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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.
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Recent Posts
- The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona
- Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.
- The Arizona Supreme Court Confirms that Judgment Liens Attach to Homestead Property
- Don’t Be Lazy with Your Tenders
- Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?
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
When Is A Project Delay Material and Actionable?
By Rick Erickson Welcome to 2022! This year, the construction industry will undoubtedly reflect on the last two years as unprecedented times plagued by construction project delays. The COVID-19 pandemic contributed to suspension of work and closure of construction projects … Continue reading
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Rick Erickson
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Tagged #COVID, breach of contract, construction, construction bonds, construction defect litigation, construction law, construction lending, construction litigation, construction management, contractor, Covid-19, damages, design team, owner, project manager, real estate litigation, residential construction, subcontractor
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The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction
By: Luke Mecklenburg Last year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use … Continue reading
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Luke Mecklenburg
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Tagged Colorado Supreme Court, prescriptive easements, Real Property Litigation
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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 … Continue reading
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Bob Henry
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Tagged Arizona residential evictions. Executive Order 2020-14
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Airbnb Declares End to Party!
By Patrick Paul As municipalities around the country evaluate changes to their respective codes in an effort to exert greater control over bad actors in the vacation rental market, Airbnb announced on November 2nd that it is banning party houses. … Continue reading
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Patrick J. Paul
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Tagged Airbnb, mansion party, nuisance party, party house
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Foreclosure Deficiency: Construction Loan vs. Home Improvement Loan
By: Kevin J. Parker 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 … Continue reading
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Kevin Parker
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Tagged anti-deficiency, Deficiency judgment, foreclosure, real estate litigation
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Know your Obligations: Colorado’s Statutory Expansions of the Implied Warranty of Habitability Are Now in Effect
The Colorado legislature had a busy session this year. Among the several significant bills it enacted, HB1170 strengthens tenant protections under the implied warranty of habitability. It became effective on August 2, 2019, so landlords and tenants alike are now … Continue reading
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Luke Mecklenburg
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Tagged Colorado leasing, HB 1170, Landlord Obligations, Warranty of Habitability
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Ten Years After Colorado’s Adverse Possession Amendment: a brief look backwards and forwards
In response to national outrage over an infamous adverse possession case in Boulder, Colorado, in which a lawyer and a judge intentionally took their neighbors’ undeveloped land through adverse possession, the Colorado legislature amended the state’s adverse possession statute (C.R.S. … Continue reading
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Luke Mecklenburg
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Tagged adverse possession, colorado real property, CRS 38-41-101, real estate, real estate litigation, real property, residential, Snell & Wilmer
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Wait, You Want An HOA?! Restricting Implied Common-Interest Communities
By: Neal McConomy While the butt of many jokes and a thorn in the side of some property owners, homeowners associations (“HOAs”) serve the vital function of collecting and disbursing funds to care for and maintain common areas of residential … Continue reading
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nmcconomy
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Tagged CCIOA, common-interest communities, HOA, homeowner, homeowners association, homeowners' associations, real estate, real estate litigation, real property, residential, residential construction, residential real estate development
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Cybersecurity on Your Project: Why Not Follow National Security Strategy?
By Rick Erickson In its recent Cybersecurity Strategy, the U.S. Department of Homeland Security (DHS) defined “cyberspace” as “the independent network of information technology infrastructure, including the Internet, telecommunications networks, computers, information and communications systems, and embedded processors and controllers.” … Continue reading
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Rick Erickson
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Tagged breach of contract, builder, chief information officer, construction, construction law, construction management, contractor, cyber, cyber threat, cybersecurity, design team, DHS, electronically stored information, ESI, general contractor, homeland security, information systems, liability insurance, national security, national security strategy, network security, project manager, real estate, real estate development, risk management, subcontractor
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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 … Continue reading
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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 … Continue reading
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Ben Reeves
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Tagged ARS 33-811, foreclosure sale, real estate litigation, trustee's sale, wrongful foreclosure
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When Does a Contractor Legally Abandon a Construction Project?
