ROBERT I. LEVY

Attorney & Counselor at Law - A Professional Corporation

(510) 465-0025

Real Estate Law

WHAT CAN I DO IF I HAVE BEEN DEFRAUDED BY MY REAL ESTATE AGENT?

Real Estate Law

If I have been defrauded by my real estate agent in California, what can be done to recover the monies I have lost? Sadly, this is a question that I have heard more than once. A prospective purchaser of property has entrusted their finances with their real estate agent, who then takes the money and runs.

Fortunately, there are protections should this happen to you. First, in addition to being able to sue the real estate agent, the real estate broker is also responsible for the acts of their real estate agent, if the real estate agent’s activity falls within the scope of activity requiring a real estate license. What this means is that the real estate broker is liable for the acts of the real estate agent, if the activity was as a real estate agent.

Second, even if you have obtained a judgment against the real estate broker and/or real estate agent, but are unable to collect on that judgment, there is further recourse with the California Department of Real Estate, who maintains a “Recovery Account” to help get restitution for consumers who have been defrauded by a real estate agent or real estate broker, but despite efforts to collect, have been unable to collect from the real estate broker or real estate agent. For a useful article on how the Recovery Account works, see  https://www.businessandrealtylaw.com/what-is-the-california-department-of-real-estate-recovery-account-and-how-does-it-work/.

If you believe that you have been defrauded by a real estate broker, mortgage broker, or a real estate agent in the course of a transaction they handled for you, or you are a real estate broker or agent accused of fraud, please feel free to contact me at (510) 465-0025 or (925) 708-3306 to arrange for a consultation.

SUBCONTRACTOR STOP NOTICE CLAIMS IN CALIFORNIA PUBLIC WORKS PROJECTS

Business Law, Real Estate Law

It happens all too often in public works projects. A subcontractor who has done a significant amount of work, is not getting paid. For a small to mid-size subcontractor, failure to pay or delays in getting paid can have a disastrous effect on the subcontractor’s business.

In this situation, in California, the subcontractor’s greatest ally and tool to get paid is the Stop Notice. The Stop Notice causes the public agency “owner” to withhold the amount set forth in the Stop Notice by the subcontractor. The greater this amount, the greater the impact it has on the prime contractor. Once done properly, the Stop Notice can be a very effective tool to resolve any payment dispute between the contractor and the subcontractor. Further, by withholding the funds the subcontractor claims is owed to them, it assures the subcontractor that if their claim is valid, that they will ultimately get paid regardless of whether or not the contractor has the ability to pay.

Because the Stop Notice is such an important tool for a subcontractor in a public works project, it is essential that the subcontractor follows the statutory rules to perfect their stop notice rights, such as properly serving a Preliminary Notice.

If the filing of a Stop Notice is ineffective in getting the subcontractor paid, then the subcontractor’s next step is to initiate a lawsuit to enforce the Stop Notice, and assert other remedies, such as asserting a claim against the payment bond. Once at this juncture in the process, it is very important that the subcontractor, if they have not done so already, retain a real estate attorney that is familiar with the stop notice procedures and related remedies.

I regularly represent clients in the East Bay, California in Oakland, California, in Walnut Creek, California, and throughout the Bay Area, in stop notice and related disputes. If you have questions, or need representation by a California real estate attorney involving a stop notice or public works contract dispute, please feel free to contact me to discuss your case or to arrange for a consultation. I can be reached at (510) 465-0025 or (925) 708-3306.

REAL ESTATE CONTRACT DISPUTES

Real Estate Law

For most people, the purchasing of a home is the most significant and important transaction of their lifetime. This is because it is typically the most expensive transaction of their lifetime, and quite often the property they are purchasing will be their home for the majority of the remainder of their life.

Unfortunately because these transactions are so important to everyone involved, disputes will arise.

Real estate contract disputes include varying situations including, for example, when a buyer or seller refuses to complete the transaction, or when a seller fails to properly disclose defects relating to the property, or when there are title defects or clouds on title.

These disputes can involve a lot of different parties including the buyer, the seller, the buyer’s real estate broker and agent, the seller’s real estate broker and agent, title insurance companies, homeowner’s insurance companies, and home inspectors, among others.

As a consequence of the varied parties and the importance of the transaction, these disputes need to be handled carefully. A variety of strategic questions will need to be answered at the onset such as, do I need to demand mediation prior to initiating legal proceedings;

Should I first submit the claim to my insurance company or title insurance company;

Should I arbitrate the dispute or file a lawsuit; What is a lis pendens and what is its impact on the case and the outcome of the case;

What do I do if the other party ignores my demands for mediation or arbitration.

These are just a few of the issues that can come up early on in a real estate contract dispute. Therefore, it is important to get timely advice from a competent real estate attorney.

I regularly represent clients in the East Bay, California, in Oakland, California, in Walnut Creek, California, and throughout the Bay Area, in real estate contract disputes.

If you have questions, or need representation by a California real estate attorney involving a dispute regarding a real estate transaction, or are considering a lawsuit regarding a Real Estate sale or purchase, please feel free to contact me to discuss your case or to arrange for a consultation. I can be reached at (510) 465-0025 or (925) 708-3306.

COLLECTION OF A SECOND MORTGAGE AFTER THE FIRST MORTGAGE FORECLOSES

Foreclosure, Real Estate Law

Does a Property Owner Have Personal Liability on a Second Mortgage After the First Mortgage Is Foreclosd

This article addresses the hot topic of whether or not a lender that made a second mortgage on a California property can collect that debt after the first mortgage has foreclosed on the property, thereby eliminating the second mortgage lien on the property. This is commonly referred to as a sold out junior lien. This article will address whether or not a sold out junior lien can be collected by the owner/holder of the loan.

