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, …

Aceves v. U.S. Bank – Promise by Lender to Negotiate with Borrower Gives Rise to Lawsuit

For anyone dealing with distressed mortgages, the story about the lender who said it would “work” with a defaulted loan, only to abruptly proceed to foreclosure, is all-to-familiar.  A legal challenge against the lender must be based on existing legal precedent. The January 27, 2011 decision in Aceves v. U.S. Bank, N.A. gives hope to …

Kucker v. Kucker – General Assignment to Trust Includes Unspecified Stock

The recent decision in Kucker v. Kucker focused on a narrow issue.  Is a general assignment of assets valid for transfer of stock into an estate planning trust?  The court answered in the affirmative, but not before confronting the statute of frauds.  And not before stating an important distinction regarding real property. The facts were …