The Death Tax Bogeyman – More Imaginary than Real

The federal estate and gift tax has been law since World War I. In its simplest terms, it provides for the taxation of gifts made at death. A certain group of influential persons don’t like this tax, and have continually attacked it, using the pejorative label “death tax.” Like all taxes, the estate and gift …

Breslin v. Breslin – Court Breaks the First Commandment of Mediation

The first principle of mediation is that parties work to find a resolution on terms that are mutually acceptable. In mediation, nobody orders the parties what to do: the parties control the outcome. This is referred to as the principle of self-determination, and it is embodied in California Rules of Court, rule 3.853, which states …

Majd v. Bank of America – Violation of Dual Tracking Statute Supports Claim for Wrongful Foreclosure

California law now prohibits the practice of “dual tracking,” whereby a lender simultaneously pursues a default while also engaging in loan modification negotiations with the borrower.  The question concerns the remedy available when there is a violation of the dual tracking law. The court in Kazem Majd v. Bank of America, N.A. (Jan. 14, 2016) …

Saterbak v. JPMorgan Chase Bank – New Opinion Disagrees with 2013 Decision in Glaski v. Bank of America

A 2013 decision from the Fifth District Court of Appeal (based in Fresno) has bedeviled the lending community.  In Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, the court held that the borrower could state a “cognizable claim for wrongful foreclosure under the theory that the entity invoking the power of sale (i.e.,  Bank …

Karl Llewellyn and the Theory of Rules

Karl Llewellyn was one of the leading lights of American jurisprudence from the 1930s through the 1950s.  Not only was he the dean of Columbia Law School, he participated in the drafting of Article 2 of the Uniform Commercial Code, and was active in efforts to promote its enactment in the different states. Add this: …

In re Perl – 9th Circuit Changes Rules Relating to Bankruptcy Stay and California Eviction Law

The law of evictions – titled as “unlawful detainer” in California – is a technical area. The law has statutory roots as far back as the Forcible Entry Act of 1381, which prohibited the use of self-help to retake possession of real property. That remains an important concept in an action based on the unlawful …

The ABCs of Future Public Payments Law – Prof. Mark Burge

Strange how an idea that was once old can become new again.  Roscoe Pound, Dean of the Harvard Law School, was a prolific legal writer in the 1920s and 1930s.  From my perspective, his best work concerned the development of the American legal system from 1850 through 1900, as America reached the end of its …

ChinaCast Education Corporation – Fraud of Officer Imputed to Corporation

Here is a recent decision that is not a surprise under a traditional agent-principal analysis.  Even so, it has to sting, because the corporation loses twice – first, when it was defrauded by the former president, and second when the corporation was sued by shareholders for the diminished value of their securities. The fact pattern …

Dorsey v. Superior Court – No Attorneys Fees in Small Claims Cases

As the jurisdiction of small claims court has increased (now up to $10,000), attorneys are called on more frequently to assist on appeal.  (Ground rule – attorneys are not permitted to assist at the original trial, only on appeal.) In Dorsey v. Superior Court (Oct. 22, 2015) __ Cal.App.4th __, “The small claims court dispute …

Marriage of Fossum – Mandatory Award of Attorney’s Fees to Spouse for Breach of Fiduciary Duty

The opinion in In re Marriage of Fossum (Feb. 1, 2011) 2011 DJDAR 1629 focused on the characterization of a house that was owned by Edward and Sandra Fossum.  Like many couples, title was taken in the name of one spouse to obtain better credit terms.  The court found that the house was community property, …