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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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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More Help For Arizona’s Restaurant & Hospitality Industry On the Way

By Patrick Paul On January 5, 2021, Governor Ducey announced the allocation of $2 million in additional funding to assist local restaurants and other dining establishments expand outdoor dining, protect patrons and staff, and limit the spread of COVID-19. Consistent … Continue reading

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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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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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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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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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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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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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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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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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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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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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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

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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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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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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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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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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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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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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

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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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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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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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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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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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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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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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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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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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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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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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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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Guarantors Can Waive Anti-Deficiency Protections

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

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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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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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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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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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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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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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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

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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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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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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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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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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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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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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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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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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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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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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

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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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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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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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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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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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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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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

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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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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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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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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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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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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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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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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

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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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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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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

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