By Rick Erickson Lately, we’ve been spending more time as litigators pursuing and defending claims of abandonment against contractors. It has become apparent that abandonment is often misinterpreted in its legal meaning and effect. Here are some thoughts on abandonment … Continue reading
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Rick Erickson
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Tagged abandon, abandonment, breach, breach of contract, claims, construction, construction litigation, contract, contractor, developer, legal excuse, licensing, owner, Registrar of Contractors, subcontractor
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Erasing Any Doubt: Arizona FED Actions Do Not Accrue Until Formal Demand for Possession is Tendered
By: Bob Henry Clearing up any lingering confusion, in Carrington Mortgage Services, LLC v. Woods, 767 Ariz. Adv. Rep. 4 (June 22, 2017), the Arizona Court of Appeals confirmed that residential forcible entry and detainer actions in Arizona accrue for … Continue reading
California Supreme Court Hands Victory to Private Property Owners Over Public Use
By: Sean M. Sherlock In 1970 the California Supreme Court held that, under certain circumstances, private property owners impliedly dedicate their property to the public if they permit the public to use it. Gion v. City of Santa Cruz (1970) … Continue reading
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Sean M. Sherlock
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Tagged implied dedication, private property, public use
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Appeals of Rulings by The Registrar of Contractors Must Be Timely Filed in Superior Court.
By Rick Erickson Recently in Johnson v. Arizona Registrar of Contractors, the Arizona Court of Appeals affirmed dismissal of a homeowner’s late appeal of an adverse decision by the Registrar of Contractors (“Registrar”). After successfully pursuing a complaint to suspend … Continue reading
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Rick Erickson
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Tagged appeals, contractor complaints, homeowners, judicial review, jurisdiction, recovery fund, Registrar of Contractors, residential construction
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Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!
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
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Ben Reeves
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Tagged choice-of-law provisions, deficiency action, real estate litigation, Statute of Limitations
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Colorado House Bill 1279 stalls over 120-day unit owner election period
With the session more than halfway through, the Colorado Legislature’s 2017 attempts at meaningful construction defect reform may fail again. This year, the Legislature did not attempt a single-bill construction defect overhaul like those that have failed over the last … Continue reading
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Luke Mecklenburg
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What is the Effect of an Untimely Challenge to the Timeliness of a Trustee’s Sale?
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
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Ben Reeves
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Tagged A.R.S. 33-811(C), Statute of Limitations, trustee's sale, waiver
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Arizona Supreme Court Holds a Credit Bid at a Trustee’s Sale Should Not be Credited to a Title Insurer Under a Standard Lender’s Title Policy To the Extent the Bid Exceeds the Collateral’s Fair Market Value
By: Richard H. Herold The Arizona Supreme Court recently addressed what impact, if any, a lender’s credit bid at an Arizona trustee’s sale has on an insurer’s liability under Sections 2, 7 and 9 of the standard’s lender’s title policy … Continue reading
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Richard Herold
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Tagged credit bid, Lender's title insurance, trustee's sale
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Federal Court Issues Permanent Injunction and Permanently Shuts Down Santa Ysabel’s Desert Rose Bingo
By: Anthony J. Carucci On December 12, 2016, Judge Battaglia of the United States District Court for the Southern District of California issued the Court’s long-awaited ruling on the State of California and Federal Government’s motions for summary judgment in … Continue reading
Sierra Pacific v. Bradbury goes unchallenged: Colorado’s six-year statute of repose begins when a subcontractor’s scope of work ends
It’s official: the October 20, 2016 deadline to petition for certiorari to the Colorado Court of Appeals on its decision in Sierra Pacific Industries, Inc. v. Bradbury has passed, so it appears that decision will stand. In Sierra Pacific, the … Continue reading
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Luke Mecklenburg
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California’s One-Action Rule May Apply to Federal Lenders
By: Anthony J. Carucci California’s one-action rule provides that “here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years … Continue reading
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acarucci
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Tagged anti-deficiency, commercial real estate, deficiency, foreclosure, foreclosures, Guarantor, guaranty, one-action rule, real estate, real estate litigation, real property
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Nevada Supreme Court Holds that Foreclosure Of HOA Lien Extinguishes Equal Priority HOA Lien.
