Law Commons^™

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

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No abstract provided.

Race, Space, And Surveillance: A Response To #Livingwhileblack: Blackness As Nuisance, Lolita Buckner Inniss

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This article is an invited response to an American University Law Review article titled “#LivingWhileBlack: Blackness as Nuisance” that has been widely discussed in the news media and in academic circles.

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

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The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Feeding The Eco-Consumer, Alexia Brunet Marks

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There is a lot of talk about making our food system more “sustainable,” and eco-consumers — those who consider environmental sustainability as an important purchasing priority — are making themselves heard. This growing consumer segment is rapidly gaining national attention for moving more sustainable products to the market, and for its willingness to pay more for these options. However, while economists normally predict that higher prices lead profit-minded suppliers to enter a market to meet a new and growing demand, this transition is not occurring at the pace one would expect.

This Article argues that land tenure status — whether …

Our Supreme Court Tackles Greenhouse Gas Analysis In Eirs, Alan Ramo

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No abstract provided.

Two New Case Developments In Landlord-Tenant Law, Myron Moskovitz

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No abstract provided.

Using A Long Arm To Undo A Fraudulent Conveyance, Marc Greenberg

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No abstract provided.

Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter

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In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian …

His, Hers, Or Theirs?, Roger Bernhardt, Christine Tour­-Sarkissian

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Marriage of Brandes (2015) 239 CA4th 1461 is not technically a real estate case because the major asset fought over in that dissolution action was an investment advisory business that the husband had founded before marriage, but which had grown enormously during the marriage. Because investment advising is not a real estate activity, Brandes has been omitted from traditional coverage in this Reporter. (It was reported in CEB’s Estate Planning and California Probate Reporter; see 37 CEB Est Plan Rep 69 (Oct. 2015).) But since the opinion has so much to say to lawyers about community and separate property—real as …

Rethinking Rescission, Roger Bernhardt

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The basic facts are that the purchasers of a hillside residence in San Carlos rescinded their completed contract because of misstatements made by the sellers to the effect that the property was served by a public sewer, when in fact the system was privately owned by the 13 residents of the area, who all had to share its maintenance costs. The trial court found that the sellers’ statements were negligent misrepresentations, but it declined to order rescission because of the complications involved in unwinding the deal. Instead, it ordered the sellers to indemnify the purchasers for their sewer maintenance costs …

Valbuena V Ocwen Loan Servicing, Llc, Roger Bernhardt

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No abstract provided.

Bank Of America V. Caulkett, Roger Bernhardt

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A junior mortgage lien cannot be stripped off in a Chapter 7 bankruptcy just because it is entirely underwater. California law pretty much says the same; see Barbieri v Ramelli (1890) 84 C 154, holding that a secured creditor’s demonstration that the mortgages senior to hers exceed the value of the property is not enough to let her bypass the oneaction rule and sue on her note. On the other hand, if the senior has actually foreclosed his superior lien, then she is a “soldout junior” who can sue directly on her note without foreclosing.

Lessons Not To Learn About Merger, Roger Bernhardt

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Ram’s Gate Winery, LLC v Roche (2015) 235 CA4th 1071 teaches lessons that both transactional and litigation attorneys should not particularly want to learn. These lessons suggest that the old common law doctrine of merger can be safely ignored, whereas clients could suffer unpleasant consequences if those issues are not securely covered in the contract.

Mira Overseas Consulting Ltd. V Muse Family Enters., Ltd., Roger Bernhardt

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The normal rule dictating the priority of rival claims generally depends on which party got its judgment first (rather than, e.g., which made its loan first, or first went unpaid, or was first to file suit), but this decision adds that the date of getting a judgment relates back to an earlier time if a lis pendens had been filed.

California Bldg. Indus. Ass'n. V. City Of San Jose, Roger Bernhardt

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If an inclusionary housing ordinance is regarded as an “exaction”—because it compelled a developer to pay through land dedication or in-lieu fees—then the city must show that (1) there was a reasonable relationship between the deleterious effects of the new housing and the economic burden imposed on the developer —the nexus—and (2) the burden is reasonably proportional to the problems created by the development.

