POWERPOINT SLIDES NEW CASE LAW THURSDAY GENERAL SESSION SPEAKERS 3:40 4:40 PM. David F. Feingold, Esq. Michael J. Hughes., Esq.

Similar documents
In order to be effective, any of the following requests must be delivered in writing to the association as set forth above:

Benjamin E. Gurstelle

Liability Issues For The Lender Foreclosing On Broken Construction Projects

For all your Homeowner Association Management and Building Maintenance needs, always call on Cityscape Property Management

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT YOU MAY BE REQUIRED TO FILE A CLAIM FORM. NOT ALL CLASS MEMBERS ARE REQUIRED TO FILE A CLAIM FORM.

2018 LEGISLATIVE UPDATE LEGISLATIVE TRENDS FEDERAL ADVOCACY LEGISLATIVE PRIORITIES

DELL SERVICE CONTRACT TAX SETTLEMENT ( Dell Settlement )

DELL SERVICE CONTRACT TAX REFUND CLAIMS SETTLEMENT ( SBE Settlement )

In order to be effective, any of the following requests must be delivered in writing to the association as set forth above:

Making Money in BK. Law Offices of Michael A. Hearn FRIDAY 9:00-11:00 AM. CCAMs must sign the session roster to receive CEUs. ABOUT THE SPEAKERS

INSURANCE COVERAGE COUNSEL

Fidelity National Title Insurance Company

Legal Benefit Summary Plan Description

PLEASE READ THIS NOTICE CAREFULLY. THIS NOTICE MAY AFFECT YOUR RIGHTS.

2016 Foreclosure Law Amendments and Vacant and Abandoned Property Legislation. Two Major Prongs to Legislation

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT AND HEARING DATE FOR COURT APPROVAL

Agreement for Advisors Providing Services to Interactive Brokers Customers

FORT SILL LEGAL ASSISTANCE

SOUTHWIND VILLAGE COMMUNITY ASSOCIATION DELINQUENT ACCOUNT COLLECTION POLICY

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

THE COAST HOMEOWNERS ASSOCIATION COLLECTION PROCEDURES & POLICIES For Collection of Delinquent Assessments

A Primer on SB800 from an Expert s Viewpoint

ProNetwork News. If You Build It, They Will Sue: Condominium Projects Part I

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

Marion Superior Court Local Rule on Foreclosure Cases

NTT Electronics AMERICA, INC. GENERAL TERMS AND CONDITIONS OF SALE

ERISA Litigation. ERISA Statute Fundamentals. What is ERISA, and where is the ERISA statute located? What is an ERISA plan?

Lender Letter LL October 01, 2010

OWNER S INFORMATION SHEET

TWELVE PICKET LANE HOMEOWNERS ASSOCIATION ASSESSMENT COLLECTION POLICY January 1, 2006

Procedural Considerations For Insurance Coverage Declaratory Judgment Actions

CONSTRUCTION CLAIMS DISCLOSURE (NRS )

Verde Energy USA Massachusetts, LLC. Massachusetts Residential and Small Commercial Disclosure Statement and Terms of Service

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Residential Property Owner Handbook. Version February 2017

IN RE: MEDIATION MANDATORY MEDIATION CIRCUIT COURT BREVARD COUNTY OWNER OCCUPIED RESIDENTIAL MORTGAGE FORECLOSURE

West Ridge Park Ballfield Light Pole Structural Assessment

LOAN SERVICING AND EQUITY INTEREST AGREEMENT

SecurePlus Provider universal life insurance policy SecurePlus Paragon universal life insurance policy. a class action lawsuit may affect your rights.

Insurer v. Insurer: The Bases of an Insurer s Right to Recover Payment From Another Insurer*

FORBEARANCE AGREEMENTS. By Gordon L. Gerson, Esq. May 2009

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE APRIL 4, 2002 Session

MINNESOTA REAL ESTATE FORECLOSURES: 21 COMMON QUESTIONS & ANSWERS

ASSEMBLY, No STATE OF NEW JERSEY. 217th LEGISLATURE INTRODUCED FEBRUARY 22, 2016

OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY

SERABRISA MAINTENANCE CORPORATION ASSESSMENT COLLECTION POLICY January 1, 2009

Bryan J. Case Partner

ROSE HILL HOMEOWNERS ASSOCIATION, INC. POLICY RESOLUTION NO (Regarding the Collection of Assessments)

Dealing with Foreclosure Properties

DEED OF TRUST AND ASSIGNMENT OF RENTS SAN FRANCISCO POLICE IN THE COMMUNITY LOAN PROGRAM (PIC)

