Real Estate Advisor Law Blog

Real Estate Advisor Law Blog

Category Archives: Litigation Issues

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Gunfire Leaving Your Property? You Might be a Nuisance

Posted in General Legal Issues, Insurance/Risk Management Issues, Litigation Issues
Ohio’s Twelfth District Court of Appeals issued an interesting opinion earlier this year that wove together issues of statutory interpretation, expert testimony, property rights and nuisance. The end result? If you have bullets flying off your property, you might be strictly liable for nuisance.   Before the court in Batelle Memorial Inst. v. Big Darby Creek was … Continue Reading

Necessity for Fair Housing Act Compliance Amplified by Recent Court Rulings

Posted in Construction Related Issues, Legislative Update, Litigation Issues, Real Estate Tools
The Situation: Certain covered dwellings that are not designed or constructed in strict compliance with the Fair Housing Act are increasingly subject to suit, with strict liability befalling developers, designers, and contractors alike.  In fact, contractors are strictly liable for FHA violations even if they correctly follow a designer’s noncompliant drawings.  Further, courts across America are … Continue Reading

Supreme Court Rules Beach Additions Not Compensable Takings

Posted in Environmental Issues, General Legal Issues, Litigation Issues, Retail Industry Issues
Truckloads of sand will begin cascading across hurricane-battered beaches along the Destin and Walton County shorelines, thanks to a recent 8-0 decision by the Supreme Court. Coastal homeowners originally sued Florida arguing that the Beach Erosion Control Program (BECP) would cause the value of their homes to decline, turning their “oceanfront” property into “ocean view” … Continue Reading

Performance and Payment Bond for Public Project Deemed Discretionary

Posted in Construction Related Issues, Development Issues, Litigation Issues
In the much-publicized "Kenwood Towne Place" litigation in Cincinnati, which involves over $40MM in lien claims, presiding Judge Beth Myers issued a Decision and Entry that disposed of subcontractor claims against the Port Authority of Greater Cincinnati (the Public Authority involved with the project).  The Court dismissed the subcontractors’ claims for takings and negligence.  One aspect … Continue Reading

Cognovit Update

Posted in Bankruptcy/Creditor's Rights Issues, Finance Issues, Litigation Issues
Ohio is one of the few remaining states that still enforce cognovit provisions in promissory notes and other loan documents. A cognovit provision allows a creditor to take judgment immediately against a borrower upon the borrower’s default without having to endure the time, expense, and risk of a lawsuit. Cognovit provisions are only enforceable in … Continue Reading

Losing Priority: The Risk of Noninsider Equitable Subordination

Posted in Bankruptcy/Creditor's Rights Issues, Finance Issues, Litigation Issues
Following an era of relaxed standards for issuing loans, lenders must be aware of a bankruptcy court’s ability to subordinate liens for equitable reasons. On May 13, 2009, in In re Yellowstone Mountain Club, the Bankruptcy Court for the District of Montana issued an order subordinating the secured lender’s $232 million claim below the (i) debtor-in-possession … Continue Reading

The Lake Erie Shoreline, Landowner Rights, and the Public Trust – Round 2

Posted in Environmental Issues, Legislative Update, Litigation Issues
In December 2007, a Lake County Common Pleas Court judge issued a landmark decision holding, among other things, that an owner of real estate that touches Lake Erie owns title extending as far as the water’s edge. State ex rel. Merrill v. Ohio Dept. of Natural Resources (2007), Lake County Common Pleas Case No. 04CV001080. Lake County … Continue Reading

Foreclosure Rescue Scams Proliferating

Posted in Finance Issues, Litigation Issues
Where there’s trouble, there’s trouble. As a growing number of homeowners have defaulted or neared default on their mortgages, numerous schemes have cropped up taking advantage of their willingness to do whatever it takes to save their homes.    The Court in State v. Cicerchi, 2009 Ohio 2249 (Ohio Ct. App. 2009) took the time to … Continue Reading

Follow the (Note’s) Instructions

Posted in Finance Issues, Litigation Issues
A helpful reminder to lenders – if you’re going to foreclose, read the note and mortgage and do what they say. In a recent Ohio Court of Appeals case, the bank failed to follow these instructions and was rewarded by having its foreclosure complaint dismissed.  The borrower missed a payment on her mortgage and the bank … Continue Reading

Lien on Me: Strategies for Resolving Mechanics’ Lien Claims

Posted in Construction Related Issues, Litigation Issues, Real Estate Tools
A mechanics’ lien claim can give the contractor, subcontractor or material supplier making the claim a significant amount of leverage over a property owner in a payment dispute. This makes sense, of course, because the concept behind mechanics’ lien law is to provide some assurance that people will receive payment for work and materials they provide … Continue Reading

Ohio Lenders Precluded from Bringing Third Complaint on Same Note

Posted in Finance Issues, Litigation Issues
  In U.S. Bank National Association  v. Gullotta, 120 Ohio St 3d 399, the Ohio Supreme Court decided that multiple actions under the same note and mortgage are subject to the two-dismissal rule and res judicata preclusion. The decision could have far-reaching implications for lenders seeking to workout loans with troubled borrowers.    The history of the … Continue Reading

You Did What With My Money?!

Posted in Bankruptcy/Creditor's Rights Issues, Litigation Issues, Tax Issues, Title Insurance
               On November 26, 2008, LandAmerica Financial Group, Inc. (“LandAmerica”) and its affiliate, LandAmerica 1031 Exchange Services, Inc. (“LES”) filed for Chapter 11 protection from creditors.  LES abruptly ceased its 1031 exchange intermediary business two days prior to the bankruptcy filing and LandAmerica sold its Lawyers Title and Commonwealth Title … Continue Reading

A Guide to Dealing with Increased Delinquencies in Condominium and Homeowners’ Associations

Posted in Bankruptcy/Creditor's Rights Issues, Condominiums, Litigation Issues
According to the Community Associations Institute, nearly 60 million people across the country live in association-governed communities. Many of these communities have been severely affected by the current economic downturn and increase in foreclosure rates. In a condominium or homeowners’ association, delinquencies and foreclosures create a ripple effect that impacts all owners. Once an owner ceases paying … Continue Reading

Ohio’s Foreclosure Prevention Task Force – Mission Accomplished?

Posted in Finance Issues, Legislative Update, Litigation Issues
 In March 2007, Governor Strickland created the “Ohio Foreclosure Prevention Task Force” to address the ever-increasing number of foreclosures plaguing the state. The group’s final report, issued in September 2007, identified 27 recommendations for state action. Since the rise in foreclosures likely won’t be going away anytime soon, perhaps it’s appropriate to take stock of Ohio’s progress … Continue Reading

The CRO Program: Landowner and Lender Responsibility when a Regulated Facility Closes

Posted in Environmental Issues, Finance Issues, Legislative Update, Litigation Issues
On January 27, 2009, the front page of the Columbus Dispatch read, “44,000 Jobs Gone.”Other articles report of companies shuttering their facilities or filing bankruptcy. As one affected employee interviewed for the Dispatch article succinctly stated, “It’s scary.” And it’s no less scary for landowners and lenders dealing with properties that have been abandoned.  Landowners whose tenants … Continue Reading

Lender Liability – Minimizing the Risk

Posted in Finance Issues, Litigation Issues
A side effect of the foreclosure crisis has been a growing concern among lending institutions over the possibility of “lender liability.” Lender liability encompasses any number of actions that may be asserted by a borrower against a lender based on either the lending process or final loan documents. Borrowers have been seeking new and inventive ways of avoiding foreclosure, … Continue Reading
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