Monterossa V Superior Court, Roger Bernhardt

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In 2005, petitioners obtained a $359,650 mortgage from PNC Mortgage for the purchase of a home. In 2013, petitioners became unable to make their mortgage payments and contacted PNC for hardship assistance. PNC failed to send a hardship assistance package to petitioners. Despite that failure, PNC later notified petitioners that their request for hardship assistance was denied “because PNC did not receive a completed hardship assistance package” from petitioners and recorded a notice of default. In November 2013, petitioners submitted a loan modification agreement to PNC; in December 2013, PNC confirmed that it had received a complete package. Despite that …

Variances And Hardship, Roger Bernhardt

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Cities may want more eldercare facilities located within their municipal borders, but a neighborhood homeowner association inside the city might feel the other way if the project is going to be located too near to its members’ residences. If the local officials mess up in complying with the enabling standards in approving the project, that fact simply gives the opposition all the more ammunition to block the development.

Alborzian V Jpmorgan Chase Bank, Roger Bernhardt

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Alborzian v JPMorgan Chase Bank (2015) 235 CA4th 29.

California Bank V. Delponti, Roger Bernhardt

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In DelPonti, the court of appeal held a guarantor’s waiver did not include allowing the lender “to profit from its own fraudulent conduct.” That position appears to fit right in to the Restatement doctrine that this is as far as a suretyship waiver can go, no matter how adroitly it is worded.

Stockton Mortgage, Inc. V Tope, Roger Bernhardt

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Alliance Title Company was able to dodge liability for failing to inform its insured about the county’s recorded and unreleased Notice of Abatement Action because the court of appeal deemed that notice was not a defect, lien, or encumbrance against the title that Alliance was insuring, such that the failure to mention it as an exception in the insurance policy did not make the insurer liable.

They Had Nothing, Charles Wilkinson

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No abstract provided.

The One Action Rule Nightmare, Roger Bernhardt

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California’s one-action rule—legislatively misconceived at its creation, consistently misinterpreted by the judiciary, and capable of generating unpredictable and destructive consequences for practitioners—has been put on display again in First Cal. Bank v McDonald (2014) 231 CA4th 550. The decision also warns lender’s counsel that nonchalantly being helpful to a borrower can be suicidal.

Usury And Loan Transfers, Roger Bernhardt, Alex Volkov

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This Article is primarily concerned with the effect of transferring a mortgage loan from its originating loan broker to a group of small investors when that loan was at its inception usurious. However, because the rules applicable to that situation are not confined to mortgage law, we begin with a general explanation of usury rules before dealing with the particular real estate loan transaction mentioned.

Bank Regulation And Securitization: How The Law Improved Transmission Lines Between Real Estate And Banking Crises, Erik F. Gerding

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This essay examines how securitization served as a new coupling rod joining cycles in real estate and banking markets and created a new pathway for financial contagion in the “subprime” financial crisis. Legal changes promoted the growth of securitization and improved this crisis transmission line. The essay examines the history of legislative and regulatory changes that facilitated bank participation in the markets for mortgage-backed securities. The essay then explains how securitization failed to mitigate the credit, liquidity, and interest rate risk associated with real estate when losses in residential markets became correlated nationwide. It then discusses how regulation contributed to …

Bankruptcy Court Properly Invalidated Transfer Of Mexican Coastal Villa Owned By Debtors, Roger Bernhardt

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No abstract provided.

Homebuyers' Frivolous Claims Against Seller's Listing Agent Warranted Terminating And Monetary Sanctions, Roger Bernhardt

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No abstract provided.

What Do Those Who Disagree With A Development Agreement Do?, Roger Bernhardt

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No abstract provided.

Borrower's Wrongful Foreclosure Claims Based On An Alleged Failed Attempt To Securitize The Loan, Roger Bernhardt

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Foreclosing While The Property Is Burning, Roger Bernhardt

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No abstract provided.

Private Clean-Up Causes Of Action And Federal Preemption, Roger Bernhardt

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The biggest problem that California practitioners will have with the new decision by the United States Supreme Court in CTS Corp. v Waldburger (2014) ___ US ___, 134 S Ct 2175 (reported on p 94), is that it comes out of North Carolina. It gives no California reference for its holding that §309 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USC §9258) preempts state statutes of limitations that apply to common law actions by private individuals for toxic torts and replaces their normal triggering event (the date the cause of action accrues) with a “federally required …