Civil Remedies Civil Procedure Residential Real Estate

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Lawsuit Dismissed After Demurrer Sustained Without Leave to Amend

Plaintiff filed a complaint in Contra Costa County against the property manager and Board members of her Homeowner’s Association, alleging various causes of action involving perceived violations of the Davis-Stirling Act and...more

Klesla et al. v. Wittenberg

Court did not abuse its discretion in denying a motion to confirm arbitration award that asked for more than was awarded. Kleslas sued for (1) the return of their residential lease security deposit, (2) statutory...more

Court Confirms Interim Award Of Injunctive Relief But Refuses To Confirm Non-Final Opinion Of Arbitrator That Arbitration Was...

In a real estate broker commission dispute, the arbitrator had granted injunctive relief in favor of the plaintiff broker, ordering a percentage of the sale of certain real estate to be placed in an escrow account pending the...more

How to Prevent a Tenant from Removing Valuable Equipment Before They Flee

A landlord may prevent a tenant from taking equipment from the premises by filing a distress writ. Before a landlord files suit for eviction, it should first consider whether there is any equipment on the premises that...more

Who is a Mortgage Broker? Just Ask the Fed.

The United States Court of Appeals for the Second Circuit recently affirmed a magistrate judge’s decision in the District Court for the Eastern District of New York to dismiss a complaint brought under the Truth in Lending...more

Nevada Supreme Court Accepts Certified Question in HOA Lien Litigation Case – Should the SFR Decision Apply Retroactively?

We previously reported on the Nevada Supreme Court’s decision in SFR Investments Pool 1, LLC. v. U.S. Bank, N.A., holding that a homeowners association (HOA) lien is a true super-priority lien that upon foreclosure...more

CFPB Week in Review

The Consumer Financial Protection Bureau (CFPB) had another busy week. Here is an overview of what the CFPB was up to recently: Enforcement Actions and Litigation - Enforcement Action Against Santander Bank...more

Don’t Mess with the Texas Prompt Payment of Claims Act: One Court’s Appraisal Result

Virtually all property insurance policies contain an appraisal clause, which outlines the appraisal procedure in broad terms. Those broad terms sometimes do not provide much guidance about the process, or about the effect...more

Homeowners Associations – Business Judgment Rule

Palm Springs Villa II Homeowners Association, Inc. v. Erna Parth - Court of Appeal, Fourth Appellate District (June 21, 2016) - The “business judgment rule” refers to a judicial policy of deference to the business...more

More Common Sense: Coverage for Collapse Requires More Than an Engineer’s Finding of Substantial Impairment

In February this blog commented on Washington State’s newly-adopted definition of “collapse” in property insurance policies that contain no specific definition of the term. (Observer, February 8, 2016, Common Sense Prevails: ...more

Ex Parte Attachment, and Priority, Reinstated to First in Time Creditor

In Estate of Summers v. Nisbet, the Maine Supreme Judicial Court reinforced the first in time, first in right nature of attachment and trustee process under Maine law. Attachment and trustee process are powerful enforcement...more

Can I Get a Money Judgment If I Can’t Locate the Defendant or If He Resides Out of State?

If you can’t locate a party and personally serve him, you can follow the less-known method of service, called substitute service. Once you have filed your complaint seeking damages for breach of a lease or guaranty, you are...more

Airbnb Files Suit to Enjoin San Francisco Law

As expected, Airbnb filed suit in the U.S. District Court for the Northern District of California on Monday seeking to enjoin the recently enacted amendments to the City’s so-called “Airbnb law.” The suit seeks to strike...more

Homeowners Who Purchase Directly from Homebuilders May Seek Recovery of Attorneys’ Fees on Claims for Breach of the Implied...

Three things have long been settled law in Arizona regarding residential construction: (1) a homebuilder owes a homeowner an implied warranty of workmanship and habitability with regard to the construction of the home; (2)...more

Defeated North Carolina Class Action Ultimately Results in Victory for Landowners – NCDOT Loses Map Act Fight

What began several years ago as a defeated attempt at a class action against the North Carolina Department of Transportation (NCDOT) ultimately resulted in a win this month for plaintiff landowners in Kirby v. NCDOT (No....more

Nevada Supreme Court Clarifies Limits to its SFR Investments Decision

In September 2014, the Nevada Supreme Court, in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., held that a portion of a homeowners’ association (HOA) lien for delinquent assessments has true super-priority status over a...more

Florida Court Declines to Apply a Multiplier as to Attorneys’ Fees in a First Party Insurance Coverage Dispute

In Fla. Peninsula Ins. Co. v. Wagner, 2016 Fla. App. LEXIS 8262 (Fla. 2d DCA 2016), the Second District examined whether the trial court properly applied a multiplier as to attorneys’ fees after the insured homeowners...more

Court of Appeal Addresses “Prejudice” Element of Wrongful Foreclosure

If a property owner loses their property through a foreclosure sale initiated by someone who did not validly own the debt, has the property owner automatically suffered enough “prejudice” to pursue a claim for wrongful...more

The Dangers of Idle Property: Squatters Rights in California

Imagine that you live in Colorado, but own a vacation home in California. You love California, but are only able to visit once a year during the summer, while your kids are on vacation from school. Typically you and your...more

A New Procedure for Appointing Commissioners to Partition Property in Tennessee

Generally, any person that has an ownership interest in property in which one or more other persons also have an interest may bring an action to divide the property or to sell the property and have the proceeds therefrom...more

Third Circuit Holds No Estoppel In Light of Reservation of Rights Letters

In its recent decision in Nationwide Prop. & Cas. Ins. Co. v. Shearer, 2016 U.S. App. LEXIS 9635 (3d Cir. 2016), the United States Court of Appeals for the Third Circuit, applying Pennsylvania law, had occasion to consider...more

Nevada Supreme Court Clarifies Extent of HOA Super-Liens

For the past several years, Nevada courts have been flooded with quiet title actions between mortgage lenders and buyers who acquired residential properties at homeowners association (HOA) super-lien foreclosures. Recently,...more

If I Drop My FDUTPA Claim Because I Realize I Can’t Prove Actual Damages, Am I Still Liable For The Defendant’s Attorney’s Fees?

Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) prohibits unfair, deceptive, and unconscionable actors or practices in the conduct of any trade or commerce—including the purchase and sale of real estate. A...more

The Simplest Way to Defeat Claims Alleging an Invalid Assignment of a Deed of Trust: Judicially Noticeable Documents

Recently, much judicial ink has been deployed writing opinions addressing borrower challenges to foreclosure based on allegations that the deed of trust was not validly assigned to the foreclosing lender. Earlier this...more

No right to jury trial in foreclosure, even where lender seeks money judgment on promissory note

Given the choice, a borrower in foreclosure may prefer that a jury determine her fate, rather than a judge.  But by statute, “[a]ll mortgages shall be foreclosed in equity” and “foreclosure claim[s] shall, if tried, be tried...more

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