The Arizona Supreme Court recently clarified that a judgment lien does, in fact, attach to the proceeds of the sale of a homestead property. See In re McLauchlan. In sum, if the sale of a home produces more than the homestead...more
Recent research I did on a case led me to the conclusion that Arizona law recognizes foreign litigation (i.e., a lawsuit filed outside of Arizona) as a justification for the recording of a lis pendens against real property...more
Over the last few years, the Arizona Court of Appeals wrestled with the question of who should receive the excess proceeds from a foreclosure sale. We’ve blogged about some these past unreported decisions here and here. ...more
Courts overseeing receivers generally enjoy broad discretion in directing and approving a receiver’s proposed actions. But does that authority extend to a receiver not only granting a super-priority lien ahead of existing...more
Preference actions have been vexing creditors for as long as the Bankruptcy Code has been around. Indeed, a creditor who receives a pre-petition transfer in violation of the preference statute may have to give the transferred...more
That pesky excess sale proceeds statute, A.R.S. § 33-727, is making waves again. We previously blogged about this statute... In the prior post, we explained that excess sale proceeds (i.e., a foreclosure sale price greater...more
Although legal in many states, marijuana remains illegal under federal criminal law. See 21 U.S.C. § 856(a)(1). One would think that engaging in illegal activity under federal criminal law would preclude relief under federal...more
5/21/2019
/ Appeals ,
Bad Faith ,
Bankruptcy Code ,
Bankruptcy Court ,
Bankruptcy Plans ,
Chapter 11 ,
Commercial Leases ,
Commercial Property Owners ,
Creditors ,
Debtors ,
Federal Crimes ,
Landlords ,
Marijuana ,
Marijuana Related Businesses ,
Mismanagement ,
Motion to Dismiss ,
Reorganizations
The Arizona Court of Appeals recently held that any successful plaintiff in a forcible detainer action (i.e., an eviction action) may recover an award of its attorneys’ fees and costs incurred at trial under A.R.S. §...more
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
7/16/2018
/ Anti-Deficiency Provisions ,
Appeals ,
Banking Sector ,
Borrowers ,
Creditors ,
Deed of Trust ,
Dismissal With Prejudice ,
Foreclosure ,
Homeowners ,
Homeowners Association (HOA) ,
Mortgage Lenders ,
Mortgages ,
Property Liens ,
Real Estate Transactions ,
Sheriffs Sale
Lenders routinely accelerate notes after a default occurs, calling the entire loan due immediately. Less regularly, a lender may change its mind and unilaterally revoke the acceleration. Rarely, however, does a lender fail to...more
7/3/2018
/ Acceleration ,
Affirmative Action ,
Appeals ,
Creditors ,
Debtors ,
Deed of Trust ,
Foreclosure ,
Homeowners Association (HOA) ,
Liens ,
Loans ,
Mortgage Lenders ,
Notice of Default ,
Promissory Notes ,
Property Owners ,
Reversal ,
Revocation ,
Sheriffs Sale ,
Standing ,
Statute of Limitations ,
Trustee Sales
Arizona’s trustee’s sale statutory scheme provides for the waiver of all defenses and objections to a trustee’s sale that: (i) are not raised prior to the sale, and (ii) do not result in an injunction against the sale going...more
2/26/2018
/ Action to Quiet Title ,
Appeals ,
AZ Supreme Court ,
Borrowers ,
Damages ,
Deed of Trust ,
Injunctions ,
Lenders ,
Loans ,
Motion to Dismiss ,
Promissory Notes ,
Signatures ,
Trustee Sales ,
Trustees ,
Waivers ,
Wrongful Foreclosures
Nevada and Oregon join Utah in adopting the Uniform Commercial Real Estate Receivership Act (the “Act”) promulgated by the Uniform Law Commission...more
Pitting a receivership court’s inherent equitable powers against pre-existing property rights can lead to some pretty interesting questions. In SEC v. Wells Fargo Bank, N.A., 848 F.3d 1339, 1343-44 (11th Cir. 2017), the...more
9/25/2017
/ Appeals ,
Creditors ,
Equitable Relief ,
Late Claims ,
Lienholders ,
Perfected Security Interest ,
Proof of Claims ,
Receivership ,
Reversal ,
Secured Debt ,
Securities and Exchange Commission (SEC) ,
Wells Fargo
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
5/3/2017
/ Appeals ,
Banks ,
Choice-of-Law ,
Commercial Mortgages ,
Conflicts of Laws ,
Deed of Trust ,
Deficiency Judgments ,
Foreclosure ,
Lenders ,
Promissory Notes ,
Reversal ,
Statute of Limitations ,
Time-Barred Claims ,
Trustee Sales
Ever wonder what happens if a person challenges the timeliness of a trustee’s sale after the sale already occurred? Waiver of the argument of course! And, in the case of Wells Fargo Bank, N.A. v. Waltner, the affirmance of...more
Last year, the Ninth Circuit certified to the Washington Supreme Court the question of whether title companies owe a duty of care to third parties when they record legal instruments. ...more
Believe it or not, lenders can breach loan agreements too…and when they do, there can be significant consequences. In Great Western Bank v. LJC Dev., LLC, 726 Ariz. Adv. Rep. 21 (Ariz. Ct. App. Nov. 10, 2015), the Court of...more
As we previously reported here, several years ago the Uniform Law Commission (the “ULC”) (the organization that drafted such favorites as the Uniform Commercial Code and the Uniform Arbitration Act) determined that states...more
In the world of real property taxes, Valuation + Classification = Assessed Valuation. Sounds simple, right? The County Assessor determines the first factor, valuation (subject to certain guidelines under applicable Arizona...more
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
This is precisely the question that the Ninth Circuit recently certified to the Washington Supreme Court in Centurion Properties III, LLC v. Chicago Title Ins. Co.
Facts of the Case -
In this case, Centurion...more
8/19/2015
/ Appeals ,
Commercial Bankruptcy ,
Default ,
Duty of Care ,
Escrow Holders ,
Escrow Instructions ,
Junior Liens ,
Mortgages ,
Negligence ,
Recording Acts ,
Senior Lenders ,
Summary Judgment ,
Title Insurance ,
WA Supreme Court
The recent explosion in popularity of short-term vacation rentals through services such as Airbnb.com and VRBO.com not only provides terrifying horror stories about problem renters (google it if you’re interested), but also...more
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
On March 31, 2015, the Arizona Court of Appeals held in AEA Federal Credit Union v. Yuma Funding, Inc., that it lacked jurisdiction to hear an appeal from an order declining to set aside an order appointing or releasing a...more
When no statute specifically authorizes a court-appointed receiver to sell real property, what type of sale is it? The Supreme Court of Nevada recently addressed this question, holding that “a receiver sale of real property...more