Residential Real Estate Constitutional Law

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A New Case On Standing to Foreclose

Legal standing to foreclose a note and mortgage continues to be an issue that frustrates plaintiffs and delights defense counsel. Florida courts have consistently held that standing must exist when the lawsuit is filed and...more

Property Tax Foreclosure: Tax Authority May Have to Pay for Equity in Property

A chapter 7 trustee sought to avoid a property tax foreclosure as a fraudulent transfer and then to recover damages from the foreclosing county. The bankruptcy court agreed that the transfer was a fraudulent conveyance, but...more

Did Koontz Stop Illegal Development Exactions?

Much was written by law school professors and property rights groups following the U.S. Supreme Court's 5-4 decision in Koontz v. St. John's River Water Management District (2013), which found that land-use permit...more

Fourth Amendment Precludes Inspection Of Private Property Even In Assessment Review Litigation

Recently there has been increasing debate regarding if and when assessing jurisdictions, or its agents, can invade the privacy of New York residents. Even New York’s governor has been impacted by this issue. Last week, the...more

Keeping its Options Open: Lodi Passes Resolution of Necessity as Negotiations Continue

As we have reported in the past, public agencies are often faced with deadlines to secure possession of necessary right of way and ensure project funding. Given the amount of time it takes to secure possession through the...more

Court Provides Guidelines on Valuing Natural Resources in Eminent Domain Proceedings

Valuing mineral rights in eminent domain proceedings is inherently speculative and can lead to wide swings in property valuations. So how do appraisers best deal with the uncertainty involved in mineral exploitation? The...more

An Assessor Must Consider A Claim For Prospective Property Tax Relief Involving Condemned Property Even If The Owner Files The...

In Olive Lane Industrial Park, LLC v. County of San Diego (July 18, 2014, D063337) -- Cal.App.4th --, the Court of Appeal considered whether the owner of property acquired by eminent domain could attain prospective property...more

Standing To Foreclose– Revisited

There have been several articles posted on this blog on the subject of standing – the legal right to enforce a promissory note and/or mortgage. This continues to be a popular issue for defense counsel to raise and, as a...more

Motions in Limine May be Used in Eminent Domain Proceedings to Determine Party's Interest in Property

"Motions in limine" are motions made shortly before trial, and they're typically filed in an attempt to limit the introduction of evidence to the jury. They are a powerful tool in eminent domain proceedings, and can be used...more

Governmental Power and Property Lines

On May 27, 2014, the Colorado Supreme Court issued its opinion in Town of Dillon v. Yacht Club Condos. Home Owners Ass’n, 2014 CO 37. Overturning the rulings of both the trial court and the Colorado Court of Appeals, the...more

California Foreclosure Law: A Defaulting Borrower Cannot Enjoin A Foreclosure Sale By Asserting That The Lender Lacks Standing

Under California’s non-judicial foreclosure statutes, a defaulting borrower cannot enjoin a lender’s initiation of foreclosure proceedings by asserting that the lender lacks standing. (Keshtgar v. U.S. Bank, N.A. (2014) 192...more

Time Limit to Transfer Base Year Property Tax Value Expanded for Eminent Domain Takings

Californians who have owned their properties for years understand the benefits of Proposition 13: their property taxes are based upon the property's purchase price (with only small allowable annual increases), as opposed to...more

Florida Federal District Court Dismisses Miami’s Fair Housing Act Cases

On July 10, the U.S. District Court for the Southern District of Florida dismissed with prejudice the Fair Housing Act claims in three suits filed by the City of Miami against mortgage lenders. City of Miami v. Bank of Am.,...more

Appellate Court Notes

AC35632- U.S. Bank, N.A. v. Foote - Second time is the charm. Defendant succeeded in getting plaintiff’s foreclosure action dismissed for lack of standing due to the inability of the witnesses to establish that the...more

Maine Supreme Court Decision Limits Scope of MERS' Ability to Assign Mortgages

On July 3, 2014, the Maine Supreme Judicial Court issued a ruling in Bank of America, N.A. v. Greenleaf, 2014 ME 89 (Me. July 3, 2014), significantly affecting the ability of Mortgage Electronic Registration System, Inc....more

Where Subdivision Access Is Uncertain, Approval of the Subdivision Must Be Contingent Upon Judicial Resolution

In the case of Shinn v. Bd. of Comm’rs of Clearwater Cnty., released June 17, 2014, the Idaho Supreme Court covered some new ground and revisited some old ground....more

Property Reserve on Hold: Supreme Court to Review Eminent Domain Right of Entry Statutes

Just a few months ago, the California Court of Appeal handed down a significant decision in Property Reserve v. Superior Court which nearly eviscerated public agencies' ability to make use of the statutory "right of entry"...more

Tax Injunction Act Bars Challenge to Local Demolition Tax

Recently, the Seventh Circuit Court of Appeals denied a challenge to a municipal tax on the demolition of real estate based on the strict enforcement of the Tax Injunction Act. This decision reinforces long-standing...more

Contamination, Underwater Mortgages, and the IRWA Annual Education Conference

Along with my colleagues Brad Kuhn, Ben Rubin, and Katherine Contreras, I'm here in Hartford at the IRWA Annual Education Conference. It's been an interesting few days as we discuss eminent domain issues in the shadow of New...more

California Investment Firm and City Team Up to Erase Mortgages Through Eminent Domain

If a California investment firm and the City of Richmond, California have their way, the mortgage industry may face a new threat: a plan to use government’s eminent domain power to seize homes where homeowners owe more than...more

City of Adelanto Halts Eminent Domain Efforts After Adopting Resolution of Necessity

Eminent domain litigation can be expensive. Not just the cost of acquiring the property (which is valued based on its highest and best use, and the "highest price" a willing buyer would pay), but the attorneys' fees, expert...more

Community Banking Excellence - Issue 2, 2014

In This Issue: - Another Perspective: Robert T. Braswell, President and Chief Executive Officer Carolina Bank: Mr. Robert T. Braswell is President and Chief Executive Officer of Carolina Bank. He has served in...more

Recent Cases Support Foreclosing Lenders against Challenges to Standing

The Florida Second District Court of Appeals recently ruled on yet another challenge to a note holder’s standing to foreclose based on lack of ownership of the mortgage. In OneWest Bank, F.S.B. v. Bauer (May 30, 2014), the...more

“Predatory Lending” Claims by Cities and Counties Against Financial Institutions Escalate in 2014

Cities and counties that have experienced increased foreclosure and vacancy rates in the aftermath of the housing market crash of 2007-2008, perhaps emboldened by recent court decisions, have recently filed several new...more

High Court Will Hear Religious Exemption Case

As reported in an earlier post, entitled New York Pagan Phryganium Wins Real Property Tax Assessment Appeal, the Third Department recently held that the Town of Catskill improperly denied a pagan religious group a real...more

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