Civil Remedies Civil Procedure Residential Real Estate

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Indiana Court Weighs in Deficiency Judgments

The Indiana Court of Appeals recently held that creditors must move for an in personam remedy in the original foreclosure judgment or forfeit their right to collect deficiency funds. In Elliott v. Dyck O’Neal, the bank...more

A Contractual Attorney Fee Provision Cannot Override the Statutory Cap on Attorney Fees in a Small Claims Appeal

Michael Dorsey v. The Superior Court of San Diego (Crosier) - Court of Appeal, Fourth Appellate District (October 22, 2015) - Small Claims Court exists so those with meritorious claims under $10,000 can have their...more

It just got a little bit easier to enforce judgment liens

Last year, we posted It just got a little bit harder to enforce judgment liens, which analyzed a Court of Appeals decision that invalidated a judgment lien against third-party purchasers due to the judgment creditors’ failure...more

FHFA, Fannie and Freddie File Defensive Class Action in Nevada

In an effort to “avoid the cost and burden of piecemeal litigation” of hundreds of cases in the Nevada HOA foreclosure crisis, the Federal Housing Finance Agency (FHFA), Fannie Mae, and Freddie Mac (collectively,...more

Waivers of Rights to Compensation are Enforceable in Eminent Domain Actions

It’s not every day you’re involved in a successful eminent domain case before the California Court of Appeal. It’s even more unusual when the case deals with a number of interesting legal issues, such as the enforceability...more

Borrower Who Obtains A Preliminary Injunction Is Entitled To A Fee Award

In Monterossa v. Superior Court (PNC Bank), 2015 DJDAR 6488, the California Court of Appeal for the Third District decided a case of first impression under Code of Civil Procedure Section 2924.12(i) enacted in 2012. The...more

McMillin Albany, LLC v. Superior Court Rejects Reasoning and Outcome of Liberty Mutual on SB800

In McMillin Albany, LLC v. Superior Court (available here), the Fifth Appellate District of the California Court of Appeal held that SB800 (Civil Code sections 895 through 945.5, the “Right to Repair Act”) is the only remedy...more

Finally, a SOL Decision Focused On Unjust Enrichment and Inequitable Results

This week, the First District Court of Appeals joined the Fourth District Court of Appeals in holding that Florida’s five-year statute of limitation (SOL), under Fla. Stat. § 95.11(2)(c), did not bar the lender’s second...more

EARL e-News: The Uncertain Status of “Stigma Damages” for Property Claims in South Carolina - Updates on Environmental,...

In Chestnut, et al v. AVX Corporation, Appellate Case 2012-212143 (S.C. Supreme Court August 5, 2014), the State Supreme Court was faced with the issue of whether “stigma damages” could apply for environmental contamination...more

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

You Won Your Case — Now What? SCC to Consider Intersection of Judgment Enforcement and Privacy Rights

A plaintiff wins judgment, but the defendant (judgment debtor) refuses to pay or provide information necessary for the plaintiff (judgment creditor) to realize against the debtor’s assets. When and how can the creditor obtain...more

Insurance Filed Rate Defense Wins Over the Second Circuit

In a noteworthy embrace of the filed rate doctrine, the Second Circuit recently ruled, in the context of a challenge to so-called lender-placed or “force placed” insurance, that a regulator-approved rate is subject to the...more

If At First You Succeed, Don’t Try, Try, Try Again

The Fifth District Court of Appeal has confirmed that the 90-day statute of limitations under the Subdivision Map Act includes takings claims arising out of Map Act decisions. Honchariw_v._County_of_Stanislaus, No. F069145...more

Borrowers’ Counsel Sanctioned for Frivolous Lawsuit Against Lender Who Attempted to Resolve Foreclosure Action

An Ohio appellate court has affirmed an order of sanctions against counsel for borrowers who filed a frivolous lawsuit against the lender alleging fraud, breach of contract and estoppel in connection with failed attempts to...more

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

New York Court of Appeals Provides Guidance on Deficiency Judgments

The level of proof that a lender must submit to obtain a deficiency judgment following a mortgage foreclosure was recently clarified by the New York Court of Appeals. Under RPAPL § 1371, a lender may seek a deficiency...more

Appraisers’ Failure to Perform Assessment of Property’s Existence or Damage is Reversible Error

In Lee v. California Capital Insurance Co. (No. A136280; filed 6/18/15), a California Court of Appeal held that it was error for an appraisal panel to assign loss values to items simply because they were listed in the...more

Changes to Arizona Purchaser Dwelling Act Affect Sellers and Construction Professionals

In its last session, the Arizona legislature amended the statutes governing Purchaser Dwelling Actions, A.R.S. 12-1361 et seq., and Homeowner Association Dwelling Actions, A.R.S. 33-2001 et seq., relating to claims against...more

Illinois AG Madigan Announces $1 Million Settlement Regarding Company’s Management of Foreclosed Properties

On June 3, Illinois AG Madigan announced a $1 million settlement with an Ohio-based company that mortgage lenders hire to manage properties throughout the foreclosure process and ensure that the properties retain their value....more

Locke Lord QuickStudy: Rhode Island Superior Court Decision Impacting Servicers

A Rhode Island superior court recently ruled that, pursuant to R.I. Gen. Laws § 34-27-3.2, foreclosing lenders are required to send mediation notices in any foreclosure initiated after the effective date (October 2014)...more

The Different Warranties Covering A Contractor’s Work

A general’s or subcontractor’s job is far from over when it receives final payment on a construction project. Rather, final payment begins a new phase of the project, the warranty phase, which may last years. This is true...more

Listing Unaccrued Debts In Legal Pleadings Can Leave Creditor Attorneys Liable for FDCPA Damages

When drafting demand letters and complaints, creditors and their attorneys must be cautious when demanding fees from the debtor which the creditor has not yet incurred. The Third Circuit has announced that including a demand...more

West Virginia Supreme Court Of Appeals’ Refusal To Review Punitive Award For Excessiveness Under Due Process Clause Warrants...

As readers of this blog and litigants and their attorneys in punitive damages cases well know, the U.S. Supreme Court gets the final say on matters of constitutional interpretation, including the due-process requirements for...more

Montana Supreme Court Upholds $5 Million Punitive Award That Is Five Times The Compensatory Damages

Montana is known fondly to many as Big Sky Country, but it also is quickly gaining a reputation for big punitive damages awards. Not only are juries imposing breathtaking amounts of punitive damages with increasing...more

Righting a Wrong in West Virginia – The Residential Construction Right to Cure

In residential construction, problems can arise with customers that cause expensive litigation. In West Virginia, a right to cure in residential construction by statute can alleviate such costs. The statutory term is...more

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