Can a Receiver Prime and Strip Liens Against Real Property?

Posted on August 31, 2021 by Ben Reeves

By:  Ben Reeves 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 liens, but also selling the … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

If You Purchase a House at an HOA Lien Foreclosure, Are You Entitled to Excess Sale Proceeds?

Posted on November 12, 2019 by Ben Reeves

By: Ben Reeves That pesky excess sale proceeds statute, A.R.S. § 33-727, is making waves again. We previously blogged about this statute here. In the prior post, we explained that excess sale proceeds (i.e., a foreclosure sale price greater than … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Is a Bankruptcy Plan that Violates Federal Criminal Law Proposed in Bad Faith?

Posted on May 20, 2019 by Ben Reeves

By: Ben Reeves 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 bankruptcy law. And, … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article:

Attorneys’ Fees Are Available in Arizona Eviction Actions

Posted on November 30, 2018 by Ben Reeves

By: Ben Reeves 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. § 12-1178(A). … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article:

Everyone Wins When a Foreclosure Sale Generates Excess Proceeds

Posted on July 13, 2018 by Ben Reeves

By: Ben Reeves Introduction 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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article:

Not so Fast! How Does Revoking Acceleration of a Note Impact the Statute of Limitations?

Posted on July 2, 2018 by Ben Reeves

By: Ben Reeves Introduction 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 foreclose on … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

What Types of “Damages Claims” Survive a Trustee’s Sale?

Posted on February 23, 2018 by Ben Reeves

By: Ben Reeves Introduction 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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

Oregon and Nevada Adopt the Uniform Commercial Real Estate Receivership Act

Posted on January 4, 2018 by Ben Reeves

By:  Ben Reeves Nevada and Oregon join Utah in adopting the Uniform Commercial Real Estate Receivership Act (the “Act”) promulgated by the Uniform Law Commission.  We have been following the development of the Act since its drafting stages.  If you want more … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article:

The Contributors to This Blog Are Pleased to Announce That….

Posted on November 2, 2017 by Ben Reeves

Snell & Wilmer’s Real Estate Litigation Group, which provides the content for The Real Estate Litigation Blog, is pleased to announce that it has been recognized in both the national and metropolitan rankings by U.S. News Media Group and Best … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Arizona Supreme Court Clarifies Area Variance Standard; Property Owners May Obtain an Area Variance When Special Circumstances Existed at Purchase

Posted on October 10, 2017 by Ben Reeves

By:  Nick Wood, Adam Lang, Noel Griemsmann, and Brianna Long In Pawn 1st v. City of Phoenix, the Arizona Supreme Court rejected a Court of Appeals rule that would have unduly restrained alienation of property in Arizona. The Court of Appeals … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

What Happens When a Secured Creditor Files a Late Claim in an Equity Receivership?

Posted on September 22, 2017 by Ben Reeves

By: Ben Reeves 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 Eleventh Circuit recently examined … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

RICO Madness: The Nuisance of Owning and Operating a Marijuana Facility

Posted on July 21, 2017 by Ben Reeves

By:  Bob Henry On June 7, 2017, the Tenth Circuit Court of Appeals issued its opinion in Safe Streets Alliance, et al. v. Hickenlooper, et al., (No. 16-1048), an opinion that could open the doors to property use litigation involving … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!

Posted on May 2, 2017 by Ben Reeves

By: Ben Reeves 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. … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

What is the Effect of an Untimely Challenge to the Timeliness of a Trustee’s Sale?

