A 2013 decision from the Fifth District Court of Appeal (based in Fresno) has bedeviled the lending community. In Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, the court held that the borrower could state a “cognizable claim for wrongful foreclosure under the theory that the entity invoking the power of sale (i.e., Bank …
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Orcilla v. Big Sur, Inc. – Unconscionability in Loan Modification Supports Claim for Wrongful Foreclosure
The recent decision in Orcilla v. Big Sur, Inc. (Feb. 11, 2016) __ Cal. App.4th __ continues the litigation fallout from the second depression (referred to in other parts of the country as the Great Recession). In Orcilla v. Big Sur, the lender completed a nonjudicial foreclosure on the plaintiff’s residence. The borrower sued to …
Karl Llewellyn and the Theory of Rules
Karl Llewellyn was one of the leading lights of American jurisprudence from the 1930s through the 1950s. Not only was he the dean of Columbia Law School, he participated in the drafting of Article 2 of the Uniform Commercial Code, and was active in efforts to promote its enactment in the different states. Add this: …
In re Perl – 9th Circuit Changes Rules Relating to Bankruptcy Stay and California Eviction Law
The law of evictions – titled as “unlawful detainer” in California – is a technical area. The law has statutory roots as far back as the Forcible Entry Act of 1381, which prohibited the use of self-help to retake possession of real property. That remains an important concept in an action based on the unlawful …
The ABCs of Future Public Payments Law – Prof. Mark Burge
Strange how an idea that was once old can become new again. Roscoe Pound, Dean of the Harvard Law School, was a prolific legal writer in the 1920s and 1930s. From my perspective, his best work concerned the development of the American legal system from 1850 through 1900, as America reached the end of its …
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ChinaCast Education Corporation – Fraud of Officer Imputed to Corporation
Here is a recent decision that is not a surprise under a traditional agent-principal analysis. Even so, it has to sting, because the corporation loses twice – first, when it was defrauded by the former president, and second when the corporation was sued by shareholders for the diminished value of their securities. The fact pattern …
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Lawsuits in England in the 17th Century – As Bad as Today
The “High Commission” was a court specially established by the Crown in 1535 after the founding of the Church of England. As the head of state was also the head of the church, heresy became, in effect, an act of treason, giving the Crown a special interest in ecclesiastical matters. The jurisdiction of the High …
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Bankruptcy Filings Decrease Again in 2015
The federal bankruptcy courts publish detailed statistics on bankruptcy filings. California has four federal judicial districts, with Fresno located in the Eastern District. The 2011-2015 bankruptcy filings for the Eastern District of California continue to show a substantial decline, as shown in this table: Truly, the overall decline from 2011 to 2015 is astonishing, and …
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Dorsey v. Superior Court – No Attorneys Fees in Small Claims Cases
As the jurisdiction of small claims court has increased (now up to $10,000), attorneys are called on more frequently to assist on appeal. (Ground rule – attorneys are not permitted to assist at the original trial, only on appeal.) In Dorsey v. Superior Court (Oct. 22, 2015) __ Cal.App.4th __, “The small claims court dispute …
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Lord Mansfield and Sommersett’s Case
In 1927, Prof. William Holdsworth delivered four lectures on legal history to American audiences, which lectures were collected in Some Lessons from Our Legal History (The Macmillan Company 1928). Holdsworth, a law professor at Oxford, held “the oldest University Chair in English law in the world,” a chair first held by William Blackstone in 1758. …