By: Bob L. Olson In Nevada’s master-planned communities it is common for one home to be in multiple homeowners’ associations. In such cases there is generally a master association for the master-planned community and then sub-associations for specific developments within … Continue reading
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Bob L. Olson
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Tagged foreclosure, Homeonwers Associations, lien priority, NRS 116.3116, San Florentine, Southern Highlands
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Examining Denver’s new construction defect reform ordinance
Construction defect reform is a hot-button issue in Colorado. This is especially true along the booming Front Range, where rapidly increasing population has driven the prices of renting and buying property a mile high. Developers maintain that building condominiums is … Continue reading
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mlindsay
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Eminent Domain: Be Careful What You Ask For
By: Richard Herold and Patrick Paul The condemnation of property for public works may not always be as clean and easy as the government would like. Although local governments are often critical players in the cleanup and redevelopment of contaminated … Continue reading
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Richard Herold
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Tagged condemn, condemnation, eminent domain, environmental liability, real estate, real estate litigation, real property, seller disclosures, valuation
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Lenders Should Contract for the Right to Recover Lost Goodwill Proceeds when Commercial Property is taken in Eminent Domain
By: Anthony J. Carucci Business Goodwill Generally In California, the “goodwill” of a business “consists of the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting … Continue reading
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acarucci
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Tagged commercial real estate, condemnation, eminent domain, just compensation, lien, real estate, real estate litigation
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The Uniform Law Commission Approves the Uniform Commercial Real Estate Receivership Act
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
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Ben Reeves
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Tagged model receivership act, real estate litigation, receiver, Uniform Commercial Real Estate Receivership Act
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Statute of Frauds: (1) Email as “Writing” and (2) Email Signature as “Signature”
By: Kevin J. Parker Arizona, like most states, has a Statute of Frauds that essentially requires real estate related contracts to be both (1) in writing and (2) signed by the party to be charged. A.R.S. § 44-101. Questions often … Continue reading
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Kevin Parker
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Tagged electronic signature, real estate litigation, statute of frauds
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It just got a little bit easier to enforce judgment liens
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
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Ben Reeves
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Tagged judgment lien, Lewis v. DeBord, real estate litigation
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Homebuilders Welcome Recent Court Decisions
By: Patrick Paul Arizona homebuilders will welcome with open arms two recent legal rulings of substantial impact to their industry. In the first decision, on July 28, 2015, in Sullivan v. Pulte Home Corp., No. 1 CA-CV 14-0199, the Arizona … Continue reading
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Patrick J. Paul
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Tagged Clean Water Act, economic loss rule, homebuilder, Water of the United States
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HOA Super Priority Legal Battles Continue in the Silver State: What Senate Bill 306 Means for Nevada HOAs, Lenders and Homeowners
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
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Ben Reeves
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Tagged HOA Liens, Nevada, real estate litigation, SB 306, Super-Priority Liens
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New Landlords Should Not Ignore Arizona’s Requirement To Register With The County Assessor’s Office
By: Cory L. Braddock With ongoing price volatility in Arizona’s residential real estate market, homeowners may be tempted to become recreational landlords. Anyone considering renting their home, however, should be aware that Arizona law requires residential rental property owners to … Continue reading
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Cory Braddock
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Tagged Arizona residential properties, residential, tenant
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If Receiver’s Sales Aren’t Foreclosures, What Are They?
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
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Ben Reeves
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Tagged anti-deficiency, NRS 40.455, real estate litigation, receiver sales, U.S. Bank v. Palmilla
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Are Vacant Lots Protected Under Arizona’s Anti-deficiency Statutes?