Posted on April 11, 2017 by Ben Reeves

By: Ben Reeves 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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Utah Becomes First State to Enact the Uniform Commercial Real Estate Receivership Act

Posted on March 27, 2017 by Ben Reeves

By:  David Leta On March 25, Utah became the first state to enact the Uniform Commercial Real Estate Receivership Act (“UCRERA”) which was drafted by the National Conference of Commissioners on Uniform State Laws (the “Conference”) and adopted by the … Continue reading →

Author: Ben Reeves | Leave a comment

Share this Article:

Washington Answers the Question of Whether Title Companies Owe a Duty of Care to Third Parties…

Posted on September 14, 2016 by Ben Reeves

By: Ben Reeves Last year (as we blogged about here and wrote a more in depth Law360 article about here), the Ninth Circuit certified to the Washington Supreme Court the question of whether title companies owe a duty of care … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

Guarantors’ “Lost Profits” Completely Offset Lender’s Deficiency Claim

Posted on January 8, 2016 by Ben Reeves

By: Ben Reeves 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), … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

The Uniform Law Commission Approves the Uniform Commercial Real Estate Receivership Act

Posted on December 15, 2015 by Ben Reeves

By: Ben Reeves 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 would benefit from a … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

It just got a little bit easier to enforce judgment liens

Posted on October 20, 2015 by Ben Reeves

By:  Ben Reeves 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 to … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article:

Does a title company owe a duty of care to third parties in the recording of legal instruments?

Posted on August 18, 2015 by Ben Reeves

By: Ben Reeves 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 Properties III, LLC … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

HOA Super Priority Legal Battles Continue in the Silver State: What Senate Bill 306 Means for Nevada HOAs, Lenders and Homeowners

Posted on July 29, 2015 by Ben Reeves

By:  Aaron D. Ford and Karl O. Riley In 1991, the Nevada Legislature enacted the Uniform Common-Interest Ownership Act (UCIOA) which had been promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) (the Statute). This law provides … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

Are Short-Term Vacation Rentals Legal?

Posted on July 9, 2015 by Ben Reeves

By: Ben Reeves 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 raises serious questions about the … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article:

Guarantors Can Waive Anti-Deficiency Protections

Posted on June 22, 2015 by Ben Reeves

By:  Richard H. Herold and Ben Reeves 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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

If Receiver’s Sales Aren’t Foreclosures, What Are They?

Posted on March 20, 2015 by Ben Reeves

By:  Ben Reeves & Bob Olson 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 … Continue reading →

Author: Ben Reeves | 1 Comment Tagged , , , ,

Share this Article:

Are Vacant Lots Protected Under Arizona’s Anti-deficiency Statutes?

Posted on February 11, 2015 by Ben Reeves

By:  Ben Reeves No, of course not.  Arizona’s anti-deficiency statutes only prohibit deficiency judgments after a trustee’s sale of a “dwelling”.  Under no definition can a vacant lot constitute a “dwelling”.  This was the Arizona Supreme Court’s holding in BMO … Continue reading →

Author: Ben Reeves | 2 Comments Tagged , , , ,

Share this Article:

Can an Unsigned Minute Entry Create a Judgment Lien?

Posted on January 22, 2015 by Ben Reeves

By:  Ben Reeves It appears that 2014 was a banner year for Arizona law on judgment liens.  Indeed, we recently posted about the Lewis v. DeBord decision, which invalidates judgment liens vis-à-vis third-party purchasers if the judgment creditor fails to … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Update – Prospective Waivers of “Fair Market Value” Hearings are Definitely Void.

Posted on January 9, 2015 by Ben Reeves

By:  Ben Reeves In 2013, we blogged about the Arizona Court of Appeals’ determination that prospective contractual waivers of “fair market value” hearings are unenforceable as a matter of public policy.  The link to our prior blog post is here.  … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

It just got a little bit harder to enforce judgment liens

Posted on December 16, 2014 by Ben Reeves

By:  Ben Reeves Introduction As everyone knows, the enactment of the Statute of Westminster II in 1285 ushered the concept of a “judgment lien” into English law.  The statute – for the first time in English legal history – authorized … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

Vendees’ Liens—Construction Lenders Beware!

