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- In This Issue -

Introductory Comment

Coming Events

Recent Cases


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An ePublication of the Los Angeles County Bar Association
Volume 7, Number 8 • August 2012 • Archive of Past Issues
Real Property Home Page


Introductory Comment

Some more interesting cases this month arising from efforts by borrowers to get even with lenders who have the audacity to foreclose on their real property.

Sincerely,

Norm Chernin, Editor, Real Property Section Newsletter
E-mail address
: nchernin@firstam.com

Coming Events

SAVE THE DATE!!!
The Crocker Symposium will be held on October 30, 2012. There will be updates in later newsletters.

OTHER EVENTS:

Recent Cases

Another Little Known Benefit of Marrying a Lawyer
Where attorney and spouse own real property jointly, they may enter into an attorney-client relationship for the purpose of litigating dispute with neighboring property owners, thereby permitting the attorney spouse to recover attorney fees for contempt proceedings under Code of Civil Procedure Section 1218.
Rickley v. Goodfriend
filed July 30, 2012, Second District, Div. Seven
Cite as B234152
Full text click here

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Inspections of Residential Rental Property
Ordinance calling for annual inspections of all residential rental properties within city limits is not preempted by the State Housing Law where purpose of inspection is to determine whether the premises comply with the standards established under that law. Landlord lacks standing to assert constitutional privacy claims on behalf of tenant. Ordinance does not violate privacy rights in any event because it requires that inspection be either agreed to by landlord and tenant or ordered under an inspection warrant unless there is reason to believe that an immediate inspection is required for reasons of health and safety. Fees imposed on landlords to cover costs of inspections are not taxes and do not require voter approval.
Griffith v. City of Santa Cruz
filed July 16, 2012, Sixth District
Cite as H037088

Full text click here

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Mobile Home Parks
County's decision to deny application to convert mobile-home park from rental to condominium ownership, based in part on near-unanimous opposition of the mobile-home park residents as reflected in a survey of resident support, did not exceed county's authority under Government Code Section 66427.5, which lists extent of resident support as a factor to be considered and does not specify the weight to be given to such factor.
Goldstone v. County of Santa Cruz
filed July 17, 2012, Sixth District
Cite as H036273
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Mobile Home Rent Control
Civil Code Section 798.21(f)(1), which allows an owner whose mobile-home is not her principal residence to be covered by a local rent control ordinance if the rental agreement "limits or prohibits" the subletting of the park space, applied to owner whose original lease prohibited subletting, and who was not notified--as required by statute--of a change in park rules, which allowed subletting. Sec. 798.21(f)(2)--which allows an owner who has acquired a principal residence elsewhere to continue paying rent at the controlled rate, subject to a requirement that the owner "actively market and advertise the mobile-home for sale in good faith to bona fide purchasers for value"--does not require that there actually be a prospective BFP; plaintiff's marketing efforts were adequate where she put a "for sale" sign on her home, answered phone calls from prospective buyers, accepted a deposit, and allowed real estate agents to walk through her property.
Freeman v. Vista de Santa Barbara Associates LP
filed July 10, 2012, Second District, Div. Six
Cite as B230066
Full text click here

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Mortgage Lender Liability
Where lender sued following default, and borrower cross-complained against lender for breach of an alleged duty to notify borrower by a specified date as to whether lender intended to extend the loan, trial court correctly instructed jury that statements in lender's credit memoranda--contemplating that if, by the specified date a decision had not been made to extend the loan, the borrower should be notified of such decision by that date--did not by themselves create any such duty. Trial court correctly instructed jury that term sheet sent by lender to borrower did not, by itself, constitute a binding commitment to extend the loan on the terms stated therein, and did not, for purposes of a fraud or misrepresentation claim, constitute a representation or promise to extend the loan, where the face of the term sheet plainly stated that it was not a commitment, representation, or promise to renew the loan on the terms set forth therein.
SCC Acquistions Inc. v. Central Pacific Bank
filed June 25, 2012, publication ordered July 11, 2012, Fourth District, Div. Three
Cite as 2012 S.O.S. 3426

