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Tuesday
May012012

Another Blow for Property Owners Challenging Foreclosure

Business LitigationSan Fernando Valley Business Litigation Lawyer

Nicholas Kanter
818.907.3289

When challenging a foreclosure sale, property owners look to defects or irregularities in the foreclosure process, which is strictly regulated by California’s Civil Code, to have the sale enjoined or rescinded.  Recently, one section of the Civil Code has received a lot of attention.

Civil Code Section 2932.5 requires the assignee of a mortgage to record the assignment prior to exercising a power to sell real property.  Parties have relied on this section to challenge foreclosure sales where a deed of trust is assigned, but not recorded, until after the sale. 

California case law, dating back to 1908, established that the predecessor statute to section 2932.5 (section 858) applies only to mortgages, not deeds of trust (Stockwell v. Barnum). 

However, federal and state courts have recently disagreed over the application of Section 2932.5 to deeds of trust.  On the federal side, e.g., Tamburri v. Suntrust Mortgage, Inc., (2011), and In re Cruz (2011), courts have applied Section 2932.5 to deeds of trust.  On the state side, the court in Calvo v. HSBC Bank USA, N.A. (2011), followed the Stockwell decision.

In support of Stockwell and Calvo, the Court of Appeal in Haynes v. EMC Mortgage Corp., (filed April 9, 2012, publication ordered April 24, 2012) found that Section 2932.5 does not apply to deeds of trust.  The Haynes court rejected Haynes’ reliance on the federal decisions finding:

We of course, are not bound by federal decisions on matters of state law…While our Supreme Court has noted in passing on issues other than the interpretation of section 2932.5, that “a deed of trust is tantamount to a mortgage with a power of sale” [citation], the court has not addressed section 2932.5 and the statute, by its plain terms, does not apply to deeds of trust.  

The court also explained why section 2932.5 applies to mortgages but not deeds of trust:

Section 2932.5 requires the recorded assignment of a mortgage so that prospective purchaser knows that the mortgagee has the authority to exercise the power of sale.  This is not necessary when a deed of trust is involved, as the trustee conducts the sale and transfers title. 

The Haynes decision, along with the holding in Calvo, reinforces long-standing California case law that Civil Code Section 2932.5 does not apply to deeds of trust, thus all but taking away a party’s ability to challenge a non-judicial foreclosure sale based on an unrecorded assignment.  

Nicholas Kanter is a Business Litigation Attorney in our Real Estate Practice Group. Contact him via e-mail: nkanter@lewitthackman.com.




 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Wednesday
Apr252012

Grey Divorce | Things to Consider When Divorcing After Decades of Marriage

Encino Tarzana Divorce LawyerSpousal Support Attorney

 

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

The Japanese call it Retired Husband Syndrome. Here in America, the phenomenon is not so cut and dried.

We simply call it Grey Divorce, a trend that sees twice as many marriage dissolutions for the Baby Boomer generation now, than there were 20 years ago, according to the National Center for Family and Marriage Research at Bowling Green State University.

You may have seen the trend for a while: Tipper and Al Gore splitting after 40 years of marriage; Susan Sarandon and Tim Robbins after 23 years; or even the 99 year old in Italy who jammed the news wires last December because he sought a divorce from his wife of 77 years. (The gentleman cites infidelity as the cause, though his wife's affair occurred in the 1940s, and he himself never knew until recently.)

The reasons are varied, ranging from extra-marital affairs, to more financial independence for women, the restlessness of empty-nest syndrome, or the ever-present "growing apart" phenomenon we hear of so often.  A change in lifestyle (like retirement) can accentuate a marriage's problems, and the differing goals of each partner can put strain on a relationship.

Whatever the cause, couples undergoing a Grey Divorce have unique problems in the dissolution process. Sure, the children may be grown so they won't have to worry about child custody or visitation schedules, but there are other elements to consider.

 

Older Divorcing Couples & More Valuable Assets

 


Spousal Support – Many Baby Boomer couples will live longer than the generations that preceded them, and they tend to be healthier than those generations as well. If the spouses are retired there is fixed income that now needs to be used to cover expenses for two households. Thus, one spouse may need to return to work to make ends meet.

People going through a Grey Divorce should remember to consider their future needs.

Retirement Benefits – Whether a spouse took care of the children or worked outside of the home, both parties in a Grey Divorce will need, and be entitled to, retirement benefits. The retirement accounts will be divided.

