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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]