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
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Ben Reeves
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Tagged A.R.S. 33-814, anti-deficiency, BMO v. Wildwood Creek, M&I v. Meuller, MidKansas v. Dynamic
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Can an Unsigned Minute Entry Create a Judgment Lien?
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
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Ben Reeves
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Tagged judgment lien, Lewis v. DeBord, real estate litigation, Sysco v. Hoskins
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Update – Prospective Waivers of “Fair Market Value” Hearings are Definitely Void.
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
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Ben Reeves
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Tagged A.R.S. 33-814, anti-deficiency, CAS 13-101 v. Loop 101, fair market value hearing, waiver
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It just got a little bit harder to enforce judgment liens
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
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Ben Reeves
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Tagged byers v. wik, judgment enforcement, judgment lien, Lewis v. DeBord, real estate litigation
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General Contractor’s Prospective Waiver Of Its Lien Rights Is Enforceable In California
By: Lyndsey Torp http://www.swlaw.com/attorneys/lyndsey_torp In another decision favoring lenders (See http://www.swlaw.com/blog/real-estate-litigation/2014/08/29/arizona-supreme-court-to-contractor-sorry-but-equitable-subrogation-of-a-banks-later-deed-of-trust-trumps-earlier-mechanics-lien-rights/), the California Court of Appeal, in an opinion published in September 2014, entitled Moorefield Construction, Inc. v. Intervest Mortgage Investment Company, et al., D065464, held an original contractor can … Continue reading
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Lyndsey Torp
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Tagged contractor, deed, foreclosure, lien, loan, mechanics, owner, subordination, waiver
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Lenders Beware: the Nevada Supreme Court Holds That Foreclosures of Homeowners’ Association Liens May Extinguish First Priority Deeds of Trust
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
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Tagged HOA Lien, Nevada, NRS 116.3116, real estate litigation, SFR Investments v. U.S. Bank
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Easements Made Easier: Building Pipelines with the Power of Eminent Domain Under the Natural Gas Act
By: Richard H. Herold Any person or entity seeking to construct a natural gas pipeline and successful in obtaining a certificate of convenience and necessity from the Federal Energy Regulatory Commission may exercise the power of eminent domain to obtain easements across … Continue reading
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Richard Herold
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Tagged condemnation, easements, eminent domain, natural gas act, pipelines
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Governmental Power and Property Lines
By: Neal McConomy On May 27, 2014, the Colorado Supreme Court issued its opinion in Town of Dillon v. Yacht Club Condos. Home Owners Ass’n, 2014 CO 37. Overturning the rulings of both the trial court and the Colorado Court … Continue reading
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nmcconomy
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Tagged health, litigation, municipal, ordinance, parking, police power, rational basis, rational relationship, real estate, real property, safety, welfare
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Guarantors Score Two Victories Before the Nevada Supreme Court.
By: Bob Olson and Nathan Kanute On May 29, 2013, the Nevada Supreme Court issued two decisions that all real estate lenders need to be aware of because they have the potential to eliminate the ability of a lender to … Continue reading
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Bob L. Olson
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Tagged deficiency, foreclosure, Guarantor, one-action rule
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Nevada Supreme Court and District Court Issue Decisions Regarding Nevada’s Limitations on Deficiency Judgments.
