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VOLUME 11 | NUMBER 5 | MAY 2016
 
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IN THIS ISSUE
 
Introductory Remarks
>
Recent Cases
>
 

The Real Property Section Newsletter is published monthly by the Real Property Law Section.

Editor:
Teresa Y. Hillery
Vice President and Trial Counsel
Fidelity National Law Group
Teresa.Hillery@fnf.com

 

Real Property Executive Committee:

SECTION OFFICERS

Chair
Brant Dveirin

First Vice Chair
Susan J. Booth

Second Vice Chair
Caroline Dreyfus

Treasurer
Claire Hervey Collins

Secretary
Eric Altoon 

Barristers Liaison
Kelsey Thayer

Section Administrator
Fatima Jones

EXECUTIVE COMMITTEE MEMBERS

Nedra E. Austin
Michael J. Bayard
Martha C. Bringas
Elizabeth Spedding Calciano
Norman Chernin
William G. Coskran
Robert T. Flick
Peter A. Gelles
Daniel L. Goodkin
Marcia Z. Gordon
Owen P. Gross
Byron Hayes, Jr
Marybeth Heydt
Lore A. Hilburg
Teresa Y. Hillery
Laurence L. Hummer
Gordon Hunt
Bryan C. Jackson
Robert D. Jaffe
Donna E. Kirkner
Michael S. Klein
Mark L. Lamken
Trudi J. Lesser
Gregg J. Loubier
Kyle B. Marks
Victor I. Marmon
Jerold L. Miles
O'Malley M. Miller
Donald C. Nanney
Gytis L. Nefas
Beth Peterson
Nadav Ravid
D. Eric Remensperger
James D. Richman
Misty Marie Sanford
Floyd Sayer
Margaret J. Schock
Ronald I. Silverman
Linda E. Spiegel
Sarah V J Spyksma
Theresa C. Tate
Kelsey M. Thayer
Timothy M. Truax
Richard S. Volpert
Ira J. Waldman
Brandon Dominic Ward
Alan Wayte
Pamela L. Westhoff
Norma J. Williams
Grace Winters
Andrew (Andy) J. Yamamoto
Paula Reddish K. Zinnemann

 
SUBSECTION CHAIRS

Construction Law
Donna Kirkner
Finance Committee
Owen Gross
General Property
Beth Peterson
Land Use Planning & Environmental Law
Brandon Ward
Title Insurance
Lore A. Hilburg

 

 
Introductory Remarks

We hope to see you at our 18th Annual Real Property Installation & Awards Dinner. It will be a great night of honoring exceptional award recipients and installing the incoming Officers for 2016-2017. To register by May 31, 2016, call LACBA Member Services at 213-896-6560 or visit www.lacba.org. The event code is 060816RPS. More Information

18th Annual Real Property Installation and Awards Dinner
June 8, 2016 at 6 p.m.
InterContinental Los Angeles
2151 Avenue of the Stars
Los Angeles, CA 90067

 
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Recent Cases
 
-- Homeowners Association –
Trial court did not abuse its discretion in awarding attorney's fees to the homeowners association and against property owners, pursuant to Civil Code §5975. Although property owners did succeed in having some of the association imposed fines deemed unreasonable, the net result of the case was to reaffirm the association's ability to enforce its CC&Rs. The award of fees to prevailing homeowners association did not violate public policy, as it was consistent with the Davis-Stirling Act.

Almanor Lakeside Villas Owners Association v. Carson - filed Apr. 19, 2016, Sixth District
Cite as 2016 S.O.S. 2017
Full text click here > 

--Inverse Condemnation--
Homeowners' inverse condemnation complaint failed to state a cause of action where it alleged only impairment of their views and a speculative risk of fire danger, neither of which constituted a taking or damaging of their property.

Boxer v. City of Beverly Hills - filed Apr. 26, 2016, Second District, Div. One
Cite as 2016 S.O.S. 2147
Full text click here >  

-- Loan Servicing --
When a lender acquires by assignment a loan being administered by a loan servicer, the lender may be liable to the borrower for misrepresentations made by the loan servicer, as the lender's agent, after that assignment. A loan servicer may owe a duty of care to a borrower through application of the Biakanja factors:  "(1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to [the plaintiff], (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct, and (6) the policy of preventing future harm. (Biakanja v. Irving (1958) 49 Cal. 2d 647, 650)

Daniels v. Select Portfolio Servicing, Inc. - filed Apr. 26, 2016, Sixth District
Cite as 2016 S.O.S. 2102
Full text click here > 

-- Nonjudicial Foreclosure --
Borrower's complaint for cancellation of instruments, unfair competition, foreclosure by entity lacking a beneficial interest, declaratory relief, and violation of the California Homeowner Bill of Rights (HBOR) failed to state a cause of action. The causes of action were 'barred as a matter of law' because there is no recognized cause of action that allows a borrower to test the legal authority of the entity initiating nonjudicial foreclosure proceedings in a suit brought before the foreclosure sale occurs (a 'preemptive action'); [Borrower] lacked standing; and [Borrower's] 'contention that [Defendants] lack[ed] authority to enforce the Deed of Trust [was] contradicted by matters subject to judicial notice. The court also found that [Borrower] had not alleged a sufficient injury in fact to support her unfair competition claim and that her claims under the HBOR failed for lack of explanation of the law's applicability.

Brown v. Deutsche Bank National Trust Company - filed May 9, 2016, First District, Div. One
Cite as 2016 S.O.S. 2376
Full text click here > 

 
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