Interested in learning more about Arizona’s Anti-Deficiency Statutes? Watch our video presentation. The video covers basic terminology, concepts and the application of Arizona’s Anti-Deficiency Statutes to trustee’s sales (non-judicial foreclosures) and judicial foreclosures.
During Arizona’s 2010 legislative sessions, there have been numerous proposed statutes dealing with foreclosures:
H2511 – Would prohibit cities from levying a tax on the transfer of a property to a lender in foreclosure.
H2739 – Would require mediation (settlement discussions) before a residential foreclosure. Foreclosure would be stopped during mediation.
H2740 – Would allow homeowners to elect to rent the home after foreclosure, as long as they use it as their primary residence.
H2766 – Would require a landlord of a home in foreclosure to notify the tenant at least 60 days before the foreclosure.
H2270 – Would require mortgage brokers to investigate the borrower’s ability to repay the loan before making the loan.
H2626 – Would require lenders to try to contact borrowers to discuss options to foreclosure, including loan modifications, at least 30 days before a foreclosure notice.
H2309 – Would regulate foreclosure consultants in order to combat a growing number of foreclosure scams.
Visit the Arizona State Legislature for more information
In the face of the poor real estate market, scammers are pursuing new ways of taking advantage of consumers. Most recently, there have been numerous reports of scams involving loan modifications and short sales. While there are legitimate companies, others demand relatively huge up front fees and guarantee results that are impossible to guarantee. Beware, these companies may not be legitimate and may just be taking your money. Consult an attorney or visit the Arizona Attorney General’s Foreclosure Resource Center for more information.
In this case, Berk & Moskowitz, P.C. represented a group of owners of residential units in Northern Arizona. They regularly rented their units to short-term vacationers. Another owner later claimed that short-term vacation rentals violated the Covenants, Conditions and Restrictions for the development. The Navajo County Superior Court disagreed and found in favor of the firm’s clients. The other owners then appealed. The Court of Appeals affirmed that part of the trial court’s decision in favor of the firm’s clients.
Read the Court of Appeals decision.
In the first reported decision by the Arizona Court of Appeals ever adverse to an appraiser, the Court ruled that an appraiser hired by the lender does owe a duty to the buyer/borrower. In this case, Berk & Moskowitz, P.C. represented the buyer/borrower in a claim against the appraiser. The firm’s client believed that the appraiser had overvalued the home that she purchased. The Maricopa County, Arizona Superior Court found that the appraiser did not owe any duty to the buyer/borrower and, thus, she had no right to sue the appraiser.
The Arizona Court of Appeals reversed the trial court and found that the appraiser owed a duty to the buyer/borrower in a purchase money loan transaction, even though the appraiser was hired by the lender. This is the first decision in Arizona recognizing that someone who did not hire the appraiser has the right to sue the appraiser. Visit our AppraiserNegligence website for more information on claims against appraisers.
Read the Court of Appeals opinion.
In this case, Berk & Moskowitz, P.C. represented the seller of a home under an option to purchase given to the tenant/buyer. The trial court found in favor of the seller and the buyer appealed. The Arizona Court of Appeals affirmed the trial court’s decision in favor of Berk & Moskowitz’ client. Both the trial court and the Court of Appeals found that the buyer had not timely exercised the option, and confirmed Arizona law that option contracts are strictly construed. Read the entire court of appeals decision.
In this case, Berk & Moskowitz, P.C. represented the sellers of three “four-plex” apartment buildings. The buyers, a married couple from California, signed three separate contracts to buy the properties. When the buyers could not close escrow by the initial close of escrow deadline, the parties agreed to extend the deadline and the buyers agreed to deposit additional earnest money to be paid to the sellers as liquidated damages if the buyers did not close escrow by the new deadline. The buyers deposited the additional earnest money on only one of the three properties, and did not pay the balance of the purchase price to close escrow by the new deadline on any of the three properties. As a result, the sellers cancelled all three contracts and demanded that the buyers pay the full amount of the agreed-upon earnest money as liquidated damages.
The trial court awarded the full earnest money as liquidated damages on only the one contract that the buyers made the deposit, but refused to award the full amount on the other two contracts. The Arizona Court of Appeals reversed and found that the sellers were entitled to the full agreed upon earnest money as liquidated damages on all three contracts.
Read the entire Court of Appeals decision.
In this case, Berk & Moskowitz, P.C. began representing the tenant in a lease dispute case after the trial court ruled against the tenant and found that the tenant did not have the right to cancel an office lease. The firm filed an appeal on behalf of the tenant. The Arizona Court of Appeals reversed the Maricopa County, Arizona Superior Court and found that, given the clear language of the lease, that the tenant did have the right to terminate the lease. Berk & Moskowitz, P.C. recovered the tenant’s security deposit, costs, attorneys’ fees and interest.
Read the Court of Appeals decision.
Berk & Moskowitz, P.C. filed a lawsuit for its clients against the sellers and their real estate agent for failing to disclose that the property was used to breed and kennel large numbers of dogs. The problem was discovered when the buyer’s daughter and grandson suffered severe allergic reactions to the home.
The Court found for the firm’s clients, and concluded that the real estate agent was 95% at fault and the seller was 5% at fault, and awarded the buyer the payment of $60,000, representing the difference between the purchase price and the value of the property at the time of close of escrow, plus attorneys’ fees. Read the Superior Court Judge’s entire deicision.
Maricopa County, Arizona Superior Court Judge Kenneth Mangum found in favor of the firm’s clients on their real estate fraud and misrepresentation claims.
Berk & Moskowitz, P.C. filed suit against the seller/developer because, among other things, its agents falsely represented to the firm’s clients that a nearby dairy was being closed. The Court found the seller liable for misrepresentation and consumer fraud, ordered full rescission (cancellation of the sale and a full refund of all amounts paid by the buyers), $15,000 for emotional distress damages and attorneys’ fees. Read the decision.