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Lender Law

Posted on October 12, 2017 in Arizona Law Regarding Business and Real Estate

Late this summer, the Arizona Court of Appeals in Bank of America, N.A. v. Felco Business Services, Inc. ruled that a claim of senior priority under the doctrine of equitable subrogation is not waived for failure to object to a trustee’s sale.

Two owners took out a loan and deed of trust from Countrywide. Months later, they took out another loan and deed of trust from a different lender. Then they refinanced the first loan and deed of trust with a new bank. The owners used the refinanced loan (secured with a third deed of trust) to pay off and release the original loan from Countrywide.

Then they defaulted on their loan to the second lender. The second lender noticed a trustee’s sale and notified Countrywide. Countrywide, a poster child for fraud and incompetence, did nothing. After the sale, Bank of America acquired all Countrywide assets in a bailout. Bank of America sued saying the third deed of trust for the refinanced loan had priority over the second lender’s deed of trust under the doctrine of equitable subrogation, which allows a deed of trust to assume the priority position of an earlier deed. The trial court held that A.R.S. § 33-811(C) required that a senior lien be asserted as a defense or objection to the trustee’s sale, such that the failure to object to the sale waived Plaintiffs’ claim of senior priority under the doctrine of equitable subrogation.

The Arizona Court of Appeals ruled that equitable subrogation is not a defense to a trustee’s sale and does not constitute a waiver under A.R.S. § 33-811(C) because lien priority is a separate matter from the validity of a trustee’s sale. Defendants could have conducted the sale even if Plaintiffs had asserted that it had a senior lien before the sale. A.R.S. § 33-811(C)’s express language does not preclude assertions of equitable subrogation. This law remained available to Bank of America after the trustee’s sale. Because equitable subrogation is an equitable remedy and its application depends on the particular facts of each case, the Arizona Court of Appeals remanded the matter back to determine whether applying the doctrine is applicable.

The card deck is very stacked in Arizona for the lender/bank/note holder. You must be very careful when borrowing and twice as careful when a default occurs under a loan. Feel free to give Arizona attorney Bill Miller a call (602-319-6899) if you are in a situation with a bank or lender that requires a second set of eyes.

Arizona Construction Law and Attorney Fees

Posted on October 11, 2017 in Arizona Law Regarding Business and Real Estate

Not every lawsuit gives rise to attorney fees if you win. Yet, the Arizona Supreme Court just ruled that the successful party on a claim for breach of the implied warranty of workmanship and habitability qualifies for an attorney-fee award under either a contractual fee provision or A.R.S. § 12-341.01. see Sirrah Enterprises v. Wunderlich

Plaintiff/homeowner hired a general contractor to build and finish a basement. Plaintiff sued for breach of the implied warranty of workmanship and habitability, and the jury ruled for the Plaintiff. The trial Judge then awarded the attorneys’ fees pursuant to both a contractual fee provision in the General Contractors Construction Agreement and A.R.S. § 12-341.01. The court of appeals affirmed based only on the contractual fee provision.

The Arizona Supreme Court stated that the law imputes the implied warranty of workmanship and habitability into every construction contract, rendering the implied warranty a term of the existing express contract. In short, you may have rights that are not spelled out in your construction contract. The Arizona Supreme Court therefore concluded that a successful party on a claim for breach of the implied warranty of workmanship and habitability is eligible for an award of attorneys’ fees under A.R.S. § 12-341.01. It makes sense, because everyone knows that you build a house to live in it, thus it is “implied” that the various rooms should be habitable.

Construction law cases are very fact intensive. At the law firm of William A. Miller we have handled scores of these on both the builder and homeowners behalf. Give us a call at 602-319-6899 if you would like to discuss your case.