Does a Sold-Out Junior Lender Have the Right to Collect on the Debt

Whether or not a sold out junior lien-holder can initiate proceedings to collect the debt is ultimately a complicated legal question. Once the first mortgage forecloses, wiping out the lien belonging to the second mortgage loan, that loan essentially becomes an unsecured debt, very similar to a credit card debt.

Before that lender can even commence efforts to collect that debt after the foreclosure of the first mortgage, an evaluation needs to be completed to determine whether or not the borrower has any personal liability on the loan. If the borrower does not, the lender cannot take efforts to collect that debt.

There are a variety of considerations that need to be evaluated by a real estate attorney to determine whether or not that 2nd mortgage debt debt is still collectable after a foreclosure. Whether or not it is collectable depends upon many factors, such as the nature/character of the loan at the time when it was made, when the last payment was made by the borrower, and the final due date of the loan under the terms of the loan, to name a few.

Historically, during recessionary times, many lenders have attempted to collect sold-out junior loans which are legally uncollectable debts. If you are a borrower in this situation, you should not assume that you owe this debt. Likewise if you are a private lender, you should also not assume that you can collect the debt.

The borrower or private lender should first consult with an attorney and have an attorney evaluate whether the debt is collectable. If you are a lender and you collect on an uncollectable debt, you may become liable for collection of an uncollectable debt.

I represent clients, both borrowers and lenders, regarding sold out junior loans, throughout the Bay Area, and in the East Bay, California, in Oakland, California, and in Walnut Creek, California. If you have questions, or need representation by a California real estate attorney involving a sold out junior lien, please feel free to contact me to discuss your case or to arrange for a consultation. I can be reached at (510) 465-0025 or (925) 708-3306.

PARTITION ACTIONS AND RIGHT TO ACCOUNTING

Real Estate Law

As I have discussed in prior articles, a partition action is a lawsuit to force a co-owner of real property to sell the property. The primary issue in a partition action, however, is often not whether or not one party has the right to force another party to sell the property.

Rather, it is what to do with the proceeds of the sale when one or more of the parties contends that they are owed monies as a result of inequities in the amounts received and paid by the owners of the property.

In California, in addition to deciding whether or not the property should be ordered sold, the Court also is charged with determining any accounting or contribution issues raised by any of the parties.

What this means is first, if there have been any rents or profits collected by one of the owners of the property, but not by the other owner(s), should the other owner(s) be reimbursed for their share of the rents or profits collected by the other co-owner.

Additionally, if one of the parties paid more towards the purchase or maintenance of the property, the court will decide whether or not that owner has a right to contribution, which is the right to be reimbursed by the other co-owner’s of the property for their shares of those costs.

These types of issues are referred to as accounting issues. In dealing with accounting issues, the Court applies principles of equity, where the court decides what would be fair under the circumstances.

It is often in the parties’ best interests, to attempt to resolve the accounting issues without the necessity of having to fully litigate the accounting issues, as those issues can be very costly to litigate. In addition to being document intensive, accountings will often require the use of one or more costly expert.

I regularly represent clients in partition actions throughout the Bay Area, and in the East Bay, California, in Oakland, California, and in Walnut Creek, California.

If you have questions, or need representation by a California real estate attorney involving a partition action, please feel free to contact me to discuss your case or to arrange for a consultation. I can be reached at (510) 465-0025 or (925) 708-3306.

PARTIES’ DUTIES OF DISCLOSURE IN A REAL ESTATE SALES TRANSACTION

Real Estate Law

In California, sellers of real property have a very strong duty to disclose all material facts to the buyer that materially affect value or the desirability of the property; but only those material facts that are known or accessible only to the seller, and only if the seller knows that such facts are not known to the buyer and cannot be discovered after reasonable diligence by the buyer.

Implicit in the seller’s duty of disclosure, is the buyer’s duty to conduct their own investigation regarding the property. Since the seller is only responsible for those material facts that cannot be discovered by the buyer after reasonable diligence, the buyer cannot fail to conduct inspections of the property, and then hold the seller legally responsible for defects to the property that the seller did not disclose but would have been discovered by the buyer had they completed the inspections prior to the sale.

In addition to the seller and buyer having duties regarding investigations and inspections, the real estate brokers and agents also have duties. The real estate brokers and agents representing the seller and buyer have a duty to inspect the property, and to disclose to the buyer any defects they discover that materially affect the marketability and desirability of the property.

Cases involving failure to disclose defects in a real estate sales transaction are very common. In California, because there are so many moving parts, these cases can be complicated. An analysis should be completed to determine, among other things, whether or not the defect is a material defect, whether or not it is a defect that the seller had a duty to disclose and failed to disclose, whether or not the defect would have been discovered after a reasonable inspection of the property by the buyer, or whether the defects were discoverable by the real estate brokers.

If you have purchased a property and have discovered defects that you believe may be the result of a violation of one of the other parties’ duty to disclose; or if you are a seller where such a claim has been asserted against you; or if you are a real estate broker or agent where such claims have been asserted against you, you should consult with an attorney right away. Because there are statutes of limitations and legal deadlines that need to be met, promptly dealing with the issue can be critical.

I regularly represent clients in the East Bay, California, in Oakland, California, and in Walnut Creek, California, in failure to disclose or non-disclosure cases. If you have questions, or need representation by a California real estate attorney involving a non-disclose case, please feel free to contact me to discuss your case or to arrange for a consultation. I can be reached at (510) 465-0025 or (925) 708-3306.