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Federal Courts Refuse to Enforce Waiver of Subrogation Clauses in Certain Residential Situations

In two recent decisions, federal courts sitting in New Jersey and Pennsylvania refused to dismiss subrogation claims filed by the insurers of a homeowner and lessees of apartments who suffered damages paid by their carriers....more

When it Rains it Floods: California Rainstorms and Flood Insurance

Until very recently, the scarcity of water and the decline in oil prices in California prompted the joke that oil was being used as fracking fluid to get water out of the ground. In the last week, however, so much rain has...more

Depreciation of Labor Costs Class Action: Nebraska Supreme Court Rules In Favor of Insurer

I’ve regularly followed on my blog key developments in the numerous class actions against the insurance industry involving the application of depreciation to the labor cost component of estimated replacement cost value in...more

Recent California Court of Appeal Decision Invalidates Jury Trial Waiver Made Under New York Law

A recent California Court of Appeal decision may have a major impact on the enforceability of jury trial waivers in loan agreements and other documents governed by New York law. In Rincon EV Realty LLC v. CP III Rincon...more

So you think you can avoid California’s anti-jury waiver?

The California Court of Appeal for the First Appellate District in San Francisco recently held that commercial borrowers are entitled to a trial by jury even though they signed loan documents that contained a jury waiver...more

I Have a Judgment, Now What? Priority of Judgments

Litigation can often be long and tiresome. Unfortunately, a successful verdict does not always lead to the desired outcome – the defendant paying up. Previous parts of this series addressed other aspects of collecting and...more

Michigan Tax News - January 2017

Michigan’s 2017 property tax assessment notices are in the mail. Should you appeal? Local assessors are in the process of sending annual notices of real and personal property tax assessments to property owners/taxpayers,...more

Court of Appeals Grants Leave to Appeal in Partnership Dissolution Case

On January 10, 2016, the New York Court of Appeals decided to hear a case that has significant consequence in the field of partnership dissolution. The case, Congel v. Malfitano,[1] concerns the allegedly wrongful...more

Curing Default in Chapter 11 Bankruptcy May Require Debtors to Pay Default Interest to Secured Creditors.

The Ninth Circuit Court of Appeals recently took up the issue of a Chapter 11 Debtor’s requirements to cure a loan default through its Chapter 11 plan. The result was a ruling that overturned previous law that entitled...more

Second Circuit Finds Special Servicer's Repurchase Claim Barred by Statute of Limitations, POLSINELLI'S Loan Originator Client...

The Second Circuit recently REVERSED a S.D.N.Y decision granting summary judgment in favor of a CMBS Trust whose Special Servicer sued POLSINELLI'S commercial loan Originator client seeking repurchase of a loan due to the...more

Commercial Division Enforces Strict Compliance With Change-of-Control Notice Requirement

In GSMC II 2006-GC6 Bridgewater Hills Corporate Center, LLC v. Lexington Realty Trust, Case No. 653117/2015, 2016 BL 378261 (N.Y. Sup. Ct. Nov. 2, 2016), Justice Jeffrey K. Oing of the Commercial Division denied a motion to...more

Hurricane Sandy, Flood, and Sewer Backup: New Jersey Federal Court Confirms Anti-Concurrent Causation Bars Insured’s Claim

As we have written about before on this blog, the water damage caused by Hurricane Sandy in October 2012 gave rise to important questions concerning the applicability of so-called “anti-concurrent causation” clauses. Such was...more

Forfeiture: High Court grants relief after 14 months

Landlords and agents may have to look again at whether 6 months is sufficient time to allow the tenant to apply for relief, before exercising peaceable re-entry. In Pineport Ltd v Grangeglen Ltd [2016] EWHC 1318 (CH) the...more

‘I’m yours … and yours’: California Supreme Court puts restrictions on ‘dual agents’

The California Supreme Court just closed a loophole as to whether a salesperson’s duties to a buyer in a real estate transaction – when that salesperson’s broker is acting as a “dual agent” – includes the duty to learn and...more

Title Bout: Second Circuit Limits Parties’ Control Over Construction Of Policies

Like other contracts, insurance policies are divided into parts, and most of the parts appear under headings or captions. A separate contract term (known as a “titles clause” or a “headings clause”) sometimes specifies that...more

Ninth Circuit Overturns Entz-White Lumber; Avoiding Default Interest Via Cure Through Chapter 11 Plan No Longer Valid

In the case of Pacifica L 51, LLC v. New Investments, Inc. (In re New Investments, Inc.), 9th Cir. November 4, 2016, the U.S. Court of Appeals for the Ninth Circuit held that a Chapter 11 debtor could not avoid paying default...more

5 things to consider when deciding whether to include an arbitration clause in a real estate contract

Many types of contracts require the parties to submit their disputes to arbitration. For example, arbitration clauses are common in consumer agreements, such as car leases and gym memberships. While a consumer can negotiate...more

If I get a judgment against my commercial tenant, will I be able to collect?

At times, the easiest part of litigation can be getting a judgment, while collecting on the judgment can be time consuming and expensive. Unfortunately, it is difficult to determine whether you will able to collect on a...more

A Superficial Analysis of Competitive Foreclosure Won’t Play in Peoria

A federal trial court rejected a hospital’s antitrust claims that it was substantially foreclosed from the market by its rival’s exclusive contracts with payors. The court concluded that foreclosure in healthcare services...more

California appeals court rejects ‘creative’ sham guaranty defense

In what can only be described as pure “chutzpah,” a commercial real estate investment fund argued that it was the alter ego of its property-level SPE to avoid liability under a guaranty. While the strategy worked in the trial...more

Dispute an expert's jurisdiction appointed to provide expert determination?

In the recent decision of Zvi Construction Co LLC v. Notre Dame University (USA) in England [2016] EWHC 1924, the Technology and Construction Court (TCC) had to consider whether a party had expressly or impliedly accepted the...more

North Carolina Supreme Court Gives Easement Holders 20 Years to Challenge Encroachments

On August 19, 2016, the North Carolina Supreme Court issued a decision that will benefit all companies that own easements. Patrolling easements and clearing them of vegetation and structures can be very costly, but the...more

Ambiguity And Ensuing Loss: The Second Circuit Affirms The Southern District Of New York’s Holdings In a $675 Million Superstorm...

In National Railroad Passenger Corp. v. Aspen Specialty Ins. Co., 2016 U.S. App. LEXIS 16074 (2d. Cir. Aug. 31, 2016), Amtrak sought the entire $675 million of available coverage from a number of its insurers for damages...more

“Context Matters” – Tenth Circuit Holds Mudslide Not an Explosion Under Property Policy

On August 29, 2016, the U.S. Court of Appeals for the Tenth Circuit affirmed a Colorado district court ruling that the sudden obliteration of a building in a 2013 mudslide did not constitute an “explosion” under a commercial...more

Defence & Indemnity - August 2016: I. INSURANCE ISSUES

A. In a commercial lease, the covenant of the tenant to insure the landlord along with itself fixes the tenant with the risk of loss. Failure to add the landlord to the policy, as required by the lease, does not allow the...more

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