By: Bob Olson and Nathan Kanute In 2011 the Nevada Legislature enacted Assembly Bill 273 (“AB 273”) which amended NRS 40.459 by limiting deficiency judgments to the difference between the amount the lender paid to acquire the loan or obligation and … Continue reading
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Bob L. Olson
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Tagged AB 273, anti-deficiency, deficiency, Eagle SPE, foreclosure, Sandpointe
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Borrowers Can Avoid Liability Even After a Trustee’s Sale
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
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Ben Reeves
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Tagged A.R.S. 33-811(C), anti-deficiency, BT Capital, Moran AZ Financial v. Gotses
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Amendments to Arizona’s Anti-deficiency Statute Exclude Homebuilders from Anti-Deficiency Protection
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
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Ben Reeves
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Tagged A.R.S. 33-814, anti-deficiency, HB 2018, MidKansas v. Dynamic
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Legal Pot Leads to Possible Nuisance Suits, but Viability is Unlikely
By: Neal McConomy Almost four months into Colorado’s legalization of recreational marijuana for adults aged twenty-one and over, the weather is warming, windows are opening, and outdoor spaces are getting more use. All the while, a segment of the Colorado … Continue reading
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nmcconomy
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Tagged law, marijuana, nuisance, privacy, private, public, real property, recreational, residential, rights
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The Registrar is Changing the Game for Complaints Against Arizona Contractors
By Rick Erickson http://www.swlaw.com/attorneys/rick_erickson Sweeping changes at the Registrar of Contractors have the construction and real estate industries concerned and curious. The Registrar recently received some poor performance reports by the Auditor General and State Ombudsmen. As a result, the … Continue reading
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Rick Erickson
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Tagged administrative remedies, contractor complaints, contractor licensing, enforcement, Registrar of Contractors, regulation of contractors
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ABOR Fences Out a Property Owner’s Quiet Title Action
By: Cory L. Braddock In May of last year, the Arizona Court of Appeals determined that “the statute of limitations does not run against a plaintiff in possession who brings a quiet title action purely to remove a cloud on … Continue reading
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Cory Braddock
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Tagged petition to quiet title, statute of limitation
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Mortgage Lenders Can’t Jump Ahead of Mechanic’s Liens
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
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Ben Reeves
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Tagged equitable subrogation, mechanic's lien, real estate litigation, Weitz v. Heth
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California Amends its Anti-Deficiency Statute
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
Commercial Real Estate Broker Liens
Arizona, by statute, allows a commercial real estate broker in certain limited circumstances to record a lien against the owner’s real property which is the subject of the commission agreement, in order to protect the broker’s entitlement to their commission. … Continue reading
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Kevin Parker
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Tagged broker commissions, broker lien, real estate litigation
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Arizona Court of Appeals Holds That Certain Residential Developers Are Not Protected By The Anti-Deficiency Statute After Foreclosure Of A Deed Of Trust On Vacant Land
By Eric Spencer and Adam Lang 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 … Continue reading
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Adam Lang
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Tagged 33-814, anti-deficiency, borrower, deficiency, dwelling, homebuilders, Lang, lenders, Mueller, Spencer, vacant lot, Wildwood
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Arizona Residential Mortgage Brokers: Potential Additional Liability Exposure on the Horizon
by Bob Henry Arizona Senate Bill 1026, introduced by Senator Ableser, proposes some significant changes to the law governing Arizona’s residential mortgage brokers that could expand their potential liability arising out of their day-to-day business dealings. The bill proposes amendments … Continue reading
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Bob Henry
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Tagged Arizona Mortgage Broker Liability, S.B. 1026, Senate Bill 2026
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Guarantors Beware! A.R.S. § 33-814 May Not Save You from a Deficiency Judgment
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
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Ben Reeves
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Tagged anti-deficiency, ARS 33-814, First Credit Union v. Courtney, Guarantor
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The Uniform Law Commission Makes Progress Drafting a Model Act on the Appointment and Powers of Real Estate Receivers
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
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Ben Reeves
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Tagged model act, power to sell, real estate receiver, uniform law commission
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A Compilation and Summary of Real Estate Related Legislation Enacted by the 51st Arizona Legislature
On Friday June 14, 2013, at 12:59 a.m., on the 152nd day of the regular legislative session, the 51st Arizona Legislature adjourned sine die, or “without assigning a day for a further meeting or hearing.” Generally, except as otherwise noted … Continue reading
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Adam Lang
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Tagged bills, criminal trespass, deeds of trust, dilapidated, easements, flood control districts, flood protection districts, foreclosures, homeowners' associations, house, joint tenancy, legislators, legislature, mobile homes, mortgage insurance, planned communities, real estate, real estate licenses, real property, recreational vehicles, right-of-way, senate, state board of appraisal, statute
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Can You Waive the Right to a “Fair Market Value” Hearing?
