HELOC: Separate Statute of Limitations for Each Payment

  The Court of Appeal, in Piedmont Capital Management, etc., v. McElfish, confirms that a HELOC agreement that requires the borrower to make monthly payments and to pay the full amount by a specific date, which also grants the lender discretion whether to accelerate the loan due to a missed payment, does not contemplate that a breach as to a monthly payment is a breach as to the full amount absent acceleration.

  Suit on the agreement was, therefore, timely as to all missed monthly payments within the four years preceding its filing and timely as to all future payments because those payments were accelerated within that four-year “look back” period. [The statute of limitations for a breach of contract claim is four years per Code Civ. Proc., § 337.]

Void Judgment; Proof of Service Signed by Party

  In Braugh v. Dow, a default judgment was determined to be void because the summons and complaint were served by the plaintiff — a party to the action. The court reasoned as follows: Continue reading

Disputing Attorney Fees

  Do you question an invoice from your lawyer? If so, the first thing you should do is to read your written attorney-client agreement. Often, you will find the answer to your question. If not, a prompt email or phone call for an explanation is the next step—perhaps there is a mistake. If brought to their attention promptly, attorneys are usually willing to discuss fees and charges and resolve issues favorably for the client. Continue reading

Change of Venue: Failure to Pay Transfer Fees Results in Dismissal

  The clerk’s mailing of a minute order to the parties is sufficient notice of the granting of a motion to transfer due to improper venue to start the 30-day clock running for payment of transfer fees. (Code of Civil Procedure section 399(a).) If transfer fees are not timely paid, dismissal is required.  (Southwestern Law School v. Benson (2019) BV032895, Appellate Division of the Los Angeles County Superior Court.)


Abstract of Judgment: Enforceable Upon Revival of Corporate Powers

  In Longview International, Inc. v. Stirling the Court of Appeal for the Sixth District concludes that the recording of an abstract of judgment is a procedural act that is retroactively validated once a suspended corporation’s powers are reinstated.

  An abstract of judgment recorded when a corporation is suspended for failure to pay franchise taxes is not void. At the time of recording, even though a corporation is suspended, the abstract of judgment is capable of being enforced upon the corporation obtaining a revival of its corporate powers. Revival retroactively validates the lien and makes the abstract enforceable.

  The fact that revival occurred after the transfer of property is of no merit. A recorded abstract that complies with all statutory requirements is not void and provides notice to the transferee that the judgment lien may be enforced upon revival of the corporation’s powers.

Same Creditor: Sold-Out Junior May Obtain Deficiency Judgment Following Nonjudicial Foreclosure of Senior Lien

  In Black Sky Capital, LLC v. Cobb, the California Supreme Court holds that Code of Civil Procedure section 580d—that prevents a foreclosing creditor at a nonjudicial foreclosure sale from collecting a deficiency judgment—does not prevent the same creditor holding two deeds of trust on the same property from recovering a deficiency judgment when its junior lien is extinguished by the nonjudicial foreclosure of its senior lien. Continue reading

1-Year Statute of Limitations: Malicious Prosecution Action Against Attorney

  The First Appellate District, in Connelly v. Bornstein, adds to the line of cases holding that a malicious prosecution action against an attorney is governed by Code of Civil Procedure section 340.6(a). That section imposes a one-year statute of limitations for actions “against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.”

  The result is contrary to the statute of limitation applicable to other litigants of a malicious prosecution claim. Other litigants are subject to the more general two-year statute of limitation set forth at Code of Civil Procedure section 335.1, applicable to injury to a person caused by the wrongful act or neglect of another.

“Trust Transfer Deed” Fails to Accomplish Transmutation

  A “Trust Transfer Deed” that purportedly granted husband’s interest in real property to wife failed to accomplish a transmutation.

  Pursuant to Family Code section 852(a) a transmutation is not valid unless made in writing by an express declaration by the party adversely affected. To satisfy the “express declaration” requirement the writing must state on its face that the characterization or ownership of the property is being changed. Extrinsic evidence is not permitted to prove an ambiguous writing. Therefore, the express declaration must unambiguously indicate a change in character or ownership of property for a valid transmutation. Continue reading

Foreclosure: Record Trustee’s Deed Before Serving 3-Day Notice

  When real property is purchased at a foreclosure sale, it is frequently necessary for the new owner to institute unlawful detainer proceedings to recover possession. Is it necessary for the Trustee’s Deed Upon Sale to record before a valid 3-day notice to quit is served?

  In Dr. Leevil, LLC v. Westlake Health Care Center, the California Supreme Court answered this question in the affirmative. In reversing the Court of Appeals, the Court held that duly perfected title, including the recording of the Trustee’s Deed Upon Sale, is required before a valid 3-day notice to quit may be served.

  Practice tip: after purchase at a foreclosure sale, duly perfect title and do not serve a 3-day notice to quit before the trustee’s deed records.


Anti-SLAPP Motion: Unavailable in Limited Civil Cases

  In writ proceedings, the Second Appellate District reverses the Los Angeles Superior Court Appellate Division and holds that a special motion to strike, or anti-SLAPP motion, pursuant to Code Civil Procedure section 425.16 may not be brought in a limited civil case. Continue reading