• Land Use Attorney Capitola

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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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CASE UPDATE: Deficiency Judgment Not Allowed Because Bank Failed To Include All Properties Securing Loan In Judicial Foreclosure Sale.

In First California Bank v. McDonald, (2014) 2014 WL 6675937, the court held that a bank/ secured lender could not maintain an action for a deficiency judgment because in the underlying judicial foreclosure action the bank only included one of two properties securing the loan.

The bank made the subject loan to a husband and wife secured by two properties, the “Wasco” property, which was community property, and the “Shafter” property, which was the wife’s sole and separate property. After the husband died, the loan went into default.  The bank and the wife agreed to a private sale of the parcel that was her separate property (Shafter), and then the bank filed a lawsuit to foreclose on the remaining parcel and obtain a deficiency judgment.  The trial court granted a decree of judicial foreclosure stating that the bank was entitled to obtain a deficiency judgment against the representatives of the husband’s estate, but the court of appeal reversed. 

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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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