Senate Bill 15-091 Passes Out of the Senate State, Veterans & Military Affairs Committee
March 19, 2015 —
David M. McClain – Colorado Construction LitigationAs previously reported, Senator Scott's SB 91, as originally introduced, would have reduced Colorado's statute of repose for construction defect actions from eight years to four years. Yesterday, the Senate State, Veterans & Military Affairs Committee heard Senate Bill 91 and, before passing the bill on a party line vote sending it back to the full Senate for consideration, made two substantive amendments. By one amendment, the Committee excluded any multi-family developments. The second amendment was to reduce the statute of repose from six years, currently on the books, to five years plus one more if the defect becomes manifest in the fifth year.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
The “Right to Repair” Construction Defects in the Rocky Mountain and Plains Region
October 16, 2018 —
Jean Meyer & Sheri Roswell - Colorado Construction Litigation BlogIn excess of 30 states have enacted tort reform legislation requiring property owners to notify construction professionals of the presence of alleged construction defects prior to the commencement of a lawsuit. These statutes also often permit construction professionals to make an offer of repair within a statutorily defined period of time after receipt of a notice of claim letter. Undoubtedly, the notice-of-claim process has played a meaningful part in bringing construction professionals and claimants to timely resolutions of construction defect concerns in isolated instances.
However, while these statutes are commonly referred to as “right of repair” legislation, their practical effect is often reduced to little more than procedural empty gestures serving as a prelude to litigation. This article will briefly survey the “right to repair” statutes in Colorado, Montana, North Dakota and South Dakota. In Nebraska, New Mexico, Utah and Wyoming there is no right to repair or notice-of claim statue.
Reprinted courtesy of
Jean Meyer, Higgins, Hopkins, McLain & Roswell LLC and
Sheri Roswell, Higgins, Hopkins, McLain & Roswell LLC
Mr. Bracken, may be contacted at meyer@hhmrlaw.com
Ms. Russo may be contacted at roswell@hhmrlaw.com
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New York Court Temporarily Enjoins UCC Foreclosure Sale
September 21, 2020 —
Steven E. Ostrow, Timothy E. Davis, Steven E. Coury & Kristen E. Andreoli - White and WilliamsNew York courts have become a battleground for challenges to foreclosure sales under the Uniform Commercial Code (UCC) amidst the COVID-19 pandemic. Another trial court of the New York State Supreme Court (New York County) issued a preliminary injunction in Shelbourne BRF LLC v. SR 677 Bway LLC, halting a mezzanine lender’s August 19, 2020 UCC foreclosure sale. The decision confirms that the impact of the pandemic on the value of commercial real estate, and upon traditional steps taken to conduct a foreclosure auction, are both key factors that courts will continue to consider in determining whether a UCC foreclosure sale scheduled during the pandemic can be conducted in a commercially reasonable manner as required by the UCC.
THE CASE
In Shelbourne, the mezzanine borrowers owned the membership or equity interests in the companies (collectively, the “Property Owner”) that held title to a 12-story office building in Albany, New York. As security for the $3.35 million mezzanine loan, the mezzanine borrowers pledged their equity interests to the mezzanine lender. In May 2020, the mezzanine lender declared a default under the mezzanine loan as a result of the Property Owner’s default under the $28.5 million senior loan secured by a mortgage against the office building. The mezzanine lender then scheduled a public UCC foreclosure sale of the equity interests in the Property Owner for August 19, 2020. If the sale had been held, the equity interests in the Property Owner (and right to control the Property Owner and office building) would have been transferred to the successful bidder, either the mezzanine lender or a third party purchaser.
Reprinted courtesy of White and Williams attorneys
Steven E. Ostrow,
Timothy E. Davis,
Steven E. Coury and
Kristen E. Andreoli
Mr. Ostrow may be contacted at ostrows@whiteandwilliams.com
Mr. Davis may be contacted at davist@whiteandwilliams.com
Mr. Coury may be contacted at courys@whiteandwilliams.com
Ms. Andreoli may be contacted at andreolik@whiteandwilliams.com
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Condominium Association Responsibility to Resolve Construction Defect Claims
July 23, 2014 —
Nicholas D. Cowie – Maryland Condo Construction Defect Law BlogThe Maryland Court of Special Appeals recently issued an opinion in Greenstein v. Council of Unit Owners of Avalon Court Six Condominium Inc. finding that an association can be sued by its unit owner members if it fails to take timely legal action against a developer. In that case, the association was aware of construction defects, but failed to take action to preserve its claim and then filed a lawsuit against the developer too late, after the statute of limitations expired. As a result, the suit against the developer was dismissed and the association was forced to assess its unit owner members for the $1 million in repair costs. Some of the unit owners then sued their association, seeking to recover the cost of their assessments on the ground that the association was negligent in failing to pursue a timely legal action against the developer.
On appeal, the court was asked to decide whether state law permits owners to sue their condominium association for negligently failing to sue a developer for common element construction defects. The court, in an unpublished opinion, found that an association could be held liable to its members. The court said: “The duty to maintain, repair and replace the common elements together with the exclusive right to initiate litigation regarding the common elements [which was stated in a provision of the association’s bylaws] creates a concomitant obligation on the part of the [association] to pursue recovery from [the developer] on behalf of [the unit owners] for damage to the common elements caused by [the developer’s] negligence, breach of contract or violation of any applicable law.”
