The law of eviction, or unlawful detainer, has roots that extend back hundreds of years. Here in California, where everyone has the opportunity to make a fresh start, we sometimes forget the past and how it affects our laws. Yet in eviction, which is properly referred to as “unlawful detainer,” the historical underpinnings are quite …
Category Archives: Real Property
In re Honkanen – Bankruptcy Court Holds that Real Estate Broker’s Breach of Fiduciary Obligation is Dischargeable
A new decision has made an important change concerning he liability of real estate brokers in the context of a bankruptcy. Specifically, the decision in In re Honkanen, 2011 DJDAR 3358 (9th Cir. Bankruptcy Appellate Panel March 4, 2011) holds that a real estate broker can obtain a discharge from a state court finding of …
Smith v. Home Loan Funding – An Excessive Remedy Against Mortgage Broker
The decision in Smith v. Home Loan Funding, Inc. (Feb. 25, 2011) 2011 DJDAR 2968 may have satisfied a “feel good” impulse at the Court of Appeal. However, it seems that Justice Gilbert jumped the rails when he affirmed the award of damages. Even more, he awarded attorney’s fees when there was no contract between …
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Bonfigli – Don’t Press Your Luck with a Power of Attorney
The decision in Bonfigli v. Strachan (Feb. 24, 2011) 2011 DJDAR 2893 is a reminder not to press for advantage when using a power of attorney. The defendant was a developer who used a power of attorney to reconfigure two parcels so that he got to keep the land, but did not have to pay …
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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 …
Fraud in the Inducement, or “I Didn’t Read the Contract But That’s OK Because the Other Guy Lied About the Terms”
In a recent and closely reasoned opinion, the 5th District Court of Appeal from Fresno held that a claim of fraud could go to trial, even if the alleged fraud was controverted by the language of the written agreement between the parties. There are points in the opinion for discussion, but let’s start with the …
Debtor’s Fraudulent Transfer of Property Set Aside Years After Trust Was Formed
In a recent bankruptcy case, the Ninth Circuit held that a transfer to a trust could be set aside years after the transfer was made. In In re Schwarzkopf (9th Cir Nov. 23, 2010) ___ F.3d ___, the court held that, because the transfer was a fraud on creditors at the time it was made, …
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Starr vs Starr – Court Upholds Finding of Undue Influence in Real Estate Matter (Part 2)
This is the second part of an analysis of Starr v Starr (Sept. 30, 2010) 189 Cal.App.4th 277. The court held that a house acquired during marriage in the name of the husband only was actually community property, even though the wife signed a quitclaim deed in favor of the husband. Explained the court, “Evidence …
Starr v. Starr – Sterling Analysis of Effect of Confidential Relationship (Part 1)
In Starr v Starr (Sept. 30, 2010) 189 Cal.App.4th 277, the court was confronted with division of assets at the time of divorce. In an excellently-reasoned opinion by a divorce attorney, the court found in favor of the wife, and held that she was entitled to a 50% interest in the family residence, even though …