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About This Blog
Welcome to the Snell & Wilmer real estate litigation blog. Check back here often for useful news and information about current topics involving real estate litigation. We hope that you will find the blog both timely and helpful, and we invite you to join the discussion by posting comments about the articles and contacting the authors with your thoughts about the posts.
Real Estate Litigation Group Members and Blog Contributors
- Bob Henry
- Kevin Parker
- Matt Fischer
- Adam Lang
- Cory Braddock
- Benjamin Reeves
- Erica Stutman
- Patrick Paul
- Rick Erickson
- Ginny Olmstead
- Neal McConomy
- Michael E. Lindsay
- Bob L. Olson
- Nathan G. Kanute
- Sean M. Sherlock
- Lyndsey Torp
- Anthony Carucci
- Luke Mecklenburg
- Jon Frank
- Kevin Walton
- Lauren Munsell
- Lauren Podgorski
- Addy Colton
- John Sarager
- Ian Douglas
- David Rao
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Recent Posts
- More Help For Arizona’s Restaurant & Hospitality Industry On the Way
- Married Couple’s Acquisition of Title as Joint Tenants Does Not Rebut the Presumption of Community Property
- Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado
- Statute of Limitations Bars Lender’s Subsequent Action to Quiet Title Against Junior Lienholder Mistakenly Omitted from Initial Judicial Foreclosure Action
- A Landlord’s Guide to the Center for Disease Control’s Eviction Moratorium
Topics
- Anti-deficiency Statute
- Bankruptcy
- Commercial Real Estate Industry
- Construction and Development
- Environmental
- Evictions
- Foreclosures
- Guaranty Contracts
- Judgment Liens
- Medical Marijuana
- Real Estate and Bankruptcy
- Real Estate Appraiser Litigation
- Real Estate Broker Litigation
- Real Estate Purchase/Sale Transaction Litigation
- Real Estate Receivers
- Statutes Affecting Real Estate
- Title Insurance
- Uncategorized
- Zoning
Statute of Limitations Bars Lender’s Subsequent Action to Quiet Title Against Junior Lienholder Mistakenly Omitted from Initial Judicial Foreclosure Action
By: Lyndsey Torp
A recently issued opinion by the Court of Appeal, Fifth Appellate District tells a cautionary tale regarding a lender’s failure to name a junior lienholder in its initial judicial foreclosure action.
In Cathleen Robin v. Al Crowell, — Cal.Rptr.3d —-, 2020 WL 5951506, plaintiffs sued defendant, a junior lienholder, for quiet title, having failed to name him in the initial judicial foreclosure action. Defendant raised the statute of limitations defense, but the trial court found in favor of plaintiffs. The court of appeal reversed, holding that the 60-year statute of limitations which the trial court applied only applied to a nonjudicial trustee’s sale, and the trial court could not exercise the trustee’s power of sale after the expiration of the statute of limitations on a judicial action to foreclose.… Read More »
Author:
Lyndsey Torp
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Tagged Deed of Trust, foreclosure, judicial foreclosure, lender, lien, lienholder, nonjudicial foreclosure, statute of limitation
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California Judicial Council Votes to Rescind Prohibitions on Eviction and Foreclosure Proceedings
By: David Rao and Lyndsey Torp
The California Judicial Council’s emergency rules staying evictions and judicial foreclosures are coming to an end.
On March 27, 2020, the Governor of California issued executive order N-38-20, giving the Judicial Council emergency authority to act in response to the COVID-19 pandemic. On April 6, 2020, the Judicial Council of California voted to approve temporary emergency rules of court. Rule 1 prohibited the issuance of a summons, or the entering of a default, in an eviction action for both residential and commercial properties except as necessary to protect public health and safety. Rule 1 also continued all pending unlawful detainer trials for at least 60 days, with no new trials being set until at least 60 days after a request was filed.… Read More »
Author:
Lyndsey Torp
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Tagged #evictions, emergency rules, foreclosures, Judicial Council, moratorium
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Arizona Governor Ducey’s Executive Order on Residential Eviction Actions
By: Bob Henry
As part of the State of Arizona’s response to the current public health crisis, on March 24, 2020, Arizona Governor Ducey issued Executive Order 2020-14, titled “Postponement of Eviction Actions.” A copy of the Executive Order is linked here: https://azgovernor.gov/executive-orders Residential landlords considering taking any action against tenants, including evictions, should be aware of this Order before proceeding.
