Bankruptcy Law: Automatic Stay

Bankruptcy Law: Automatic Stay

BANKRUPTCY LAW (Automatic Stay): In en banc opinion, 9th Circuit holds that debtor can recover all fees spent in resisting creditor who violates automatic stay in seeking to collect debt (America’s Servicing Co. v. Schwartz-Tallard, originally issued 4/16/2014, San Francisco, modified Autumn 2015)

Real Estate: Assumption Of Lease

Real Estate: Assumption Of Lease

Where the new lessee (the persons who is going to inhabit the leased property) agrees to be bound by existing terms of the lease, the lessee is said to assume the lease (or, there has been an assumption of the lease). The lessee is responsible for the lease, according to all of the terms of the lease, or all terms otherwise explicitly accepted.

 

Real Estate: Legal Actions And Trusts

Real Estate: Legal Actions And Trusts

Sometimes, real estate is held in a trust. What happens when there is a legal action by or against a trust? A trust itself cannot sue or be sued. (Presta (2009) 179 CA4 909, 914). “As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust’s behalf.” (Estate of Bowles (2008) 169 CA4 684, 691) “A claim based on a contract entered into by a trustee in the trustee’s representative capacity . . . may be asserted against the trust by proceeding against the trustee in the trustee’s representative capacity . . .” (Calif. Prob. C. § 18004).

Both the trustee and anyone who thinks to sue the trust must keep these matters in mind, among other things.

Real Estate: Balloon Mortgage

Real Estate: Balloon Mortgage

Some mortgage terms don’t look like they sound. For example, a “balloon mortgage” is a mortgage loan in which the monthly payments are not large enough to repay the loan by the end of the term. So at the end of the term, the remaining balance comes due in a single large payment. (Source: Loan One Real Estate & Mortgage Glossary)

This means the borrower needs to be aware what is going to happen at the end of the loan repayment term.

9th Circuit: State Court Judgment Can’t Be Manipulated to Deprive Debtor of Federal Rights

9th Circuit: State Court Judgment Can’t Be Manipulated to Deprive Debtor of Federal Rights

A medical debt collector sued the patient debtor for non-payment of a medical bill. As part of its collection process, it sent an inaccurate description of the patient’s rights to the debtor. Based on this inaccuracy, the patient-debtor sued the debt collector under the Fair Debt Collection Practices Act (FDCPA).
The debt collector won its state court case before the debtor’s federal case went to trial, and it used the state court judgment to effectively include (and thus extinguish) the debtor’s federal cross-claims. It then sought the execution of the debt, including the federal claims, and dismissal of the debtor’s federal lawsuit.
The federal district court dismissed the debtor’s lawsuit, but the 9th Circuit reversed. The Court of Appeals pointed out that the FDCPA preempts inconsistent state court debt collection practices. To do otherwise would undercut the law. The debtor’s federal lawsuit was reinstated.

PATRICIA ARELLANO, Plaintiff-Appellant,
v.
CLARK COUNTY COLLECTION SERVICE, LLC; BORG LAW GROUP, LLC, Defendants-Appellees.
No. 16-15467 D.C. No. 2:15-cv-01424-
Argued and Submitted June 5, 2017, Pasadena, California
Filed November 17, 2017
Before: Sidney R. Thomas, Chief Judge, Stephen
From the Court:
“[T]he FDCPA does expressly preempt state laws “to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency,” 15 U.S.C. § 1692n. [Para.] In addition to evading liability and preventing Arellano from pursuing her potential federal claims, the collection agency has literally used the execution mechanism to collect debt from Arellano, and argues that she “has received the benefit of [the $250] reduction in her judgment.” But a debt collector cannot be allowed to use state law strategically toexecute on a debtor’s FDCPA claims against it under the guise of legitimate debt collection. Though the FDCPA does preserve debt collectors’ rights to collect what they are owed, the Act does not “authorize the bringing of legal actions by debt collectors.” See 15 U.S.C. § 1692i(b). Debt collectors cannot evade the restrictions of the Act by forcing a debtor’s claims to be auctioned, acquiring the claims, and dismissing them. To allow otherwise would thwart enforcement of the FDCPA and undermine its purpose. See 15 U.S.C. §§ 1692k, l.”

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