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Nicholas D. Cowie, Maryland Condo Construction Defect Law BlogMr. Cowie may be contacted at
ndc@cowiemott.com
Jason Poore Receives 2018 Joseph H. Foster Young Lawyer Award
July 21, 2018 —
Jason Poore - White and Williams LLPJason Poore, an associate in the General Litigation Group, recently received the 2018 Joseph H. Foster Young Lawyer Award during the Philadelphia Association of Defense Counsel’s annual meeting. The Joseph H. Foster Young Lawyer Award honors “a young lawyer who best exemplifies the qualities of professionalism and dedication as defense counsel in the practice of law and in the promotion of the highest ideals of justice in the community."
Jason continues to make significant contributions to the local bar and community. In addition to serving on the Executive Committee of the Philadelphia Bar Association Young Lawyers Division, he is the creator and Chair of the PBA's Youth Courts Committee.
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Jason Poore, White and Williams LLPMr. Poore may be contacted at
poorej@whiteandwilliams.com
Real Property Alert: Recording Notice of Default as Trustee Before Being Formally Made the Trustee Does Not Make Foreclosure Sale Void
February 18, 2015 —
Krsto Mijanovic and Annette F. Mijanovic – Haight Brown & Bonesteel LLPIn Ram, et al. v. OneWest Bank, FSB, et al. (filed 2/6/15, No. A139055), the California Court of Appeal held that a nonjudicial foreclosure sale is not void merely because the notice of default was recorded by an entity who had not yet been substituted as trustee. The court also held that because the sale was voidable, rather than void, the plaintiffs were required to allege an ability and willingness to tender their debt in addition to alleging that they were prejudiced by the irregularity in the foreclosure process.
Plaintiffs were borrowers who purchased a home subject to a deed of trust. After they defaulted on their loan, nonjudicial foreclosure proceedings were initiated, and the beneficiary of the deed of trust, OneWest Bank, FSB ("OneWest"), purchased the property at the foreclosure sale. Plaintiffs sued OneWest and other entities for wrongful foreclosure, alleging that the sale was void because the entity identified as the trustee on the notice of default, Aztec Foreclosure Corporation ("Aztec"), had not been formally substituted as trustee until after the notice of default was recorded. The trial court sustained OneWest's demurrer and plaintiff appealed.
Reprinted courtesy of
Krsto Mijanovic, Haight Brown & Bonesteel LLP and
Annette F. Mijanovic, Haight Brown & Bonesteel LLP
Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com
Ms. Mijanovic may be contacted at amijanovic@hbblaw.com
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United States Supreme Court Limits Class Arbitration
May 13, 2019 —
Jeffrey K. Brown & Raymond J. Nhan - Payne & FearsOn April 24, 2019, the United States Supreme Court held that the Federal Arbitration Act ("FAA") bars orders requiring class arbitration when an agreement is ambiguous about the availability of such a procedure. Lamps Plus v. Varela, 587 U.S. __ , 2019 WL 1780275, (2019). In Lamps Plus, the Court clarified a 2010 case in which it held that a court may not compel arbitration on a class-wide basis when an agreement is silent on the availability of class arbitration. Stolt-Nielsen S.A. v. Animal Feeds Int'l Corp., 559 U.S. 662, 687 (2012).
In Lamps Plus, a 5-4 decision authored by Chief Justice Roberts, the Court explained that because the FAA envisions the use of traditional individualized arbitration, a party cannot be forced under the FAA to submit to class arbitration unless the parties explicitly agreed to do so. Because class arbitration does not share the benefits of traditional arbitration -- lower costs, greater efficiency and speed, and the parties' choice of a neutral -- the FAA requires more than an "ambiguous" agreement to show that the parties bound themselves to arbitrate on a class-wide basis. Unlike individualized arbitration, or even traditional class actions, class arbitration raises serious due process concerns because absent class members will have limited judicial review. Based on these critical differences between individual and class arbitration, the Court reiterated in Lamps Plus that "courts may not infer consent to participate in class arbitration absent an affirmative contractual basis for concluding that the party agreed to do so."
Reprinted courtesy of
Jeffrey K. Brown, Payne & Fears and
Raymond J. Nhan, Payne & Fears
Mr. Brown may be contacted at jkb@paynefears.com
Mr. Nhan may be contacted at rjn@paynefears.com
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Toll Brothers Honored at the Shore Builders Association of Central New Jersey Awards
May 13, 2024 —
Toll BrothersFREEHOLD, N.J., May 07, 2024 (GLOBE NEWSWIRE) --
Toll Brothers, Inc. (NYSE:TOL), the nation's leading builder of luxury homes, today announced that the Company's New Jersey Division was honored with six awards at the 2024 Fabulous Achievements in Marketing Excellence (FAME) Awards held at South Gate Manor in Freehold, New Jersey.
Presented by the Shore Builders Association of Central New Jersey, the FAME Awards honor home builders of the New Jersey Builders Associations who have made major contributions to the home building industry. The awards span categories from product and design to advertising, marketing, and professional achievements. Toll Brothers was selected as the winner in the following categories:
For more information on Toll Brothers communities in New Jersey, visit
TollBrothers.com/NewJersey.
About Toll Brothers
Toll Brothers, Inc., a Fortune 500 Company, is¬ the nation's leading builder of luxury homes. The Company was founded 57 years ago in 1967 and became a public company in 1986. Its common stock is listed on the New York Stock Exchange under the symbol "TOL." The Company serves first-time, move-up, empty-nester, active-adult, and second-home buyers, as well as urban and suburban renters. Toll Brothers builds in over 60 markets in 24 states: Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, and Washington, as well as in the District of Columbia. The Company operates its own architectural, engineering, mortgage, title, land development, smart home technology, and landscape subsidiaries. The Company also develops master-planned and golf course communities as well as operates its own lumber distribution, house component assembly, and manufacturing operations.
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