Letter of Undertaking to Indemnify. In this undertaking the following terms shall mean as set forth at their side:

A G & R ABDULAZIZ, GROSSBART & RUDMAN

EXPANDED COVERAGE RESIDENTIAL LOAN POLICY For a one-to-four family residence Issued By BLANK TITLE INSURANCE COMPANY

DUTIES AND OBLIGATIONS OF SMALL BUSINESS REORGANIZING UNDER CHAPTER 11 OF THE BANKRUPTCY CODE

CASE EVALUATION AND JUDICIAL FORECLOSURE DO NOT MIX: PROCEED WITH CAUTION

American Land Title Association Adopted OWNER S POLICY OF TITLE INSURANCE Issued by [TITLE INSURANCE COMPANY]

Pitfalls of Adding Clients or Other Design Professionals as Additional Insureds

SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER

THIS NOTICE IS DIRECTED TO:

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND FINAL APPROVAL HEARING

Title Abstract/Title Opinions. Title Insurance. Title Insurance

DEED OF TRUST AND ASSIGNMENT OF RENTS FIRST RESPONDERS DOWNPAYMENT ASSISTANCE LOAN PROGRAM (FRDALP)

ERISA. Representative Experience

2016 CASE LAW SUMMARY. Insurance Coverage. State Farm Florida Insurance Company v. Lime Bay Condominium, Inc., 187 So. 3d 932 (Fla.

florida ARECS Save Your Deal. Save Your Client. Realtor s Distressed Property Guide Revised January 2017

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

INDIVIDUAL 401(k) RECORDKEEPING SERVICE AGREEMENT

MORTGAGE. This Mortgage is made this day of, Legal Description: Property Address:

Pella Certified Contractor Agreement. This Agreement is made this day of, 20, by and between. _ ( Pella Sales Entity ) and. ( Remodeler ).

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

FANNIE MAE/FREDDIE MAC CONDO/PUD GUIDELINES

CHAPTER 244 FORECLOSURE AND REDEMPTION OF MORTGAGES*

Division of Risk Management Florida Department of Financial Services. General Program and State Liability Claims Information

NEVADA STATE CONTRACTORS BOARD

All actions taken by the Board of Directors is consistent with the CC&Rs, the Reciprocal Easement, and governing law.

Boston Edison Company: Massachusetts Electric Company:

Uniform Rules of Practice Circuit Court of Illinois Nineteenth Judicial Circuit

Recent Case Law & Legislation Affecting The Design-Build Industry

Best Practices for Mortgage Servicing and Foreclosure Compliance

LOAN SERVICING AND EQUITY INTEREST AGREEMENT

Case 1:15-cv LG-RHW Document 62 Filed 10/02/15 Page 1 of 11

INTRODUCTION TO ILLINOIS MORTGAGE FORECLOSURE PROCESS

SUPREME COURT OF ALABAMA

TITLE LOAN AGREEMENT

American Land Title Association Revised 10/17/92 Section II-1 POLICY OF TITLE INSURANCE. Issued by BLANK TITLE INSURANCE COMPANY

EMBARQ Local Terms of Service For Residential Customers

Information & Instructions: Demand letter opportunity to cure and intent to accelerate the note

PROPERTY MANAGEMENT AGREEMENT

Form 3928 ( ) LAND TITLES ACT (ALBERTA) SET OF STANDARD FORM MORTGAGE TERMS COLLATERAL MORTGAGE (PERSONAL LENDING)

DEVELOPER EXTENSION AGREEMENT

3/4/2016. Claims for Breach of Contract. Claims for Breach of Contract

IN THE SUPREME COURT OF THE STATE OF DELAWARE

NOTICE OF SETTLEMENT

PROPERTY MANAGEMENT AGREEMENT

FANNIE MAE/FREDDIE MAC CONDO/PUD GUIDELINES

COLLECTION POLICY FOR DELINQUENT ASSESSMENTS CATHEDRAL VILLAS OWNERS ASSOCIATION

Honda Auto Receivables Owner Trust. American Honda Receivables LLC. American Honda Finance Corporation

Terms & Conditions for Online Offers to Purchase

Transcription:

POWERPOINT SLIDES NEW CASE LAW THURSDAY GENERAL SESSION 3:40 4:40 PM SPEAKERS David F. Feingold, Esq. Michael J. Hughes., Esq. 2 0 1 5 C A C M, I n c. - L a w S e m i n a r - A l l r i g h t s r e s e r v e d.