In summary, the Order effectively requires all Arizona law enforcement officers who are typically charged with enforcing “eviction action orders” (from Arizona courts) to “temporarily delay enforcement” of such orders in various circumstances, including for tenants who are quarantined, or who are residing with others who are quarantined, because of COVID-19 (including self-quarantines pursuant to orders from licensed medical providers) or for tenants who have a health condition that “makes them more at risk for COVID-19 than the average person.” The Order also requires such actions to be delayed if the tenant has “suffered a substantial loss of income resulting from COVID-19” due to job loss, reduction in compensation, and similar economic problems arising out of the pandemic. … Read More »
Author:
Bob Henry
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Tagged Arizona residential evictions. Executive Order 2020-14
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If You Purchase a House at an HOA Lien Foreclosure, Are You Entitled to Excess Sale Proceeds?
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 the lien being foreclosed) must be used to pay other lien creditors, in full, before the owner receives anything. Recently, the Arizona Court of Appeals held that creditors also take excess sale proceeds before the person who purchased the property at foreclosure. The case, Vista Santa Fe Homeowners Association v. Millan, No. 1 CA-CV 18-0609 (Ct.… Read More »
Author:
Ben Reeves
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Tagged Excess Sale Proceeds, foreclosure, HOA Lien, real estate litigation
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Short-Term Rental Legislation & Litigation On the Way!
The advent of the shared economy in the real estate context has provided homeowners and investors alike with expanded opportunities to generate revenue from the use of their real estate. Airbnb and VRBO are two of the most popular companies facilitating short-term rental availability. The rapid growth in this shared real estate economy has served as a disruptor of sorts to the traditional hotel and hospitality industry, causing that industry to revisit its own models in order to better compete.
The popularity of short-term rental use, however, has created a whole new set of problems about which property owners, state and local governments, renters, and those impacted by the explosion of short-term rentals should be aware.… Read More »
Author:
Patrick J. Paul
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Tagged #2672, #partyhouse, #scottsdale, #shorttermrental
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What If Your CCP 998 Offer is Silent on Costs?
By: Tony Carucci
In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer is that “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” Cal.… Read More »
Author:
acarucci
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Tagged commercial real estate, construction, contractor, developer, foreclosure, Guarantor, guaranty, real estate, real estate litigation
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Attorneys’ Fees Are Available in Arizona Eviction Actions
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). See Bank of New York v. Dodev, 1 CA-CV 17-0652 (Ct. App. Nov. 20, 2018). Prior to this decision, caselaw held that fees were only awardable in actions arising out of the termination of a residential lease. RREEF Mgmt. Co. v. Camex Prods., Inc., 190 Ariz. 75, 945 P.2d 386 (Ct. App. 1997). Changes to the statute, however, rendered the prior caselaw obsolete.… Read More »
Author:
Ben Reeves
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Tagged Arizona, Eviction Action, real estate litigation
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Everyone Wins When a Foreclosure Sale Generates Excess Proceeds
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 paid in full. So, in truth, not everyone wins when a foreclosure sale brings in too much money. Amusingly, in Steinmetz v. Everyone Wins, the court awarded excess sale proceeds to….you guessed it…Everyone Wins, despite the owner’s argument that Arizona’s anti-deficiency statutes barred it from recovering anything.
In addition to supplying a clever title for this post, Steinmetz v. Everyone Wins provides an important analysis of how Arizona’s anti-deficiency statutes, homeowner’s assessment lien statutes, and foreclosure statutes apply when determining who “wins” when it comes to excess sale proceeds.… Read More »
Author:
Ben Reeves
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Tagged Excess Sale Proceeds, foreclosure, real estate litigation
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What Types of “Damages Claims” Survive a Trustee’s Sale?
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 the sale going forward. See A.R.S. § 33-811(C). In other words, if you have an objection to a trustee’s sale, you must seek and obtain an injunction prior to the sale or your objection will be waived.
Arizona’s Court of Appeals previously held that notwithstanding this statutory waiver, “common law” defenses to repayment of the debt survive a non-judicial foreclosure even in the absence of an injunction prior to the sale. … Read More »
Author:
Ben Reeves
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Tagged ARS 33-811, foreclosure sale, real estate litigation, trustee's sale, wrongful foreclosure
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