Residential Real Estate Civil Procedure Civil Remedies

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Property Insurance Diminution in Value Class Action: Georgia Federal Court Dismisses Declaratory Judgment Claim

A while back, I wrote about a Georgia Supreme Court decision, Royal Capital Development LLC v. Maryland Casualty Co., that held that diminution in value of real property is potentially covered under a property insurance...more

Rhode Island Supreme Court Rules That Condominium Assessment Liens Could Extinguish First-Priority Mortgages

First mortgage holders in Rhode Island beware: in a 4-1 decision handed down on December 4, 2015, the Rhode Island Supreme Court has ruled that pursuant to the Rhode Island Condominium Act, RIGL § 34-36.1-1.01 et seq., liens...more

“Insanity Defense” Fails To Preserve Coverage For Insured’s Arson

Missouri resident James Roller set fire to his garage in an attempt to commit suicide. When smoke and fumes surrounded him he changed his mind, fled the garage, and alerted his wife of the fire. Mrs. Roller called 911. A...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

Intervention by Individual Homeowners Deemed Timely

Ziani Homeowners Association v. Brookfield Ziani LLC, et al. - Court Of Appeal, Fourth Appellate District, Division Three - (December 22, 2015) - The Court of Appeal considered the issue of timeliness of a...more

What Creditors Need to Know - Two Recent Bankruptcy Rulings Affect Rights and Risks Regarding the Automatic Stay

Immediately upon the commencement of a bankruptcy case an automatic stay prohibits actions against the debtor to, among other things, collect pre-petition obligations and to obtain control over property of the bankruptcy...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

Creditors Rights Suffers a Major Depression in North Carolina

So, What can a Lender Count on from a Guarantor? - In 1933, the North Carolina legislature in reaction to the Great Depression enacted certain defenses against alleged abuses by lenders exercising remedies under...more

The Eleventh Circuit Issues Two Unanimous Opinions Finding No Private Right of Action Under TARP

On October 3, 2008, George W. Bush signed the Troubled Asset Relief Program (TARP) into law as part of the government’s efforts to combat the subprime mortgage crisis and shore up the faltering economy. In general terms, TARP...more

Appellate Division Rules that Town Cannot Use Contract Law Provisions to Recover Taxes

In Town of Amherst v Brewster Mews Hous. Co., Inc and Town of Amherst v. Pepper Tree Hgts. Hous. Co., Inc. (4th Dept. 2015), the Appellate Division held that a taxing jurisdiction could not use contract remedies to recover...more

Deed by a Disabled Person is Void, Not Voidable

The Maryland guardianship laws do not fully describe the consequences of a disabled person’s entry into a transaction without the knowledge of their guardian. Is the transaction void or voidable? Is one who advances funds...more

Nevada Federal District Court Rules Lien Statute Unconstitutional

We have reported before on a decision last fall from Nevada’s Supreme Court holding that a homeowners association (HOA) lien is a true super-priority lien that, if foreclosed upon, extinguishes a first deed of trust. Lenders...more

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

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