News & Analysis as of

Anti-Deficiency Provisions Foreclosure

Snell & Wilmer

Foreclosure Deficiency: Construction Loan vs. Home Improvement Loan

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In a recent Arizona Court of Appeals case, Helvetica Servicing, Inc., v. Pasquan, 2019 WL 3820015, (8/15/19), the Court of Appeals addressed the distinction between (1) a construction loan (or refinance of same) and (2) a...more

Patton Sullivan Brodehl LLP

Not All Deed of Trust Attorney Fee Clauses are Created Equal

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

Allen Matkins

Appellate Court Narrows the Scope of the Sham Guaranty Defense

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California's anti-deficiency statutes limit a lender's right to recover a deficiency judgment against the borrower after a non-judicial foreclosure sale, but such protections generally do not extend to guarantors. A number of...more

Snell & Wilmer

Everyone Wins When a Foreclosure Sale Generates Excess Proceeds

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When a foreclosure sale generates more money than needed to pay off the lien, the excess proceeds usually go first to creditors in the order of their priority, and second to the owner after creditors are paid in full. So, in...more

Ervin Cohen & Jessup LLP

Slam on the Slam – A California Court Further Limits the Sham Guaranty Defense

There has been much recent California case law regarding the sham guaranty defense and for good reason – success for a guarantor on this defense can eliminate a lender’s recovery of a deficiency against a guarantor of a...more

Clark Hill PLC

Recent Arizona Case Law and Other Developments Affecting Real Estate Lending

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Recent Arizona Case Law - Dobson Bay Club II DD, LLC v. La Sonrisa De Siena, LLC (AZ Court of Appeals 2016). The borrowers signed a $28.6 million note and DOT to CIBC. The note required interest-only payments with a...more

Clark Hill PLC

Recent Arizona Case Law and Legislative Developments Affecting Real Estate Lending

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The following information accompany a presentation Mike gave to members of the Arizona Commercial Mortgage Lenders Association (ACMLA) on March 8, 2016. A summary of legislative amendments enacted during the most recent...more

Spilman Thomas & Battle, PLLC

Highmark Properties Revisited: Lender Credit Bids

The dust has yet to settle on the landmark decision of High Point Bank & Trust Co. v. Highmark Properties, LLC, 776 S.E.2d 838 (N.C. 2015). Before delving into the decision that should serve as a harbinger of imminent and...more

Spilman Thomas & Battle, PLLC

Community Banking Excellence - First Quarter 2016

In This Issue: - Another Perspective: We interviewed Michelle Crook, CFO of the Bank of Botetourt, and Chris Snodgrass, CFO for Bank of Marion, for our Community Banking Excellence this quarter. We wanted to know...more

Holland & Knight LLP

West Coast Real Estate Update: Feb. 2016 #2

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New Legislation Limits Tax Sharing Agreements - California Senate Bill (SB) 533, which was signed into law in October 2015, went into effect on Jan. 1, 2016, and limits local government from executing tax-sharing...more

Nexsen Pruet, PLLC

Creditors Rights Suffers a Major Depression in North Carolina

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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

Spilman Thomas & Battle, PLLC

Guarantors Can Use Anti-Deficiency Statute in North Carolina

The North Carolina Supreme Court recently handed down the final word in a dispute over whether guarantors get the benefit of the state’s anti-deficiency statute after the lender bids on and buys the real property at a...more

Spilman Thomas & Battle, PLLC

Community Banking Excellence - Issue 3, 2015

In This Issue: - Another Perspective - James C. Cherry, Chief Executive Officer, Park Sterling Bank: With more than three decades of experience in banking in North Carolina and Virginia, Park Sterling's CEO James C....more

Nexsen Pruet, PLLC

Deficiency Judgment Cases In North Carolina Just Got A Lot More Complex: CentsAbility: Creditors' Rights Law Update