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 A.R.S. § 33-814, CSA 13-101 Loop LLC v. Loop 101 LLC, fair market value hearing, real estate litigation, waiver
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Suing a Licensed Real Estate Professional May Require You to Complete and Turn In Your Homework.
By: Cory L. Braddock A lawyer must have a good faith belief, after reasonable inquiry, that a lawsuit he files is grounded in fact and warranted by existing law. Ariz. R. Civ. P. 11. In other words, lawyers violate Arizona’s … Continue reading
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Cory Braddock
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Tagged expert opinion, real estate agent, real estate broker
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A Non-Purchase Money Second Deed of Trust is Not Protected by Arizona’s Anti-deficiency Statute
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
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Ben Reeves
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Tagged Arizona, ARS 33-814, Helvitica Servicing v. Pasquan, real estate litigation, Wells Fargo v. Brewer
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A Lender Holding Two Liens Can Foreclose on the Senior Lien and Sue on the Junior Lien
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
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Ben Reeves
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Tagged merger of rights, Mid Kansas v. Dynamic Development, real estate litigation, Wells Fargo v. Riggio
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Protecting Your Project From Litigation: Limited Liability Company vs. Partnership
If you have multiple investors/owners, one of the benefits of using a Limited Liability Company (LLC) to own real property rather than using a partnership is that the LLC offers better protection of the real property from creditors of any … Continue reading
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Kevin Parker
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Tagged Limited Liability Company, LLC, real property
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The U.S. Supreme Court’s Latest Attempt to Differentiate a Fair Quid Pro Quo in the Developer’s Permitting Process From an Unconstitutional Taking
By: Rick Herold Introduction The U.S. Supreme Court has issued an important decision in an attempt to add clarity and help government land use planners understand the difference between reasonable requests and unreasonable demands rising to the level of unconstitutional … Continue reading
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Richard Herold
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Tagged condemnation, eminent domain, essential nexus, just compensation, land use, real estate litigation, rough proportionality, unconstitutional conditions, unconstitutional taking
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Arizona’s Anti-deficiency Statute, A.R.S. 33-814(G), Cannot be Prospectively Waived Says the Court of Appeals
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
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Ben Reeves
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Tagged A.R.S. § 33-814, anti-deficiency, Parkway Bank v. Zivkovic, real estate litigation, waiver
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A Person Owning a Fractional Interest in a Vacation Home is Protected by Arizona’s Anti-deficiency Statute
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
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Ben Reeves
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Tagged A.R.S. 33-814, anti-deficiency, dwelling, Independent Mortgage v. Alaburda
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The Clock Doesn’t Tick-Tock for Owners in Possession
By: Cory L. Braddock The Arizona Court of Appeals recent decision in Cook v. Town of Pinetop-Lakeside, 661 Ariz. Adv. Rep. 31 (App, May 28, 2013) reiterated its forty-three year old holding in City of Tucson v. Morgan, 13 Ariz. … Continue reading
Author:
Cory Braddock
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Tagged cloud on title, Cook v. Town of Pinetop-Lakeside, disputed title, quiet title, statute of limitation
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The Risk of Intent in Your Letter of Intent
By: Richard Herold Although the press frequently reports cavalierly on the execution of a “letter of intent” (“LOI”), as if it is a meaningless document, a LOI can be enforced if the parties intend to be bound, which turns primarily … Continue reading
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Richard Herold
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Tagged letter of intent, real estate, statute of frauds
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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
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
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Ben Reeves
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Tagged A.R.S. § 33-814, bankruptcy, In re Rader, In re Wright, Proof of Claim, trustee's sale, unsecured claim
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Arizona Residential Landlords in Foreclosure – Expanding the Duty to Notify Tenants
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
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Tagged A.R.S. § 33-1331, Arizona residential properties, foreclosures, landlord, lease, residential, tenant
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