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Summary Judgment In Favor Of Broker In Malpractice Case Reversed, Where Special Relationship With Insured May Have Existed

In a case involving alleged broker malpractice with respect to certain underinsured business interruption losses under a commercial property insurance policy, the New York high court reversed a lower appellate court’s...more

After Boardwalk: The IRS Issues Safe Harbor Guidance for Historic Tax Credit Transactions

Immediately upon its publication, The United States Court of Appeals for the Third Circuit’s decision in Historic Boardwalk Hall, LLC v. Commissioner, 694 F.3d 425 (3d Cir. 2012), cert. denied, 133 S. Ct. 2734 (2013) put...more

Tenth Circuit Holds That Two-And-One-Half Years And Two-And-One-Half Million Dollars Do Not Constitute Prejudice

In BSC Holding, Inc. et al. v. Lexington Ins. Co., — Fed.Appx. –, 2014 WL 929194 (10th Cir., March 11, 2014), the Tenth Circuit recently underscored how difficult it can be for an insurer to demonstrate prejudice as a result...more

EPA Endorses Upgraded All Appropriate Inquiry Standard

Buyers of real estate and their lenders are familiar with the Phase I Environmental Site Assessment. Originally developed in the 1980s in response to the CERCLA statute, the Phase I protocol has been refined over the years. ...more

New York Court of Appeals Holds Property Policy Time Limitation for Replacement Costs Suits Amounts to “Claim Nullification”

Facts and Underlying Litigation - Will New York courts enforce a time-limitation period for suits for replacement costs against an insurer under a property policy, even if the insured could not have completed the...more

California Court Denies Summary Judgment on Known Conditions Exclusion

In its recent decision in Lennar Mare Island v. Steadfast Ins. Co., 2014 U.S. Dist. LEXIS 26405 (E.D. Cal. Feb. 28, 2014), the United States District Court for the Eastern District of California had occasion to consider the...more

Appeal Court Re-Writes Rules Relating to Insolvent Tenants

Landlords' set to obtain "full value" as a result of re-statement of ancient equitable principle - Pillar Denton Limited and others v Jervis and others - Outline - In a ruling relating to the stricken...more

Mortgage Lenders Can’t Jump Ahead of Mechanic’s Liens

In Weitz Co., LLC v. Heth, 223 Ariz. 442, 314 P.3d 569 (Ct. App. Nov. 26 2013), the Arizona Court of Appeals held that the plain language of Arizona’s mechanic lien statute, A.R.S. § 33-992(A), does not allow a lender to jump...more

Lucantonio v Stichter – “No Causation” finding confirmed

The Court of Appeal decision in Lucantonio v Stichter provides a refresher on how a Court should determine if a person’s breach of duty caused harm under the Civil Liability Act 2002 (“Act”)....more

Case update Scotland: Retail park - whether tenant withholding consent to further development by landlord was reasonable

Aviva Investors Pensions Ltd v McDonald's Restaurants Ltd [2014] CSOH 009A: 31 January 2014 - Introduction - In this case, which was heard in the Outer House of the Court of Session, the judge (Lord Malcolm)...more

Is your WA lease destroyed on a transfer? - The Primewest appeal

The long awaited appeal judgement of Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 was handed down on 5 February 2014. As detailed in our Original Article, Primewest (the seller) had commenced action in...more

Navigating The All-Risks Policy: Is Wear And Tear A Fortuitous Risk?

In its decision in 1422253 Ontario Limited O/A Esso Fourth Avenue Gas Bar v. Coachman Insurance Company, 2013 ONSC 5740, the Divisional Court held that damages resulting from wear and tear can, in certain circumstances, be...more

Northern District of New York Bankruptcy Court Rules On Issue of First Impression Concerning Lien Stripping in A Chapter 7 Case

“Lien stripping” often takes two forms. A debtor’s attempt to void the unsecured portion of a lien when there is some but not enough equity in collateral to fully cover a lienholder’s entire debt is commonly referred to as a...more

Alabama Federal Court Ruling May Enable Borrowers with Tenants To Challenge Foreclosures

A recent decision from the U.S. District Court for the Northern District of Alabama may provide borrowers who rent portions of their property to tenants with an avenue for challenging a foreclosure. The court's analysis...more

E.D.N.C. Bankruptcy Court Rules that Borrower Can Raise Unfair and Deceptive Trade Practices Claims Against Lender Based on...

Does a lender have a duty to act in good faith when negotiating with a borrower during a commercial loan modification? In an order issued recently by the United States Bankruptcy Court for the Eastern District of North...more

Default Notices and Freehold Leases: Take Two

There may be a sign that last year’s dire consequences for a freehold oil and gas lessee who does not quickly respond to a default notice by commencing legal proceedings may be moderating somewhat, at least in certain...more

Louisiana Court of Appeal Rejects Plaintiff's Attempt to Join Claims of Contamination of Separate Parcels with Different Lessees...

The Third Circuit Court of Appeal in Louisiana issued an opinion on December 11, 2013, that may have a profound impact on litigation related to contamination from historic oil and gas exploration and production operations in...more

MoFo New York Tax Insights - Volume 5, Issue 1 - January 2014

In This Issue: The Top 10 New York Tax Highlights of 2013; New York City Permitted to Collect Hotel Tax Prior to Explicit Statutory Authority; Appellate Division Reinstates Tax Exemption for Public Parking Facilities;...more

How To Perfect And Enforce A Mineral Lien: Six Steps

If you furnish labor or materials to an oil or gas well and are not paid, then you should consider filing a mineral lien. Below are the steps to perfect a mineral lien....more

Value of Intangible Assets That Make a Direct Contribution to the Going Concern Value of a Business Must be Deducted from Property...

After the sale of an upscale city hotel, a county assessor reassessed the property. The new owner challenged the assessment, claiming it improperly included the value of nontaxable intangible assets. The county assessment...more

Anti-Concurrent Causation Clauses Get More Attention

Catastrophe losses rarely involve a situation where the loss is solely caused by an excluded peril. Anti-Concurrent Causation (ACC) clauses were drafted to address the scenario where two perils contribute to the same loss....more

Flood Insurance Statute of Limitations Remains Intact After Proof of Loss Deadline Extensions

Following Superstorm Sandy, the Federal Emergency Management Agency (FEMA) extended the deadline to submit a proof of loss for Sandy-related claims from the 60-day period provided for by the agency’s regulations to 12 months....more

A Favored-Nations Clause Gone Awry

Oh, how a simple Favored-Nations clause in an oil and gas lease can get complicated, with large financial consequences! In BP America Production Company v. Zaffirini, BP paid Solis a $1,300 per acre bonus for a lease covering...more

Missouri court rules jury waiver applies here, there, and everywhere

What happens when one loan document contains a jury waiver but another doesn’t? For the lender, all may not be lost. That was another important holding from the Missouri Court of Appeals Western District in Midland...more

Tax Refund Litigation Update: Court of Federal Claims Relies on “Substance Over Form” Doctrine to Recharaterize Transaction

A decision by the United States Court of Federal Claims originally filed under seal and reissued on October 23, 2013 evidences an important trend in the substance over form doctrine created by the courts to recharacterize...more

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