New Cases and Case Law SPEAKERS David F. Feingold, Esq. Michael J. Hughes, Esq. Case Law What s the Point? 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 1

Published Appellate Cases Unpublished Appellate Cases Trial Court Cases Published Appellate Cases Suing the Architect Beacon Residential Community Association v. Skidmore 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 2

WHAT HAPPENED? High Rise condominium defect action Architect sued for design defects - solar heat gain in high rise caused by selected windows and design Architect claims no duty to association (buyers) YOU BE THE JUDGE! Can an architect be sued by future owners of a residential project for negligence? Yes No WHAT DID THE COURT DECIDE? Architects can be sued by future owners Three part test: 1. Close connection between negligent conduct and injury? 2. Clear and definable class intended to be affected by the work? 3. Did the owners have ordering options that could have protected them? 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 3

TRENDING ISSUES Architects and engineers will be scrutinized HOA renovation projects pay attention to indemnities, limitation of liability clauses, and insurance issues STANDING TO SUE Market Lofts Community Association v. 9 th Street Market Lofts LLC WHAT HAPPENED? 267 unit condominium project Agreement between developer and adjacent parking structure owner for perpetual no-cost parking rights for condominium purchasers Developer-controlled board eliminates no-cost parking deal in a new agreement Owner controlled board later sues developer for breach of fiduciary duty and to rescind new agreement 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 4

Developers claimed the association lacked standing (the right) to sue, arguing that association members were damaged, not the association itself YOU BE THE JUDGE! Did the association have standing to sue the developer and seek as damages the money that the owners had to pay for the parking? Yes No WHAT DID THE COURT DECIDE? Yes -- the association can sue An association has standing to sue the developer for negligence and self-dealing as a representative of the owners when: An ascertainable class of owners exists A well-defined community of interest exists 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 5

TRENDING ISSUES Reaffirms associations right to sue in a representative capacity for harm done to the owners Developers can be held liable when they are controlling members of a board Watch for self dealing or conflicts of interest! ASSESSMENT COLLECTION - REJECTION OF PARTIAL PAYMENTS Huntington Continental Town House Assn., Inc. v. Miner WHAT HAPPENED? Association sued homeowners to foreclose assessment lien Homeowners made partial payments -- principal only no late fees or collection costs Association rejected partial payments 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 6

YOU BE THE JUDGE! Was the association entitled to reject partial payment so that foreclosure could proceed? Yes? No? WHAT DID THE COURT DECIDE? Associations must accept partial payments that reduce delinquent assessments owed even after foreclosure proceedings commence Associations must accept partial payments even if such payments do not include late fees, costs of collection, attorneys fees, etc. Partial payments that cover the principal preclude associations from proceeding with foreclosure TRENDING ISSUES What to do? Civil Code 5720 foreclosure thresholds: $1800 12 months delinquent 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 7

FREE SPEECH PROTECTION FOR BOARD MEMBER ACTS OR STATEMENTS Talega Maintenance Corporation v. Standard Pacific Construction WHAT HAPPENED? Association sued developer for defective trails Developer directors named as defendants Association alleged fraud, negligence, and breach of fiduciary duty for directors: Statements about responsibility for trail repairs Votes at meetings to use association funds to repair trails Anti SLAPP Motion CCP 425.16 Protection for Strategic Lawsuits Against Public Participation Defendants move to strike, claiming lawsuit is barred because the claims based on protected activity Prior cases protected HOA directors from certain claims found to be protected free speech 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 8

YOU BE THE JUDGE! Can the director defendants dismiss the lawsuit because their actions on the board constituted protected activity? - Yes - No WHAT DID THE COURT DECIDE? Directors acts of withholding information and improperly expending HOA funds were not protected free speech The statements were made in a public forum, but were not a public issue because no ongoing controversy TRENDING ISSUES Directors may be held liable for actions as association directors But free speech rights exist in HOA s for directors and members Don t SLAPP anyone and know when you are being SLAPPED 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 9

ATTORNEY-CLIENT PRIVILEGE Seahaus La Jolla Owners Association v. Superior Court WHAT HAPPENED? Construction defect action against developer Association s attorney wrote letters and communicated with the members Developer sought access to those member communications, claiming not attorney client privileged YOU BE THE JUDGE! Were communications between the attorney and members who were not directors protected by the attorney client privilege? Yes No 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 10

WHAT DID THE COURT DECIDE? Attorney s communications with members were protected by the attorney-client privilege Communications were necessary for attorney to pursue construction defect litigation on behalf of the association TRENDING ISSUES Protecting privilege as to third parties is not guaranteed don t assume it will be. Can members demand access to communications with HOA general counsel? ALTERNATIVE TO SB 800 DISPUTE RESOLUTION PROCESS ESTABLISHED BY DEVELOPER McCaffrey Group, Inc. v. Superior Court 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 11