Posted on October 31, 2014 by Ben Reeves

By:  David A. Sprentall A recent Arizona Court of Appeals decision highlights a lien priority risk for secured construction lenders when the financed project fails. The problem—known as a “vendee lien”—is most likely to arise when up-front deposits are paid by … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Lenders Beware: the Nevada Supreme Court Holds That Foreclosures of Homeowners’ Association Liens May Extinguish First Priority Deeds of Trust

Posted on September 30, 2014 by Ben Reeves

By:  Bob L. Olson 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 as NRS … Continue reading →

Author: Ben Reeves | 1 Comment Tagged , , , ,

Share this Article:

A Subsequent Developer has no Ability to Force a Public Body to Call an Abandoning Developer’s Performance Bonds for Infrastructure Improvements.

Posted on August 19, 2014 by Ben Reeves

The Arizona Court of Appeals decided on July 22, 2014 that a developer cannot compel a public entity to call its performance bonds to complete infrastructure improvements on a construction project that a prior developer abandoned due to bankruptcy.  Ponderosa … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Guarantors Remain Liable for “Carve-out” Obligations, Despite Non-recourse Loan

Posted on July 31, 2014 by Ben Reeves

By:  Ben Reeves Introduction Believe it or not, guaranty contracts mean what they say.  If a guarantor agrees to reimburse a lender for misappropriated security deposits, unpaid taxes, and the cost of enforcement, then – not surprisingly – courts will … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

Borrowers Can Avoid Liability Even After a Trustee’s Sale

Posted on May 28, 2014 by Ben Reeves

By:  Ben Reeves Since a lender must have a valid debt and valid lien to conduct a trustee’s sale, a borrower that allows the foreclosure sale to occur impliedly agrees that the debt and lien are valid.  In Madison v. … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Unmitigated Waivers: Guarantors Remain Liable Despite 4-Year Delay in Foreclosure Sale

Posted on May 14, 2014 by Ben Reeves

By:  Ben Reeves If a lender delays foreclosure allowing years of default interest to accrue such that a guarantor’s obligation increases from $6 million to $12 million, should the guarantor remain on the hook for the full $12 million?  In … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , , ,

Share this Article:

Amendments to Arizona’s Anti-deficiency Statute Exclude Homebuilders from Anti-Deficiency Protection

Posted on April 28, 2014 by Ben Reeves

By:  Ben Reeves Last Tuesday, April 20, 2014, Arizona’s Governor, Jan Brewer, signed HB 2018 into law.  This bill closes a long-standing loophole that allowed commercial homebuilders to take advantage of Arizona’s anti-deficiency statute, even though the statute was originally … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

A Section 363 Sale Does NOT Transfer Property Free and Clear of an Equitable Servitude

Posted on April 1, 2014 by Ben Reeves

By:  Ben Reeves Sales in bankruptcy court under 11 U.S.C. § 363 (called “363 Sales”) are often used to sell property during a bankruptcy case.  The 363 Sale process provides an efficient procedure to liquidate estate property and offers several … Continue reading →

Author: Ben Reeves | 1 Comment

Share this Article:

Not All Property Acquired Post-Petition is Safe from Creditors

Posted on March 3, 2014 by Ben Reeves

By:  Ben Reeves Although property obtained by a debtor after filing for bankruptcy is usually safe from creditors, a recent case from the Ninth Circuit Bankruptcy Appellate Panel allowed a Chapter 7 Trustee to sell real property obtained by the … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Mortgage Lenders Can’t Jump Ahead of Mechanic’s Liens

Posted on February 11, 2014 by Ben Reeves

By:  Ben Reeves In Weitz Co., LLC v. Heth, 223 Ariz. 442, 314 P.3d 569 (Ct. App. Nov. 26 2013), the Arizona Court of Appeals held that the plain language of Arizona’s mechanic lien statute, A.R.S. § 33-992(A), does not … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

The EPA Approves New Environmental Due Diligence Standard

Posted on February 7, 2014 by Ben Reeves

By:  Patrick Paul On December 30, 2013, the United States Environmental Protection Agency (EPA) issued its final rulemaking recognizing the newly amended ASTM standard practice for Phase 1 Environmental Site Assessments, E 1527-13 as satisfying the agency’s All Appropriate Inquiries (AAI) … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

