A recent case illustrates the need for a beneficiary to exercise care when making a bid at a trustee sale. In Biancalana v. TD Service Company (Oct. 31, 2011) 2011 DJDAR 15972, the secured debt was $219,105. However, due to error by the beneficiary, the trustee was instructed to make an opening bid of only …
Continue reading “Trustee’s Foreclosure Sale Is Valid, Despite Substantial Error in Opening Bid”
A recent case reinforces the necessity to comply with the technical requirements for prosecuting an unlawful detainer complaint in California. [Commonly known as an eviction.] Specifically, the issue at trial was whether the three-day notice had been served properly. The trial court held that service was defective. This was reversed on appeal, based on the …
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I am reading a series of lectures delivered in 1972 by S.F.C. Milsom and collected in The Legal Framework of English Feudalism (Cambridge University Press 1976). The text is difficult, as it frequently refers to rights, remedies, and procedures that long ago ceased to be relevant in the law of English-speaking nations. Still, as I …
Continue reading “The Long-Standing Connection Between Real Estate Law and Probate”
This author has often complained that the trust laws have not kept pace with modern practice as it relates to estate planning. Estate planning trusts (a.k.a. “living trust”) are used as will substitutes. The rules pertaining to wills are well known, and are established by case and by code. In contrast, the statutory rules relating …
This writer has commented regularly that the modern estate planning trust is a legal fiction. A convenient legal fiction, mind you, but still a legal fiction. The estate planning trust (also known by the unfortunate term, “living trust”) is a merely a will substitute. It takes effect – meaning, it provides a benefit to a …
The trend in the courts has been to reduce the legal theories available to persons who suffered losses during the mortgage meltdown. Traditional theories based on breach of contract, fraud, and promissory estoppel, remain viable causes of action. Yet the more exotic theories seeking to impose liability have been narrowed and often eliminated. Such is …
Here is the clearest explanation I have found to date regarding the rise of trusts in English law. Bear in mind that England was still a feudal system in the year 1350. Also bear in mind that a court of law could not enforce a trust – such jurisdiction lay within the court of equity, …
Continue reading “Tracing the Origin of the English Trust to the Year 1350”
The fees in a probate case trigger a reaction that sometimes borders on panic. Part of the reasoning behind the use of an estate planning trust (sometimes referred to as an inter vivos trust) is that the trust will save on attorney’s fees. However, as I tell clients, it only works if the beneficiaries get …
The Delaware Supreme Court recently decided William Penn Partnership v. Saliba, a case in which there are no winners. In the case, one of the members breached his fiduciary obligations, but his conduct caused no damage. Nonetheless, the court awarded attorneys’ fees as an “equitable remedy.” In this author’s view, the award distorts the law …
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The courts are increasingly faced with the cases involving the interpretation and enforcement of estate planning trusts. In Diaz v. Bukey (May 10, 2011) 2011 DJDAR 6650, the court concisely framed the dispute: “The beneficiary of a trust petitions to remove her sister as trustee of their parents’ trust. The trustee responds by seeking to …
Continue reading “Trust Does Not Create Contractual Rights in Favor of Beneficiary”