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Articles 1 - 16 of 16
Full-Text Articles in Law
His, Hers, Or Theirs?, Roger Bernhardt, Christine Tour-Sarkissian
His, Hers, Or Theirs?, Roger Bernhardt, Christine Tour-Sarkissian
Publications
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
Rethinking Rescission, Roger Bernhardt
Publications
The basic facts are that the purchasers of a hillside residence in San Carlos rescinded their completed contract because of misstatements made by the sellers to the effect that the property was served by a public sewer, when in fact the system was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
Valbuena V Ocwen Loan Servicing, Llc, Roger Bernhardt
Publications
No abstract provided.
Bank Of America V. Caulkett, Roger Bernhardt
Bank Of America V. Caulkett, Roger Bernhardt
Publications
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
Lessons Not To Learn About Merger, Roger Bernhardt
Publications
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
Mira Overseas Consulting Ltd. V Muse Family Enters., Ltd., Roger Bernhardt
Publications
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
California Bldg. Indus. Ass'n. V. City Of San Jose, Roger Bernhardt
Publications
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
Monterossa V Superior Court, Roger Bernhardt
Publications
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
Variances And Hardship, Roger Bernhardt
Publications
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
Alborzian V Jpmorgan Chase Bank, Roger Bernhardt
Publications
Alborzian v JPMorgan Chase Bank (2015) 235 CA4th 29.
California Bank V. Delponti, Roger Bernhardt
California Bank V. Delponti, Roger Bernhardt
Publications
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
Stockton Mortgage, Inc. V Tope, Roger Bernhardt
Publications
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
The One Action Rule Nightmare, Roger Bernhardt
The One Action Rule Nightmare, Roger Bernhardt
Publications
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
Usury And Loan Transfers, Roger Bernhardt, Alex Volkov
Publications
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
Bank Regulation And Securitization: How The Law Improved Transmission Lines Between Real Estate And Banking Crises, Erik F. Gerding
Publications
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 …