Kickbacks- Fraud Always Wrong

Posted on March 1, 2017 in Uncategorized

An Arizona doctor, Walter Simmons is among 12 doctors, pharmacy owners and marketing pros accused of a fraud and kickback scheme that prosecutors allege involved a sham medical study used to bilk up to $102 million from the publicly-funded federal health program for military family members. This is sickening to those doctors who play by the rules.
Simmons worked at two Phoenix hospital chains and he was indicted in October in U.S. District Court in Dallas on one count of conspiracy to commit health-care fraud. The federal charge carries a maximum sentence of 10 years in federal prison and a $250,000 fine.
Federal prosecutors said the fraud involved prescribing “compounded” drugs such as pain, scar and migraine creams to military families covered by Tricare, the federal health insurance program for active-duty and retired military and family members. “Ripping off the vulnerable and sick should always have the severest of penalties”… says, lawyer William A. Miller of Phoenix, Arizona.
There have been at least two other federal probes alleging fraud with pharmacies that paid kickbacks to crooked doctors. Any venture, that offers a kickback, is heading for a disaster. Fraud is fraud. At the law firm of William A. Miller, of Scottsdale, we have seen fraud cases of ‘under the table’ payments for: bringing investors to the table, putting a real estate deal together (no commission unless you have a license) and mortgage brokering. All wrong, all regulated by statutes and Arizona Department Rules and Regulations. We are currently in appeal that involved a bank officer who would funnel REO’s to his dad’s development company. Same old story. Fraud.
If you have questions about finder’s fees, commissions, kickbacks, conflicts of interest and/or the legality of such, give us a call at 602.319.6899. Our office is conveniently located in Scottsdale, Arizona off of the 101.

Arizona Statute of Limitations

Posted on February 8, 2017 in Arizona Law Regarding Business and Real Estate

Based on the advice of their CPA, an Arizona auto dealership ‘thought’ they reduced their tax liabilities through stock ownership plans devised by their CPA. Much later the IRS disapproved of these plans. The IRS sent past due tax demands to the owners. Eventually, the IRS settled the claims against the owners. The owners paid…

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Arizona Register of Contractors =$$$

Posted on January 3, 2017 in Uncategorized

You can get money from the Arizona Register of Contractors (ROC) in Arizona through their recovery fund. It’s a mini insurance policy for flakey contractors. In Ramsey v. Arizona Registrar of Contractors a homeowner sought recovery for subpar contracting. The ROC intervened and moved to dismiss the case against the Recovery Fund. It said, the…

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A Good Win in 2016

Posted on September 24, 2016 in Arizona Law Regarding Business Disputes

In August of 2016, 22 days before a jury trial I had litigated for 3 years, I knocked the heck out of a corporate entity I deemed an ‘alleged sham’ who had contractually interfered with our client and their prospective business opportunities. We focused on Antwerp Diamond Exch. of Am., Inc. v. Better Bus. Bureau…

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Arizona Rules of Civil Procedure = Truth Finding

Posted on June 7, 2016 in Arizona Law Regarding Business and Real Estate

Prosecutors are in trouble after lawyers representing a doctor accused of fraud alleged the U.S. attorney’s office has been stealing documents. In court papers filed May 26, lawyers wrote prosecutors had gained access to discovery of the defense. According to the defense, an informant said an FBI agent had received CDs containing duplicates of discovery…

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Key dates in Arizona Appeals

Posted on May 25, 2016 in Arizona Law Regarding Business and Real Estate

Civil cases are almost always complicated and require experienced lawyers. This goes from the initial intake, through discovery, to trial and to post judgment wrangling. For instance, in Arizona, a passenger injured while in a taxi sued the taxi company for damages related to the injuries. A Maricopa County jury awarded the passenger $700,000. Not…

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Arizona Law- Sometimes Grace

Posted on January 19, 2016 in Arizona Law Regarding Business and Real Estate

Hiatt_v._Shah In 2010 upset Arizona investors sued a video developer in Maricopa County Court. There ended up being three separate cases. The Judge appointed a receiver to handle this. Later, in a settlement agreement the receiver issued Receivership Certificates to Hiatt and Shah granting them powerful purchase rights on receivership assets. The developer was unable…

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Arbitration is Changing the Game

Posted on November 2, 2015 in Arizona Law Regarding Business and Real Estate

Arbitration is changing the legal game. Be on your guard if you are faced with this. When Dr. Pierce accused her medical group of permitting sexual harassment she was forced to arbitrate in place of the filing a lawsuit. Presiding over the case was not a judge but a corporate lawyer, Mr. Kalogredis. When Dr….

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