Financial Management – It's often challenging for a spouse who hasn't handled the finances before to have to do it all of a sudden. It's important to work with a CPA or financial planner to make sure enough money is set aside for taxes, and that a budget is established to meet living expenses.

There are other considerations as well. Older divorced people who don't have any children should think about updating their retirement and estate beneficiaries…9 times out of 10 the beneficiaries are the ex-spouses.

Whatever the reasons for a divorce, there are always obstacles that will need to be considered carefully before they can be overcome. An experienced family law attorney can help with many of these, and recommend insurance or estate planning professionals to help with the others.

 

Vanessa Soto Nellis is a Divorce and Family Law Mediation Attorney in our Family Law Practice Group. You may contact her via e-mail: vnellis@lewitthackman.com.

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Wednesday
Apr182012

Courtroom Closures Bring State Budget Crisis to Local Communities

 

by Stephan Mihalovits

 

The upcoming wave of courtroom closures across southern California is serious – 24  civil courtrooms, 24 criminal courtrooms, an innovative juvenile court, and others will go dark.  Many experienced court employees will lose their jobs. 

One might think these cuts represent the court system’s fair share in a time of red ink.  But it seems foolish to punish an area of government that has continually embraced efficiency in the pursuit of justice and public service. 

 It is also foolish (and perhaps against the spirit of the law) to, at once command the courts to reduce delay, while at the same time, reduce the courts’ resources.   Although trial court delay has been a significant problem in the past, problems will become even more evident as resources are stripped bare. 

True enough, courts are not revenue generators, they only use resources. 

But the value of the judicial branch is not measurable by the resources it uses.  The value of the court system is in providing residents with a trustworthy venue for the efficient and competent administration of justice.  

Court Closures Go Against the Grain. . .and the Law?


The judicial branch in California has historically held itself accountable.  In 1986, the Trial Court Delay Reduction Act became law, and courts embraced efforts to reduce delays. 

“The Trial Court Delay Reduction Act mandates trial courts to resolve matters before them as expeditiously as possible, in recognition that delay reduces the chance that justice will in fact be done…”  Moyal v. Lanphear (1989). 

Delay reduction measures are based on the important principle that “litigation from commencement to resolution, should require only that time reasonably necessary for pleadings, discovery, preparation, and court events… any additional elapsed time is delay and should be eliminated.”  Govt. Code. § 68603(a). 

The judicial branch connects efficiency with its mission of justice and public service.  In a 2009 report advocating more delay reduction measures through law, the Judicial Council recognized, “accountability is more than a commitment between co-equal branches of government: it is a necessary counterpart to judicial independence and represents an obligation of the judicial branch to the people of California.”  Thus, an undue reduction in court resources directly impacts the courts’ obligation to serve the state’s residents.

Drastic budget cuts to the system are detrimental to the courts’ mission.  Courts will not be able to administer justice efficiently when resources are taken away.  Delay will become more likely and more common. 

One last lament concerns the abandonment of an innovative court for the resolution of juvenile problems that are not appropriate for the more serious detention system.  Parents and judicial officers seek to deter young people from choices that may lead to prison. 

Talk about pound foolish.  A young person who may have been deterred by innovative thinking in dispute resolution might now choose a different path.  Without prevention, that young person may end up in state prison, costing taxpayers hundreds of thousands in preventable costs. 

It is short-sighted to ignore the immense value our state enjoys from having a trusted forum for the lawful resolution of disputes.  As the court system is asked to carry an even heavier load, let’s hope Sacramento will see the value of an adequately-funded judicial branch. 

Stephan Mihalovits is a Business Litigation Attorney at our Firm. You may reach him by e-mail.




 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Apr122012

Landmark Decision: CA Supreme Court Decides Employers Are Not Meal Police

Lawyer for EmployersEmployment Defense Attorney Los Angeles

 

by Sue M. Bendavid
818.907.3220

Employer Lawyer Los Angeles Google+

 

Employees of Brinker Restaurant Corporation (the parent company of Chili’s, Maggiano's, and Macaroni Grill, among others) brought a class action against Brinker alleging years of meal and rest period violations.

The employees claimed Brinker required them to take early lunches and then work an additional five to nine hours without a second meal break – and that this requirement violated wage and hour laws.

The plaintiffs also alleged employees were required to work off the clock during meal periods; that managers altered employee time cards; and that Brinker had an obligation to ensure employees take their meal periods.

