• Land Use Attorney Capitola

Judge Rules “Game Over” In Dismissing A Homeowner’s Wrongful Foreclosure Suit After Multiple Prior Suits On The Same Issues Were Dismissed.

In Gillies v. JPMorgan Chase Bank, NA, (2017) 7 Cal.App.5th 907, the Second District Court of Appeals of California ruled that the “game is over” for a borrower that remained in possession of property for eight years after defaulting on payment of his mortgage.

In this case, Attorney Douglas Gillies (“Gillies”) appealed the loss of his 4th lawsuit challenging mortgage lender JPMorgan Chase’s (“Chase”) efforts to foreclose on his real property. Each lawsuit contained similar allegations of wrongful foreclosure actions and lack of standing to foreclose on the part of Chase.

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A Homeowners Association Is Not Entitled To A Refund Of Sewer Service Fees Paid For Water To Irrigate Common Area Landscaping Despite A Lack Of Connection To Municipal Sewer Service.

In Cape Concord Homeowners Ass’n V. City of Escondido, (2017) 7 Cal. App. 5th 180, the Court of Appeal held that the Homeowners Association (“HOA”) was not entitled to a refund of service fees paid for water used to irrigate common landscape areas despite the fact that the water used for irrigation was not connected to the City of Escondido’s (“City”) sewer system.

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CASE UPDATE: California Supreme Court Rules On Duties Of Real Estate Agents in Dual-Agent Transactions. (What does this mean for Santa Cruz real estate agents?)

In Horiike v. Coldwell Banker Residential Brokerage Co., (2016) 201 Cal.Rptr.3d 1, 383 P.3d 1094, the California Supreme Court ruled that all salespeople working under a single broker in a “dual agent” transaction owe the same fiduciary duties to both buyers and sellers that the broker does, even if different agents within the brokerage represent the buyer and seller separately.

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Case Update: Laguna Hills HOA Prevails Against Homeowner’s Intentional Encroachment Into Common Area.

In Nellie Gail Ranch Owners Association v. McMullin, (2016) 4 Cal.App.5th 982, the court of appeal affirmed a trial court ruling quieting title to a portion of planned development’s common area in favor of a homeowners association (HOA) in Laguna Hills.  In this case, a homeowner sought the HOA’s approval to construct several backyard improvements, including renovations to a pool, and new stairways, retaining walls and fences that dropped down the owner’s hillside towards HOA common area (Lot 274).  The HOA approved the pool renovations, but not the owner’s proposed re-grading, retaining walls and fences.  However, the owner’s constructed those improvements anyway, which had the effect of fencing in 6,000 SF of the common area, and the HOA sued.

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CASE UPDATE: Appellate Court Affirms Award of Davis-Stirling Attorneys’ Fees to HOA in Action Against Homeowner to Enforce Settlement Agreement.

In Rancho Mirage County Club Homeowners Association v. Hazelbaker, (2016) 2 Cal.App.5th 252, the court of appeal affirmed a trial court award of attorneys’ fees to an HOA in a lawsuit filed to enforce the terms of a settlement agreement with a homeowner.  The homeowner applied for and received approval from the HOA’s architectural review committee to make certain improvements to a patio area, however, the HOA contended that the homeowner made improvements that exceeded the scope of the approval and which would not have been approved had they been included in the application.

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CASE UPDATE: Court Awards $100,000.00 in Attorneys’ Fees Against HOA Member in Dispute About Short-Term Vacation Rentals

In Almanor Lakeside Villas Owners Association v. Carson, (6th Dist. 2016) 246 Cal.App.4th 761, the court of appeal affirmed a trial court judgment awarding the homeowners’ association (HOA) approximately $100,000.00 in attorneys’ fees.  The HOA filed a complaint against a member of the HOA in order to enforce $20,000.00 in fines and related fees for rule violations related to the member’s leasing of its two properties as short-term vacation rentals, which was prohibited by the CC&Rs.

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CASE UPDATE: Wrongful Foreclosure Plaintiff Can Challenge The Validity Of The Assignment Of The Underlying Note And Deed Of Trust.

In Yvanov v. New Century Mortg. Corp., (2016) 62 Cal.4th 919, the California Supreme Court resolved a split of authority in the appellate courts and held that a borrower who has suffered a nonjudicial foreclosure has standing to sue for wrongful foreclosure based on an argument that the foreclosing loan beneficiary and trustee lack foreclosure authority because the loan was not properly assigned.   Generally speaking, “standing” is a constitutional requirement that a plaintiff in a lawsuit have a legally protectable and tangible interest at stake in the litigation.

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CASE UPDATE: Landlord Cannot Terminate A Residential Tenancy Based On A Violation Of A Lease Term That Is Not “Material”.

In Boston LLC v. Juarez, (2016) 245 Cal.App.4th 75, the court held that it was not proper for a landlord to terminate a residential tenancy and evict a tenant under a three-day notice based on the fact that the tenant failed to obtain renter’s personal injury and property damage insurance, as required by the lease.  The court further held that in order to enforce a forfeiture provision in a lease, the tenant’s breach must be “material”, i.e., substantial, even if the forfeiture provision does not require a breach to be material.   In this case, the court reasoned that the breach was not material because the insurance requirement only protected the tenant’s interests, not the landlord’s, and because the landlord otherwise failed to prove how it was harmed by the tenant not obtaining renter’s insurance after having lived at the premises for 15 years without this term being enforced.

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New, Dense Residential Development Is Coming To Santa Cruz.

The Santa Cruz Sentinel recently reported on the Santa Cruz City Council’s approval of a new 32-unit condominium project to be constructed at 1800 Soquel Avenue at the intersection of Hagemann Avenue, which is the current site of May’s Sushi Bar & Grill. (Santa Cruz Council Green Lights New Condo Development, 4/13/16.)  The article described this project as, “a test case for the city’s in-development “Corridor Plan,” calling for increased density of residential and commercial growth along major city roads….” The project consists primarily of one-bedroom and studio units, and will provide much needed relatively affordable housing in the City.

The Santa Cruz City Council and the Santa Cruz County Board of Supervisors have already decided, as a matter of land use policy, that the best places to add the substantial amount of new housing that is needed in Santa Cruz are along the four main thoroughfares – Mission Street, Water Street, Soquel Avenue/Soquel Drive, and Ocean Street.  The basic idea is to site new, dense residential development near bikeways and public transportation routes in hopes that a significant amount (10%? 20%?) of new residents will bike and/or take the bus instead of driving (at least some of the time), in order to minimize traffic and other impacts in the urban boundary area overall.

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

“I would definitely go with Mr. Dolinger again, and I would recommend him in a heartbeat to anyone who is looking for representation. He knows his business and he is very good at it.”

Richard. February 8, 2015
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