CASE LAW Subject Date Court Case Name / Cite Contractual forum selection clause does not govern CA Comm. C. 5109(b) preliminary injuction action. 02/25/05 US Crt of App (9th Cir.) Hendricks v. Bank of America Litigation Privilege not applicable to particular type of breach of contract action. 02/23/05 CA Ct of App (3rd Dist.) Wentland v. Wass City anti-preditory lending ordinance preempted by state law 01/31/05 CA Sup. Ct. American Financial Services Assoc. v. City of Oakland TILA statutory damages clarified for closed-end loans secured by personal property 11/30/04 US Sup. Ct. Koons Buick Pontiac GMC, Inc. v. Nigh, --- S.Ct. ----, 2004 WL 2707418, U.S. An insurer may recover it's defense, investigative and other losses from an insured’s insurance broker who intentionally or negligently provides material misinformation in an insurance application. 11/17/04 CA App. Ct. (4th Dist.) Century Surety Co. v. Crosby Insurance Inc., --- Cal.Rptr.3d ----, 2004 WL 2601322, 2004 DJDAR 13917 Slight procedural irregularity with non-judicial foreclosure rules, with no prejudice to borrower, does not render foreclosure sale invalid (filed 9/19/04; order published 10/20/04) 10/20/04 CA App. Ct. (6th Dist.) Knapp v. Doherty, --- Cal.Rptr.3d ----, 2004 WL 2092002, 2004 DJDAR 12769 Borrowers’ ratification of fraudulent and/or forged loan based on knowledge & delayed attempt to set aside to protect son; Lender’s ability to obtain post-foreclosure deficiency judgment against negligent escrow & surety; Escrow & surety’s standing to challenge sufficiency of foreclosure proceedings; Lender’s duty to escrow & surety to mitigate damages by conducting reasonable foreclosure sale; Foreclosure postponements’ qualification as an “operation of law” exemption to three postponements cap based on appellate “automatic stay” rule; Obligation of lender to post appeal bond in order to trigger appellate “automatic stay” rule / “operation of law” exemption to foreclosure postponement cap; “Delayed discovery rule” applicability to action against escrow and escrow bond surety; Lender’s ability to recover attorney’s fees & costs associated with defense of meritless borrower action from escrow agent based on “tort of another” theory [last item not published] 10/15/04 CA App Ct (2nd Dist., Div. 4) Royal Thrift & Loan Co. v. County Escrow, 2004 DJDAR 12668, --- Cal.Rptr.3d ----, 2004 WL 2326366 Fraudulent conveyance grantee of real property lacks standing to contest government’s civil forfeiture action [CA Uniform Fraudulent Transfer Act, Cal. Civ. Proc. Code 3439, et seq.] 10/01/04 US Ct. of App. (9th Cir., Cal.) U.S. v. Real Property Located at 5208 Los Franciscos Way, 2004 DJDAR 12264; --- F.3d ---- Successful UCL (B&P 17200) litigant not entitled to atty fees under “significant public benefit doctrine“ (CCP 1021.5) where challenged consumer contracts technically in violation of law, but no evidence of harm to any person, corrective relief is “scant,“ and defendant corrected technical errors shortly after action filed 09/29/04 CA Ct of App. (1st Dist.) Baxter v. Salutary Sportsclubs Inc., --- Cal.Rptr.3d ----, 2004 WL 2165387, Cal.App. 1 Dist., Sep 28, 2004, 2004 DJDAR 12115 2nd Cir. Holds RESPA Sec. 8(b) Prohibits Third Party Overcharges 09/10/04 US Ct. of Appeals (2nd Cir.) Kruse v. Wells Fargo Home Mortgage, 2004 WL 2008943 (2nd Cir.(N.Y.)); -- F3d -- Non-judicial foreclosure of personal property does not offend the “one-action“ or “security first“ rules vis a vis a remaining real property lien on same obligation 09/02/04 US BK App Panel (9th Cir.) Kearns v. Transamerical Home Loan (In re Kearns), 2004 WL 2091219, 2004 DJDAR 11923, -- B.R. -- Claimed misuse of loan proceeds coupled with causes of action for fraudulent conveyance / avoidance of transfer under Civ. C. 3439.07(a)(1) supports lis pendens 07/22/04 CA Sup. Ct. Kirkeby v. Sup. Ct., 33 Cal.4th 642 Quiet Title default judgment based on declarations without live testimoney voidable, not void 06/16/04 CA Ct of App. (2nd Dist.) Yeung v. Emery Soos, 119 Cal.App.4th 576