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Receivership
Trial court did not abuse its discretion in denying request by receiver--who was appointed at city's request to take charge of dilapidated building during the owner's incarceration--that the new owner of the property, who was the foreclosing lender, be ordered to pay all costs of the receivership. Lender did not seek appointment of the receiver or create the situation that required the receivership and only owned the property for less than four months out of the two-year receivership period, and the majority of receiver's work was performed before lender's ownership.
City of Chula Vista v. Gutierrez
filed June 4, 2012, publication ordered July 2, 2012, Fourth District, Div. One
Cite as D059364

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Residential Foreclosures
Borrower's allegations that she "was fully available to meet with" her lender to explore foreclosure options; that she hired attorneys or other representatives who telephoned and sent letters to lender that went unanswered; that lender failed and refused to evaluate her finances, to advise her of her right to meet with lender to discuss foreclosure avoidance options, and to provide her with the phone number of a government agency that might assist her; and that lender did not contact her regarding her options until after it recorded Notice of Default were sufficient to plead a cause of action under Civil Code Section 2923.5--which imposes certain duties on residential lenders prior to initiating non-judicial foreclosure. There is a private right of action for noncompliance with Sec. 2923.5. The National Bank Act does not preempt Sec. 2923.5.
Skov v. U.S. Bank National Association
filed June 8 , 2012, publication ordered July 3, 2012, Sixth District
Cite as H036483

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Trust Deed Foreclosure
Defendants' conduct in foreclosing on plaintiffs' home, contrary to an alleged promise not to do so if vacant land pledged by plaintiffs as security for the same loan were appraised at more than a specified amount, was not "unfair" within the meaning of the Unfair Competition Law where plaintiffs did not allege that such conduct violated any constitutional, statutory, or regulatory provision, and where any such allegation would have contradicted the plain terms of the deeds of trust. Plaintiffs failed to plead a claim for intentional infliction of emotional distress where there was no allegation that any of the defendants threatened, insulted, abused, or humiliated the plaintiffs or engaged in other conduct that could be considered outrageous. Recording of notice of default by an agent of the beneficiary rather than by the original trustee named in the deed of trust was permitted by Civil Code Section 2924.
Wilson v. Hynek
filed June 20, 2012, publication ordered July 16, 2012, Fourth District, Div. One
Cite as D057620
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Truth in Lending Act
Loan servicer's failure to respond to plaintiff's correspondence regarding ownership of his home loan, sent in an effort to avoid foreclosure, did not amount to a violation of the Truth in Lending Act or of covenant of good faith and fair dealing, because the loan servicer was not legally required to respond.
Gale v. First Franklin Loan Services
filed July 12, 2012
Cite as 09-16498
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Los Angeles County Bar Association
2012 Real Property Section Newsletter

 

REAL PROPERTY SECTION PUBLICATIONS
Daniel L. Goodkin, Editor, Real Property Section Review
Norman A. Chernin, Editor, Real Property Section Newsletter

SECTION OFFICERS
Chair
Theresa C. Tate

First Vice Chair
Sarah V. J. Spyksma

Second Vice Chair
Norman A. Chernin

Treasurer
Brant Dveirin

Secretary/Crocker Chair
Susan J. Booth

Immediate Past Chair
Gregg J. Loubier

Section Administrator
Fatima Jones

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
Claire Hervey Collins
Caroline Dreyfus
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon
Ryan Iwasaka

Linda S. Koffman
Trudi J. Lesser
Peter J. Niemiec
Robert C. Pearman
Leslie D. Reed
D. Eric Remensperger
Michael G. Smooke
Linda E. Spiegel
Andrew J. Yamamoto


SUBSECTION CHAIRS
Commercial Development and Leasing, Nadav Ravid
Construction Law, Shaaron Bangs
Finance, Benjamin Howell
General Real Estate Law, Marybeth Heydt
Land Use Planning and Environmental Law, Glenn Block
Title Insurance, Jesse Hernandez

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Women at the Top 2012
Early Bird Registration Deadline: September 18


Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after
the publication date.

The foregoing practice tips were prepared for information purposes only. Such practice tips do not constitute tax, legal or other advice and no responsibility is assumed for any reliance upon them or with respect to assessing or advising the reader as to tax, legal, or other consequences arising from a particular situation. The accuracy of the information
provided should be independently verified by the reader and should not be treated as authoritative.