WHAT HAPPENED? Developer set forth alternative dispute resolution procedures in the sales contracts and warranties opted out of SB 800 Right to Repair Act requirements Owners alleged the dispute resolution process was unconscionable because: Owners had no bargaining or negotiation power Process one sided and did not contain any deadlines for completion YOU BE THE JUDGE! Could the developer enforce the dispute resolution procedure it created that contained no deadlines? - Yes - No 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 12

WHAT DID THE COURT DECIDE? Developer s alternative dispute resolution procedures were not unconscionable Not so one-sided as to shock the conscience and good faith implied in all contracts Court orders process to be followed TRENDING ISSUES Consistent with findings of the California Supreme Court that developers can insert construction defect dispute resolution requirements in CC&Rs What about CC&R amendments to control member suits? NO COST ASSESSMENT COLLECTIONS Hanson v. JQD, L.L.C. TRIAL COURT PRELIMINARY DECISION 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 13

WHAT HAPPENED? Association retained firm to collect delinquent assessments under its no cost program Owner attempt to pay principal only was rejected by collection firm and assessment lien recorded Owner sues alleging collection firm had no right to costs if not charging costs to association Defendant filed motion to dismiss YOU BE THE JUDGE! Should the case be dismissed because an owner is liable for assessment collection costs even if those costs are not incurred by the association? Yes No WHAT DID THE COURT DECIDE? Case not dismissed, Trial Court found that owners are liable for collection fees charged by vendors only to the extent that those fees have actually been incurred by the association Decision was preliminary! 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 14

TRENDING ISSUES Impact on future non-judicial collection actions? No cost collection services are being highly scrutinized by courts and local district attorneys Stay tuned for further developments RENTAL RESTRICTION CHALLENGED Guttman v. Glen Towers Owners Association, Inc. (Unpublished) WHAT HAPPENED? 61 unit condominium building Single Units were maid units with no kitchen on first floor, only owners of Master Units upstairs could own Only family and other household members of the Master Unit (including domestic servants or guests) could occupy a Single Unit 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 15

Owner since the 1970 s began violating restriction in the 1990 s by renting consistently lied about use HOA sued in 2010 Owner claimed restriction unenforceable YOU BE THE JUDGE! Is a CC&R provision restricting the rental of a condominium unit enforceable? Yes No WHAT DID THE COURT DECIDE? Court found that the occupancy restrictions of the Single Units were reasonable and enforceable No waiver by HOA burden is on party claiming waiver of a right to enforce 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 16

Trending Issues Vacation Rentals -- Airbnb, HomeAway, VRBO, Flipkey House Swap Homeexchange, lovehomeswap Enforcement of Rental Restrictions difficult to police and enforce Airbnb laws, e.g., San Francisco As of February 2015, allows turning homes into ad-hoc hotels FANNIE MAE AND DELINQUENT ASSESSMENTS Federal National Mortgage Association v. Rothman, et al. (Unpublished) WHAT HAPPENED? Fannie Mae refused to pay assessments on foreclosed properties Associations recorded liens by attorney Rothman (which included his collection costs, interest and late charges) against the Fannie Mae properties 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 17

Fannie Mae sued Rothman and the associations arguing charges excessive and that Rothman acted with fraud, malice and in bad faith Claimed charges included pre foreclosure assessments, fees and costs YOU BE THE JUDGE! Was Fannie Mae obligated to pay delinquent amounts that accrued before a foreclosure? Yes No WHAT DID THE COURT DECIDE? Fannie Mae was not liable for pre-foreclosure assessments and costs and fees but was responsible to pay post foreclosure assessments and fees and costs 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 18

TRENDING ISSUES Watch for demands on foreclosing lenders are you asking for pre-foreclosure delinquencies? Judicial Deference in Architectural Decisions Harper v. Canyon Hills Community Association (Unpublished) WHAT HAPPENED? Owner sues neighbor for building home and HOA for approving project HOA files for summary judgment, trial court grants motion finding that rule of judicial deference applies and burden of proof was on the owner to show lack of good faith on HOA s part 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 19

YOU BE THE JUDGE! Is it the owner s burden to prove that HOA did not act in good faith when enforcing architectural standards? Yes No WHAT DID THE COURT DECIDE? Appellate Court reversed the Trial Court, finding burden of proof was on HOA, not owner TRENDING ISSUES Highlights importance of documenting authority, reasonable inquiry, good faith and best interests of the community, in all association decisions 2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 20

2 0 1 5 C A C M, I n c. - A l l r i g h t s r e s e r v e d. 21