Alternative Dispute Resolution (ADR) Residential Real Estate

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CFPB Field Hearing May Unveil New Rule on Arbitration Agreements

The CFPB is continuing its march towards a new rule governing the use of arbitration clauses in consumer lending contracts. On April 20, the Bureau announced its next step will be to conduct a field hearing in Albuquerque,...more

Fourth Circuit: Courts, Not Arbitrators, Decide If Arbitration Agreement Authorizes Class-Wide Arbitration

A unanimous panel of the Fourth Circuit has held Del Webb Communities, Inc. v. Carlson that the question whether an arbitration agreement authorizes class-wide arbitration is for the courts, not an arbitrator, to...more

Fourth Circuit Finds Availability Of Class Arbitration Is Question For Courts, Not Arbitrators

Joining the Sixth and Third Circuit Courts of Appeals, the Fourth Circuit this week held that “whether an arbitration clause permits class arbitration is a gateway question of arbitrability for the court.” Dell Web...more

And in this corner: Judicial referees as alternatives to juries in California

More than 10 years ago, California’s highest court held that pre-dispute contractual jury waivers were not enforceable. However, the Court directed contract parties to two safe havens from juries: arbitration and judicial...more

Examining Denver’s new construction defect reform ordinance

Construction defect reform is a hot-button issue in Colorado. This is especially true along the booming Front Range, where rapidly increasing population has driven the prices of renting and buying property a mile high....more

Financial Services Report, Spring 2016

Why another law firm newsletter? Over ten years ago, Will Stern answered that question in the first Editor’s Note of the first Financial Services Report. Some things have changed since then—we no longer print and mail paper...more

CFPB Releases Fact Sheet: Policy Priorities over the Next Two Years

On February 25, the CFPB released a fact sheet outlining its policy priorities over the next two years. The document lists the following nine near-term priority goals: (i) arbitration; (ii) consumer reporting; (iii) debt...more

For Whom the Bell Tolls - Only a Complete Litigation Stay Extends the Five Year Rule For Bringing a Case to Trial

On February 25, 2016 the Supreme Court of California in Gaines v. Fidelity National Title Insurance Company, et al. (Court of Appeal B244961, Superior Court Case BC361768), affirmed the lower courts’ holdings that a partial...more

CFPB’s Two-Year Policy Priorities

On Thursday, February 25, 2016, the CFPB held a Consumer Advisory Board meeting in which it outlined its forward-looking supervision and enforcement priorities. After the Board meeting, the CFPB published a summary of these...more

Fannie and Freddie Adopt IDR Policy for Repurchases

After years of litigation costing tens of millions of dollars, the Federal Housing Finance Agency has hit upon a way to expedite resolution of breach of representation and warranty claims that, if successful, could minimize...more

Orrick's Financial Industry Week in Review

Financial Industry Developments - FHFA, Fannie Mae and Freddie Mac Announce Independent Dispute Resolution Program - On February 2, the Federal Housing Finance Agency (the "FHFA") announced that Fannie Mae and...more

Fannie And Freddie – Newly Implemented Independent Dispute Resolution

On February 2, 2016, Freddie Mac and Fannie Mae took another step towards helping sellers of loans manage risk more effectively, and in turn, strengthen the home lending system. Through concurrently released...more

West Coast Real Estate Update: Feb. 2016 #1

Residential Communities: Proposed Amendment to Allow Owners' Attorneys at Association Board Meetings - In an attempt to further broaden when a member of a common interest development association can bring his or her...more

Construction Group News: Arbitrators' Award of Attorney's Fees Thrown Out Because the Parties' Agreement Did Not Provide for It

The Massachusetts Supreme Judicial Court recently voided an arbitration panel’s award of attorney’s fees because the terms of the parties’ arbitration agreement did not specifically provide that the prevailing party could be...more

Third Circuit Reaffirms High Burden To Establish Delegation Of Class Arbitrability Determination

Earlier this month, the Third Circuit Court of Appeals reaffirmed its holding that the availability of class arbitration constitutes a question of arbitrability to be decided by courts unless the arbitration agreement...more

Court Of Chancery Explains Arbitration Timelines

This decision explains the timelines for seeking to vacate an arbitration award. It illustrates that an arbitration proceeding has its own rules that the parties better understand or lose their rights....more

The More the Merrier: Court Rejects Waiver Argument, Enforces Arbitration Clause in Consumer Contract

A federal district court in Oklahoma recently rejected a defaulting borrower’s attempt to argue that her lender’s pursuit of foreclosure litigation waived the lender’s right to insist on arbitration of the borrower’s...more

Avoiding Gamesmanship in Appointing Appraisal Umpires

Appraisal has long been utilized as a tool for resolution of disputes over the amount of loss at issue in property insurance claims. Unfortunately, the appraisal process has devolved in recent years. What was once considered...more

CFPB Publishes Semi-Annual Rulemaking Agenda

Just in time for the holidays, the CFPB released its Fall 2015 rulemaking agenda on Friday, November 20. The agenda does not include any major surprises, but it does slightly revise the projected timeline for several highly...more

New York Commercial Division to Tighten Eligibility Requirements For Two Categories of Disputes

Parties and counsel involved in disputes arising out of domestic arbitrations or home improvement contracts soon will have to clear heightened eligibility requirements before being able to proceed in the Commercial Division...more

Washington Supreme Court Clarifies Mandatory Mediation Program Exemption – Holders Score a Washington Victory

The servicer community recently scored an important victory in an opinion issued by the en banc Washington Supreme Court. The decision — Brown v. Wash. State Dep’t. of Commerce, — clarifies the scope of the small lender...more

CFPB Singles Out Class Action Waivers for Elimination from Consumer Financial Arbitration Agreements

The Consumer Financial Protection Bureau (“CFPB”) made clear this week that, in its view, class action waivers should be on the chopping block in the agency’s upcoming rulemaking aimed at regulating the use of arbitration...more

Tennessee Supreme Court Holds That State Unconscionability Law Does Not Implicate Concepcion And Is Not Preempted By FAA

The Supreme Court of Tennessee reversed the lower courts’ rulings that a non-mutual arbitration provision in an installment contract on the sale of a manufactured home was unconscionable and unenforceable. In doing so,...more

Rhode Island General Assembly Clarifies Intent of Foreclosure Mediation Law

In what can only be perceived as a response to a recent Superior Court decision, the Rhode Island General Assembly amended the applicability of the Foreclosure Mediation Law, R.I. Gen. Laws § 34-27-3.2, for the third time in...more

Make the Most of Your Mediation: The Single-Family Construction Defect Case

How can you economically and effectively settle the single-family construction defect case? In a recent mediation involving a homeowner, contractor and 15 subs, the participants used the following practices, which resulted in...more

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