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Poniatowski Leding Parikh Helps Local Horse Ranch Operation Obtain Conditional Use Permit
We recently helped a horse boarding and stables operation in the San Francisco Bay Area to successfully obtain a conditional use permit from Alameda County to continue in business at their long-time existing location. Prior to our involvement, the process had been hung up for over two years without resolution. Continue reading
Resolving Tenant-Owner Commercial Property Claims
Commercial vs Residential Use, Property Damage Liability and Lawful Detainers
We defended the owner of a commercial property (a lender that had foreclosed and credit bid at the foreclosure sale) in a civil action by the former tenant of the property that had been evicted in an unlawful detainer action we prosecuted for the owner/lender. Continue reading
Navigating Pre-Judgment Remedies and California Anti-Deficiency Rules
Taking our client through a complex legal environment successfully
PLP recently represented a large financial institution in a commercial collections matter in Alameda County. We successfully obtained expedited orders for Writs of Attachment on the debtor’s commercial and residential properties, and immediately recovered substantial Continue reading
Commercial Lease Extension
Signed With National Franchisor As Tenant
We recently completed the successful negotiation and drafting of a commercial lease extension on behalf of our client, the Landlord and owner of commercial property in Hayward, California (East Bay). The Tenant is a large, national automotive repair franchisor.
Hayward Landlord Tenant
The Tenant had allowed its option to renew to expire, allowing us to negotiate and draft lease modification language to provide for an increase in rents to market with annual CPI increases and 3% minimum annual increases. Market conditions also allowed us to eliminate a right of first refusal that the Tenant previous enjoyed, thereby increasing the marketability of the property for a potential sale by the Landlord.
Commercial Lease Contracts
We are seeing a significant increase in activity in the commercial real estate leasing market while representing landlords, tenants, brokers and property managers. Our clients are advising us the rents are increasing and inventory is low, making it a landlord’s market as the San Francisco Bay Area economy continues to improve.
More about commercial lease contracts or tenant representation
Forbearance Agreements Do Not Violate California Usury Laws
If your judgment debtor is offering to pay you a fee to forbear collection of your judgment, rest assured the forbearance agreement is not usurious.
In the recently-decided case, Bisno v. Kahn, 14 C.D.O.S. 4439 (April 25, 2014), the Court made clear that a forbearance agreement is a separate contract, wholly separate from a judgment and the sums owed under a judgment.
In Bisno, a judgment debtor offered to pay to the judgment creditors a fee in exchange for the judgment creditors’ agreement to forbear from enforcing the judgment while the judgment debtor closed an unrelated real estate transaction. After the judgment was fully satisfied, that same judgment creditor sought to recover the forbearance fees he paid to the judgment creditors, claiming the payment of the forbearance fees was a violation of California’s usury laws.
Following a thorough summary of the legislative history of California’s usury laws and the intent behind those laws, the Court held that the usury laws do not prohibit a judgment creditor from receiving forbearance fees in addition to statutory post-judgment interest. The Court further held that while a forbearance fee does not constitute a recoverable cost under the Enforcement Of Judgments Law (see Code of Civil Procedure section 685.040, which allows a judgment creditor to recover “the reasonable and necessary costs of enforcing a judgment”), there is no provision in the Enforcement Of Judgments Law that prohibits parties from entering into private agreements to forbear collection of a judgment.
Note: “Forebearance” is defined in legal terms as “the action of refraining from exercising a legal right, especially enforcing the payment of a debt.”
Payment of Judgment Cuts Off Creditor’s Recovery of Fees
DEBTORS’ PAYMENT OF JUDGMENT IN FULL BY CASHIER’S CHECK CUTS OFF CREDITOR’S RECOVERY OF POST-JUDGMENT ATTORNEY’S FEES
This case highlights the necessity of creditors to act diligently post-judgment to file their motions for accrued fees as soon as possible in order to avoid cutting off their claims upon the debtor’s payment of the judgment in full. Accepting but not cashing a check that fulfills the judgment will not keep their claim open.
In Gray1CPB, LLC v. SCC Acquisitions, Inc. (2014) 225 Cal.App.4th 410, the Court considered whether the debtors’ payment of a judgment in full by cashier’s check cuts off the creditor’s right to move for attorney’s fees previously incurred in collection efforts.
In August, 2010, Gray1 obtained a judgment against the debtors in excess of $9.1 million plus interest as a result of the debtors’ failure to make good on their guaranties of a loan made to a limited liability company. The written guaranties provided for an award of attorney’s fees.
In June, 2012, the debtors delivered a cashier’s check to Gray1 in the amount of $12.9 million which covered the amount of the judgment plus accumulated interest. Gray1 did not immediately cash the check. Rather, twelve days after receiving the cashier’s check, Gray1 filed a motion for post-judgment costs, including attorneys’ fees in attempting to enforce the judgment, and thereafter cashed the check. Continue reading
Only a Judge Can Extend Bankruptcy Deadlines – Even if Counsels Agree
A Stipulation to Extend the Deadline to File an Adversary Proceeding in a Chapter 7 Case Needs a Court Order to be Enforceable.
Creditors should be wary of relying on an agreement of Debtor’s counsel to extend the deadline to file a complaint objecting to discharge under Bankruptcy Code Section 727. In In Re Alazzeh, 14 C.D.O.S. 5157, May 9, 2014, the Ninth Circuit Bankruptcy Appellate Panel held that notwithstanding a stipulation between counsel to extend the deadline documented and confirmed by email, the 60-day deadline in Bankruptcy Rule 4004 (a) was not extended because the parties did not obtain a Court Order approving the extension. The Bankruptcy Court cited Bankruptcy Rule 9006(b), which governs requests for extensions of time, stating that the parties had not complied with the requirements of filing a motion prior to the expiration of the deadline. Additionally, the Bankruptcy Court made a point of stating that the extension is not automatically granted just because a motion has been filed, and that the Court has the discretion to determine if cause exists. As a result of this ruling, creditors and debtors must jump through an additional hoop when trying to work out a potential objection to discharge and may not rely on informal extension agreements, even if confirmed in writing. In this case, the debtor obtained summary judgment while the creditor probably felt like she was sand-bagged.
Note: Sandbagging has a special meaning in legal contexts. Black’s Law Dictionary defines it as a “trial lawyer’s remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem. This tactic does not usually preserve the issue for appeal because objections must be promptly made to alert the trial judge of the possible error.”
Chavez v. Indymac Mortgage Services
Mortgage Lenders Estopped From Relying On Own Failure To Sign Modification Agreement As Basis For Invalidating Agreement
In the case of Chavez v. Indymac Mortgage Services (C.A. 4th; September 19, 2013; D061997), the Fourth Appellate District held that lenders who failed to execute and return a loan modification agreement to a borrower were equitably estopped from relying on the borrower’s inability to produce an executed loan modification agreement as grounds for the lenders’ demurrer. Continue reading
Equitable Subrogation
Equitable Subrogation: Examining The Intended Lien Priorities Of The Parties
In California, lien priority on real property is governed by the “first in time, first in right” rule set forth in California Civil Code § 2897. Simply put, liens that are recorded first have priority over liens that are subsequently recorded. There exists, however, a long-established doctrine in California known as equitable subrogation that carves out an exception to California’s regular rule of “first in time, first in right” in situations where equity requires a different result. Continue reading