California Amends its Anti-Deficiency Statute

Posted on February 3, 2014 by Ben Reeves

By:  Ben Reeves 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 consumer / residential real estate issue, only … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article:

Guarantors Beware! A.R.S. § 33-814 May Not Save You from a Deficiency Judgment

Posted on November 15, 2013 by Ben Reeves

By:  Ben Reeves In First Credit Union v. Courtney, 309 P.3d 929, 669 Ariz. Adv. Rep. 18 (Ct. App. 2013), the Arizona Court of Appeals rejected three creative arguments that A.R.S. § 33-814 protected the guarantors from paying on their guaranty.  … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

The Uniform Law Commission Makes Progress Drafting a Model Act on the Appointment and Powers of Real Estate Receivers

Posted on October 31, 2013 by Ben Reeves

By:  Ben Reeves If all goes as planned, the Uniform Law Commission will finalize and promulgate a model act dealing with the appointment and powers of commercial real estate receivers at some point in 2015.  Last month, the Drafting Committee … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Can You Waive the Right to a “Fair Market Value” Hearing?

Posted on September 13, 2013 by Ben Reeves

By:  Ben Reeves We finally have an answer to the question of whether parties can contractually waive the right to a “fair market value” hearing under Arizona law – and the answer, according to the Court of Appeals – is … Continue reading →

Author: Ben Reeves | 1 Comment Tagged , , , ,

Share this Article:

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

Posted on September 4, 2013 by Ben Reeves

By:  Ben Reeves & Julie Maurer 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. … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

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

Posted on August 16, 2013 by Ben Reeves

By:  Ben Reeves 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 … Continue reading →

Author: Ben Reeves | 1 Comment Tagged , , ,

Share this Article:

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

Posted on July 12, 2013 by Ben Reeves

By:  Ben Reeves 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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , ,

Share this Article:

A Person Owning a Fractional Interest in a Vacation Home is Protected by Arizona’s Anti-deficiency Statute

Posted on June 26, 2013 by Ben Reeves

By:  Ben Reeves In Independent Mortgage v. Alaburda, the Arizona Court of Appeals held that Arizona’s anti-deficiency statute, A.R.S. § 33-814(G), precluded a lender from suing its borrowers for a deficiency after foreclosing on the borrowers’ fractional interest in a … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

Green construction sounds great, but…

Posted on May 28, 2013 by Ben Reeves

It isn’t always easy being green. Snell & Wilmer partner Marc Erpenbeck talks about emerging litigation issues generated by the proliferation of green construction projects in this informative article entitled “Understanding LEEDigation, The fast-growing trend of GREEN building spurs new … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , ,

Share this Article:

A.R.S. § 33-814(A) and Bankruptcy Proofs of Claim: To File or Not to File…Conflicting Cases Leave Creditors With No Clear Answer

Posted on May 20, 2013 by Ben Reeves

By: Ben Reeves Under Arizona law, does a secured creditor need to file a deficiency action within 90 days after a trustee’s sale to preserve the unsecured portion of its claim in a bankruptcy case? Or is filing (or amending) … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , , , ,

Share this Article:

Arizona Residential Landlords in Foreclosure – Expanding the Duty to Notify Tenants

Posted on May 6, 2013 by Ben Reeves

By: Bob Henry The Arizona Residential Landlord Tenant Act, A.R.S. § 33-1301 et seq., already requires landlords to provide written notice (with specific language) to tenants of a “potential foreclosure” on the property if a “foreclosure action” has been “initiated” … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , , , , , ,

Share this Article:

Introducing the Snell & Wilmer Real Estate Litigation Blog

Posted on April 25, 2013 by Ben Reeves

The Snell & Wilmer Real Estate Litigation Group is proud to announce the launch of its new blog.  After decades of handling commercial disputes and trials involving real estate, the Group was officially formed in 2008.  The firm’s real estate … Continue reading →

Author: Ben Reeves | Leave a comment Tagged , ,

Share this Article: