Gray Matters Summer 2012

August 2012

A Business & Litigation Firm August 2012
New Developments in the Foreclosure Crisis
Published: National Mortgage Professional

Pat RobertsThe real estate market’s foreclosure crisis continues to evolve and, as it does, so does the law governing wrongful foreclosure and related lender defenses.

One theory that homeowners have used to set aside foreclosures in the past, was that an improper assignment or transfer of the mortgage or Deed of Trust by the lenders rendered it invalid. Historically, whenever a mortgage or Deed of Trust was transferred or assigned, the transaction was recorded in the real property records. However, in recent years, lenders have transferred Deeds of Trust or mortgages (or certain fractional shares of the same) so frequently that lenders no longer record each particular assignment. To assist with the epidemic of mortgage recordation, lenders began utilizing the Mortgage Electronic Registration Systems (“MERS”) – a nationwide registry system which held various Deeds of Trust in its name. When an interest was transferred, the Deed of Trust stayed in the name of MERS, and a transfer was simply made in the internal records.

An argument raised by homeowners in foreclosure litigation following the adoption of MERS was that MERS itself was illegal, and foreclosures under Deeds of Trust held by MERS were improper and could be set aside. Specifically, borrowers would allege that MERS was not the “true” beneficiary under the Deed of Trust, never had ownership of the promissory note, nor held an assignable interest in the note or Deed of Trust. As such, any assignment of the note by MERS to any other institution was invalid.

Rick Williams Presents “Special Employment: Subrogation and Other Issues”

Richard WilliamsGray·Duffy, LLP partner Richard Williams recently presented, “Special Employment: Subrogation and Other Issues,” to a group of claims and risk management professionals from Volt Information Services, Inc. and Gallagher Bassett in Las Vegas. Mr. Williams provided an overview of the Special Employer Doctrine, including how to test for special employment; the difference between a general employer and a special employer; how workers’ compensation coverage applies in a dual employment situation; and why the special employer carries exclusive liability. For more information on this presentation, please contact Rick Williams at [email protected] or (650) 365-7343.

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Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

So You Think You Know The Law…

__________

1. In California, a homeowner with a front yard that abuts a public sidewalk has a duty to maintain the sidewalk.
True or False
2. A homeowner’s statutory duty to maintain the sidewalk in front of his house means that he is liable for injuries to pedestrians caused by a dangerous condition in the sidewalk, even if he did not create the dangerous condition.
3. Despite state law, a city can pass an ordinance making a homeowner liable for injured pedestrians due to sidewalk defects, regardless of whether the homeowner created the dangerous condition.
For any questions you may have regarding premises liability please contact Kevin M. Cruz in our Encino office.
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702 Marshall St.
Suite 600
Redwood City, CA 94063
(650) 365-7343

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.