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A question that continually arose during the foreclosure deficiency actions that were spurred by the recent “Great Recession,” was whether or not a guarantor on a loan could raise the “defense” offered in N.C. Gen. Stat. §...more

Ervin Cohen & Jessup LLP

The Case of the Vanishing Guaranty—Issues Facing Commercial Real Property Lenders Regarding Revocable Trust Borrowers

I have recently received numerous questions from commercial lender clients regarding structuring and enforcing commercial real property loans involving revocable trusts. Their concerns have largely centered on how to...more

Baker Donelson

Lenders Beware: Future Hurdles to Foreclosure Deficiency Actions May Lie Ahead

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In an update to Kevin Stine’s June 6, 2014 article explaining the Georgia Court of Appeals decision to bid adieu to select foreclosure confirmation hurdles, the District Court for the Northern District of Georgia recently...more

Snell & Wilmer

Guarantors Can Waive Anti-Deficiency Protections

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In Arizona, guarantors can now be held liable for deficiencies even where borrowers avoid liability due to Arizona’s anti-deficiency statute. Arizona courts have been active in the last few years in addressing the law...more

Clark Hill PLC

Certain Residential Developers are Unprotected by the Anti-Deficiency Statute after Foreclosure of a Deed of Trust on Vacant...

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Nearly three years ago, in M&I Marshall & Isley Bank v. Mueller, the Arizona Court of Appeals held that the Arizona anti-deficiency statute (A.R.S. § 33-814) protects a borrower who started, but never completed, construction...more

Snell & Wilmer

California Amends its Anti-Deficiency Statute

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As of January 1, 2014, California amended its anti-deficiency statute to stop mortgage lenders from “collecting” from homeowners on post-foreclosure debts. Although the amendments were designed to tackle a purely...more

Snell & Wilmer

Arizona Court of Appeals Holds That Certain Residential Developers Are Not Protected By The Anti-Deficiency Statute After...

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Nearly three years ago, in M&I Marshall & Isley Bank v. Mueller, the Arizona Court of Appeals held that the Arizona anti-deficiency statute protects a borrower who started, but never completed, construction of a single-family...more

Dickinson Wright

Arizona’s Broad Anti-Deficiency Protection Confirmed

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The non-judicial foreclosure process affords banks and lenders a relatively “cheap” means of executing on their collateral in the event of a borrower’s defaults. That cheaper process comes at a price, however. Arizona has a...more

Manatt, Phelps & Phillips, LLP

Expansion of California’s Anti-Deficiency Laws Means More Litigation For Creditors

Turning a narrow consumer shield into a potentially broad sword, this summer California expanded its anti-deficiency judgment laws to prohibit not only the judicial pursuit of mortgage deficiency balances, but also to declare...more

Snell & Wilmer

A Non-Purchase Money Second Deed of Trust is Not Protected by Arizona’s Anti-deficiency Statute

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Arizona anti-deficiency laws do not prohibit a non-purchase money lender from suing on its note after foreclosure by a senior lender. In Wells Fargo Bank, N.A. v. Brewer, No. 1CA-CV 12-0383 (Ariz. Ct. App. May 21, 2013...more

Snell & Wilmer

A Lender Holding Two Liens Can Foreclose on the Senior Lien and Sue on the Junior Lien

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In Wells Fargo Bank, N.A. v. Riggio, No. 1CA-CV-12-0430 (Ariz. Ct. App. June 4, 2013), the Arizona Court of Appeals held: (i) that the “merger of rights” doctrine does not “merge” a lender’s first and second lien into a...more

Snell & Wilmer

Arizona’s Anti-deficiency Statute, A.R.S. 33-814(G), Cannot be Prospectively Waived Says the Court of Appeals

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In Parkway Bank & Trust Co. v. Zivkovic, 662 Ariz. Adv. Rep. 26 (Ct. App. 2013), the Arizona Court of Appeals held that provisions in loan documents purporting to waive the applicability of A.R.S. § 33-814(G) violate Arizona...more

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