Uncategorized

/Uncategorized

Lenders Are Not Required To Affirmatively “Waive” Security To Sue On A Note

The Arizona Court of Appeals recently ruled on Compass v. Bennett, holding that second-position lenders are not required to “affirmatively and expressly” release a deeds of trust in order to “elect to waive the security” as a prerequisite to suing on a note. The case arose when the Bennetts obtained a $1 million home equity [...]

By | June 6th, 2016|Uncategorized|0 Comments

The Ins and Outs of Unpaid Wages in Arizona

It seems obvious.  Employees should be paid the wages they have earned, whether those wages be from hours worked, commissions, bonuses, et cetera.  But, what happens when an employer fails to compensate an employee for his or her labor?  In Arizona, this hypothetical is governed by ARS Title 23, Article 7. A.R.S. § 23-351(C) states [...]

By | June 2nd, 2016|Uncategorized|0 Comments

SCOTUS Provides Clarity on “Actual Fraud” in Bankruptcy Context

The United States Supreme Court issued its decision in Husky International Electronics, Inc. v. Ritz, eliminating some ambiguity behind what constitutes “actual fraud” in the bankruptcy context.  The issue in this case was whether “actual fraud” requires a false representation or whether it encompasses other traditional forms of fraud that can be accomplished without a [...]

By | May 26th, 2016|Uncategorized|0 Comments

Execution Upon Stock Interests of a Judgment Debtor

Arizona law gives Judgment Creditors a remedy to aid in the collection of a judgment when the Judgment Debtor holds stock. The Judgment Creditor can ask the court to enter an order in aid of collection and authorize the execution upon stock interests of Judgment Debtor. In accordance with A.R.S. § 47-8112(E) and § 12-1559(5), [...]

By | November 19th, 2015|Uncategorized|0 Comments

No Lien Stripping in Chapter 7 for “Underwater” Junior Liens on Real Property

The United States Supreme Court issued its decision in Bank of America v. Caulkett, which is a solid guidepost in the bankruptcy journey for both creditors and debtors alike.  The issue confronted by the Supreme Court was whether a wholly unsecured junior mortgage lien may be stripped off pursuant to §506(d) in a Chapter 7 [...]

By | October 19th, 2015|Uncategorized|0 Comments

Bankruptcy and Perfection of Motor Vehicle Liens

Many times debtors will purchase a vehicle on the eve of a bankruptcy, and often the bankruptcy happens within thirty days following the purchase. The creditor in Arizona that finances the purchase has a statutory safe harbor period to perfect its lien interest on the vehicle. The timing of a how and when a lien gets [...]

By | July 28th, 2015|Uncategorized|0 Comments

Exemptions in Bankruptcy are fixed at the petition date

In the case of Rachael Anne Earl, 13-bk-18751-EPB, Judge Ballinger issued a detailed minute entry order addressing whether it is permissible for a debtor to amend their bankruptcy schedules to claim a different property under the homestead exemption than the one originally claimed. Judge Ballinger ruled that for a property to qualify for the homestead [...]

By | June 3rd, 2015|Uncategorized|0 Comments

BMO HARRIS BANK v. WILDWOOD CREEK RANCH

The Arizona Supreme Court issued an opinion relating to the anti-deficiency statute, A.R.S. § 33-814(G). This was the second opinion in less than 30 days dealing with certain aspects of the anti-deficiency statute. The significance of this case is that it overruled a related case interpreting the anti-deficiency statute, and it further clarified the law. [...]

By | May 1st, 2015|Uncategorized|0 Comments

Insufficient Funds Checks (A.R.S. § 12-671)

In this ever-changing world that we live in, the use of paper checks is steadily decreasing. The use of paper checks is decreasing for a number of reasons. One of those reasons is that financial institutions discourage their use. There are handling costs for paper checks, and the risk of third-party fraud is higher. Another [...]

By | April 6th, 2015|Uncategorized|0 Comments

Arizona Deficiency Litigation Case Update: CSA 13-101 Loop, LLC v. Loop 101, LLC

The Arizona Supreme Court issued an opinion clarifying Arizona Law addressing the waiver of statutory protections in loan documents.  The case specifically addresses when parties can waive their rights to a fair market value determination under A.R.S. § 33-814 following the trustee’s sale of real property.  A.R.S. § 33-814(A) entitles judgment debtors, including Guarantors, to have the [...]

By | January 13th, 2015|Uncategorized|0 Comments