Law School Toolbox Podcast Episode 392: Listen and Learn -- Recording Statutes (Real Property)
Bar Exam Toolbox Podcast Episode 146: Listen and Learn -- Mortgages and Priority
Obligations reduced to a promissory note are often accompanied by a written guaranty. The law treats the guaranty as an independent obligation. A case recently decided by California’s First District Court of Appeal —...more
In a recent decision, the Colorado Supreme Court reversed the Colorado Court of Appeals and held that a discharge in bankruptcy does not trigger the statute of limitations on a claim to foreclose based on a deed of trust....more
Lenders on commercial real estate projects typically require that the general contractor subordinate its mechanics’ lien rights to the lender’s deed of trust and other financing documents in order to assure the lender that...more
As we previously noted, the statute of limitations on actions to enforce a note or deed of trust can be a brutally effective sword for borrowers in Washington State. Under the six-year limitations period of RCW 7.28.300, a...more
Modifying a loan can sometimes cause a loss of lien priority. It all depends on the facts underlying the modification, and even the original loan....more
Welcome back to the Bar Exam Toolbox podcast! In today's installment of our "Listen and Learn" series, we're focusing on Real Property. In particular, we're diving into the tricky subtopic of mortgages and priorities. In...more
Oscar Wilde is quoted for saying—“To expect the unexpected shows a thoroughly modern intellect.” This advice certainly holds true for a senior deed of trust lienholder contemplating foreclosure on real property security. ...more
Can a California real property owner challenge a lender’s authority to foreclose before a foreclosure sale has occurred? It’s looking less likely with each new appellate opinion....more
Flashback: Five years ago, Money and Dirt covered the Salazar v. Thomas opinion from California’s Fifth District Court of Appeal holding that a Notice of Default does not “disturb possession” sufficiently to start the...more
Everyone is familiar with the “Rock, Paper, Scissors” method of resolving disputes where scissors cut paper, paper covers rock, and rock breaks scissors. In Futuri Real Estate, Inc. v. Atlantic Trustee Services, the Virginia...more
As any seasoned developer knows, condominium development projects involve a delicate interplay between the developer, unit owners, the condo association, and the lenders that fund construction and acquisition costs. Last...more
Lenders who prevail on claims arising from a deed of trust can always recover their attorney fees from the losing party as long as the deed of trust says something about fee recovery, right? It’s not that simple....more
In my last article, I discussed whether inconsistent dates on a promissory note and deed of trust could cause problems in foreclosure. But what if you can't even find the original promissory note? Perhaps it was...more
Consider this scenario: You loan money to a borrower. You intend to secure the loan with a deed of trust encumbering real property. Your borrower signs a promissory note dated November 7, 2006. But your deed of trust is...more
What law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. App. April...more
For years, the typical post-default strategy of secured lenders has been to foreclose the collateral through the power-of-sale contained in the deed of trust, credit the foreclosure proceeds to the outstanding loan balance,...more
Deadline for seeking deficiency. Section 33-814(A) of the Arizona Revised Statutes allows a foreclosing creditor (the "beneficiary"), within 90 days after the date of a trustee's sale, to commence an action to recover a...more
The Supreme Court of Washington has upheld a lender’s right to pursue a deficiency judgment against a guarantor following a nonjudicial foreclosure of collateral under Washington’s Deed of Trust Act (the “Act”). The court’s...more
As reported in our blog article below, in June the Second District Court of Appeal held that California’s non-judicial foreclosure statutes do not grant a defaulting borrower the right to enjoin a foreclosure sale by alleging...more
In a new California case, a lender that made a full credit bid at a foreclosure sale lost its right as mortgagee under a lender’s insurance policy for damage to the property that occurred prior to foreclosure. This was so...more
Nevada has adopted the Uniform Common Interest Ownership Act of 1982 (the “Act”) which governs homeowners’ associations (“HOA”). One particular provision of that Act, enacted by Nevada in 1991 and later amended, and codified...more
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
The Virginia Supreme Court recently expanded the grounds under which a private borrower can sue a lender for violations of HUD regulations. In Squire v. Virginia Housing Development Authority, a decision issued on April 17,...more
It is hard to imagine that a lender’s first-position deed of trust on a residence worth hundreds of thousands of dollars could be extinguished by a homeowners’ association (HOA) lien for overdue neighborhood assessments,...more
Lenders and servicers have been addressing the issue of some Nevada courts ruling that a foreclosure sale by a homeowners association (HOA) "wipes out" a senior deed of trust. Since the date of our last legal alert on this...more