CADC/RAD Venture 2011-1 LLC v. Bradley, the California Court of Appeal ruled against the "sham guaranty" defense by guarantors who had formed the borrowing entity without being asked to do so by the lender. ...more

5/15/2015 - Appeals Finance Lenders Foreclosure Guarantors

Typo Disastrous for Lender

The United States Court of Appeals for the Seventh Circuit recently issued a harsh opinion for lenders in In re: David L. Duckworth. The case provides a startling example of the drastic consequences of failing to carefully...more

1/26/2015 - Appeals Chapter 7 Commercial Bankruptcy Commercial Loans Farms Lenders Loan Documentation Promissory Notes Secured Lenders Security Agreements

Full Credit Bid Causes Loss of Insurance Proceeds

A recent case serves as a reminder of one of many risks posed by making a full credit bid at a foreclosure sale: the lender may lose the right to recover insurance proceeds for pre-foreclosure damage to the foreclosed...more

11/26/2014 - Commercial General Liability Policies Foreclosure Full Credit Bid Property Damage Secured Lenders

Subordination Agreements with General Contractors are Enforceable

Lenders know that recording their construction deeds of trust after the commencement of construction is risky because of the possibility of losing priority to mechanic’s liens. A recent case sheds light on a strategy lenders...more

11/3/2014 - Construction Industry Construction Loans Deeds Finance Lenders General Contractors Mechanics Lien Subordination Agreement

Preserving The Right To Foreclose After Accepting A Deed In Lieu

When a lender seeks to foreclose under a deed of trust, often a borrower who does not have the resources or incentive to resist the foreclosure will offer the lender a deed in lieu of foreclosure. This can be an attractive...more

7/24/2014 - Deed of Trust Deed-in-Lieu of Foreclosure Foreclosure Junior Lenders Lenders Mergers Secured Lenders

"Legendary" Case Confirms Guarantor's Independent Liability

In a published and precedent establishing case, the California Court of Appeal recently confirmed a guarantor’s separate and independent liability to a lender even if the borrower’s own liability has been discharged or...more

4/24/2014 - Commercial Loans Debt Guarantors Lenders Liability Waivers

Guarantor's "Sham Guaranty" Defense Harder To Prove

A recent case has reaffirmed lenders’ ability to require personal guarantees from principals of borrowing entities. In California Bank & Trust v. Lawlor, a California appellate court considered the enforceability of...more

1/23/2014 - Affirmative Action Borrowers Fraud Guaranty Claims Lenders Personal Liability

Judicial Reference Provision in Loan Guaranty Held Enforceable

Many of the loan documents we draft or seek to enforce contain an alternative dispute resolution provision requiring that borrower or guarantor disputes be tried by a judicial referee appointed by the Superior Court. This...more

10/22/2013 - Guaranty Claims Judicial Reference Loans

Addressing Sale Proceeds In The Face Of Guaranty "Carve-Out" Provisions

Commercial loans to closely held business entities, such as an LLC or partnership, typically include guaranties by the entity’s principal. Sometimes, the guarantor demands a “carve-out” to expressly exempt one or more of the...more

9/19/2013 - Business Assets Carve Out Provisions Closely Held Businesses Commercial Loans Exemptions Lenders LLC Partnerships

Even If Done With Good Intentions, Damaging Property Can Lead to Post-Foreclosure Liability For Borrowers

A recent appellate court decision has expanded the potential recovery a lender may pursue against a defaulting borrower. In Fait v. New Faze Development Inc., the Third District Court of Appeal significantly expanded an...more

6/25/2013 - Bad Faith Borrowers Foreclosure Lenders Liability Property Damage

Lost Lien Priority Restored

A recent case provides a reminder about the importance of title insurance in making loans secured by real property. In JP Morgan Chase Bank, N.A. v. Banc of America Practice Solutions, Inc. (2012) 209 Cal.App.4th 855, JP...more

12/11/2012 - Bank of America JPMorgan Chase Liens Title Insurance Trust Deeds

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