Category Archives: Real Property

Bona Fide Lease Survives Foreclosure Under PTFA

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  The Sixth Appellate District concludes, in Nativi v. Deutche Bank, that the Protecting Tenants Against Foreclosure Act of 2009 (scheduled to sunset the end of 2014) causes a bona fide lease for a term to survive foreclosure through the end of the lease term — subject to the limited authority of the immediate successor in interest to terminate the lease, with proper notice, upon sale to a purchaser who intends to occupy the unit as a primary residence. The Act impliedly overrides state laws that provide less protection but expressly allows states to retain the authority to enact greater protections. Bona fide tenancies for a term that continue by operation of the PTFA remain protected by California law.

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  1. Prescriptive Easement: Owner’s Possession Need Not Be Continuous
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  3. Foreclosed Homeowner: Negligent Misrepresentation Claim Survives
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  5. Happy Independence Day

Davis-Stirling: Partial Payments Reducing Assessments Must Be Accepted

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  The Orange County Appellate Division concludes in Huntington Continental v. JM Trust that the Davis-Stirling Common Interest Development Act compels a homeowner’s association to accept and apply partial payments that reduce delinquent assessments owed, but not any other amounts due such as late fees, interest, attorney fees, and costs. This is true even if an action has been commenced to foreclose the lien since there is nothing in the Act precluding the acceptance of partial payments of delinquent assessments once litigation has commenced. Continue reading →

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  1. How to Count Days: California Courts
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Unlawful Detainer: No Jury Trial Waiver for Failure to Deposit Court Ordered Damages

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  There is a right to a jury trial in an unlawful detainer action, unless waived. A waiver may occur pursuant to Code of Civil Procedure section 631 only by:

1) Failure to timely demand a jury trial;
2) Failure to appear at trial;
3) By written consent;
4) By oral consent in open court, entered in the minutes;
5) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation;
6) By failing to pay jury fees as required by statute. Continue reading →

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  1. Bona Fide Lease Survives Foreclosure Under PTFA
  2. Liquidated Damages: Provision in Stipulation for Judgment an Unenforceable Penalty
  3. Contingency Fee Recovery After Withdrawal or Discharge
  4. Promissory Note Statute of Limitations: 4 or 6 Years?
  5. Forty Year Old Fence Did Not Establish an Agreed Boundary

Wrongful Foreclosure: 5 Insufficient Factual Allegations

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  Rossberg v. Bank of America is a case about factual allegations which will not win the day in a suit to enjoin a nonjudicial foreclosure sale. The Rossbergs attempted to allege defects sufficient to invalidate the recorded Notice of Default and sought to enjoin the foreclosure sale of their residence. The take-a-ways: Continue reading →

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Wrongful Foreclosure; Temporary Loan Modification; Void Sale: Tender Not Required

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  In Chavez v. Indymac Mortgage Services the court allowed a wrongful foreclosure case to proceed where the borrower complied with all the terms of the temporary loan modification and timely signed and returned the loan modification agreement. Continue reading →

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Landlord May Hold Weekend Open House

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  Civil Code section 1954 specifies the conditions under which a landlord may enter a dwelling. Subdivision (b) permits a landlord to enter a dwelling to exhibit the premises to prospective or actual purchasers during “normal business hours.” Does this include weekend open houses? Continue reading →

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Nonjudicial Foreclosure: Preemptive Actions Dissallowed

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  Once again a Court of Appeals affirms the trial court’s ruling sustaining a demurrer without leave to amend of a homeowners’ complaint which challenged the MERS registration system and the assignment of the underlying note by MERS. Continue reading →

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  1. Foreclosed Homeowner: Negligent Misrepresentation Claim Survives
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  3. 1-Year Statute of Limitations: Malicious Prosecution Action Against Attorney
  4. Memorandum of Costs: 5-Day Extension Applies When Party Serves Notice of Entry by Mail
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Protecting Tenants at Foreclosure Act: No Private Right of Action

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  In Logan v. U.S. Bank National Association the Ninth Circuit held that no private right of action exists under the Protecting Tenants at Foreclosure Act of 2009. Accordingly, the court affirmed the dismissal of a complaint seeking damages and injunctive relief against a bank that had filed an unlawful detainer action against the tenant of a former owner of foreclosed property. The Act is intended to provide a defense to bona fide tenants in eviction proceedings – it cannot be used offensively.

  I consult with clients and accept cases involving foreclosure and unlawful detainer proceedings, including available defenses under the Protecting Tenants at Foreclosure Act of 2009. For other types of cases I accept, please scroll my Home and My Practice pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude

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  2. Happy Independence Day
  3. Judgment Debtors: The Qualified Tax Return Privilege
  4. Foreclosed Homeowner: Negligent Misrepresentation Claim Survives
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Prescriptive Easement: Owner’s Possession Need Not Be Continuous

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  The requirements for a prescriptive easement are that the plaintiff or its predecessors must have used the property for the statutory period of five years. Further, such use must have been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.

  One potential defense to an action for prescriptive easement is Civil Code section 741 which provides in pertinent part: “No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by forfeiture . . . or otherwise . . . .” Continue reading →

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Antideficiency Protections Under 580b, 580d, and 580e Amended and Clarified

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  Antideficiency protections have been clarified by July 2013 legislation amending Code of Civil Procedure sections 580b and 580d. SB 426 amends those sections and clearly provides that the prohibitions contained in sections 580b and 580d include collecting or even owing a deficiency. The amendment further clarifies that the prohibition extends only to the borrower and the borrower’s non-encumbered assets — not to 1) guarantors, pledgors, or other sureties; or, 2) that might be satisfied from other collateral pledged to secure the obligation. Continue reading →

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