The trial court ruled mostly for the employees, but Brinker appealed, and the Appellate Court ruled in favor of the employer and determined the claim could not proceed as a class action. The California Supreme Court granted review to resolve the questions regarding the nature of meal and rest breaks, how they should be provided, as well as whether or not the claims presented should be treated in a class action setting. The Court heard arguments in November, and delivered its decision today.

According to the decision written by Associate Justice Kathryn M. Werdegar, the most contentious issue proved to be whether employers must police meal periods to ensure employees take those breaks without doing any work in a 30 minute time frame.

 

The Supreme Court's Decision – Providing vs. Policing

 

The Supreme Court concluded an employer's obligation ends with providing the meal period. Once a meal break begins, an employee is "at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done."

The Court also decided that though first meal break must be provided no later than five hours into a shift, the employer need not schedule another meal break within five hours after the first meal period ended. Rather, employers must only provide a second meal break after 10 hours of work.

 

Employee Break Times Put to Rest Too

 

The Supreme Court cited Industrial Welfare Commission wage order rules, deciding that employees are entitled to a 10 minute break in the middle of each four hour work period (or “major fraction thereof”), meaning for many employees a rest break should be permitted between 3.5 and 6.0 hours of work into a shift. However, rest breaks are not necessarily required for a specific time before or after the meal period.

 

The Takeaway

 

All in all, the decision today is good news for employers, as it limits the scope of responsibility regarding meal periods:

“We conclude that under Wage Order No. 5 and Labor Code section 512, subdivision (a), an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.”

 

Sue M. Bendavid is the Chair of our Employment Practice Group. Employers with questions regarding today's landmark decision can reach her at 818.990.2120.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Thursday
Mar292012

Social Networking and Recruiting - Should Employers Ask for Facebook Passwords?

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

 

Many employers these days are incorporating policies on social networking in their employee handbooks. Usually the policies address whether or not employees can use work computers and other devices to access personal accounts such as Facebook, Twitter, etc.

But according to a recent article from the Associated Press, there is a growing trend in which Human Resources professionals are screening applicants through their social media accounts by asking for passwords to Facebook and other personal pages, or requesting applicants log into their Facebook accounts on a company computer. Some recruiters are also asking applicants to add them as a friend on the social network.

This practice appears to be particularly common in the law enforcement, government or security sectors, though employers in other industries (such as retailer Sears) are now asking as well.

While the law does not currently address the direct implications of social media use in recruiting, there are a number of pending court cases involving social media and applicants/employees that should provide some guidance to employers. Some states, such as Illinois and Maryland, are also attempting to pass legislation that would prohibit employers from asking for an applicant's social media login and password.

There is the additional concern that requesting an applicant’s password violates Facebook’s Terms of Service, which states: “You will not share your password…let anyone else access your account, or do anything else that might jeopardize the security of your account.”  Further, while employers generally can’t ask applicants about certain protected categories, such as race, religion, age, sexual preference, marital status, or disability, gaining access to a social media site would likely reveal such information without employers having to directly ask for it.

While an applicant may lawfully refuse a password request, in today’s economy, many choose not to so as not to risk losing the job opportunity.

So what is an employer to do?

 

The DOs and DON'Ts of Social Networking and Recruiting

 

According to a study commissioned by Microsoft and conducted by market research company Cross-Tab, about 70 percent of HR representatives report rejecting an applicant because of information found online. Many of the companies the representatives recruit for actually mandate online screening of candidates as part of the hiring process.

Employers using social media to s­creen job-seekers are advised: 

  1. If you use social media in your recruiting, use it consistently (i.e., conduct the same searches at the same point in the process for every applicant). 
  2. Don't create an internet alias to gain access to a candidate's personal profile. In other words, don't set up a John or Jane Doe account to Facebook "friend" your applicants. 
  3. Keep a record of your search by printing the page or saving a screen shot, especially if the search reveals something which raises questions about the candidate.
  4. Notify applicants that you will be reviewing any and all public social media accounts. 
  5. If you perform a background check, make sure you comply with the Federal Fair Credit and Reporting Act, as well as state regulations. 

Use any information you obtain lawfully, and not to make any final employment decisions. 

Nicole Kamm is an Employment Defense Attorney in the San Fernando Valley. You may reach her by calling 818.990.2120, or via e:mail: nkamm@lewitthackman.com

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120