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WHY MEDIATION TRUMPS LITIGATION

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“Where there are no oxen, the manger is clean, but an abundant harvest comes through the strength of the ox.” Proverbs 14:4. Put another way, if you don’t do any work, you might have a clean stable, but you won’t have any crops. Applying this principal to business, if you are involved with enough real estate deals in this litigious culture, sooner or later, you are bound to run into a dispute. Common real estate disputes include failure to close, lack of proper disclosure, title issues, and other issues concerning the property’s condition. Resolving disputes through the courts is often costly and inefficient.   Read More

Greed Doesn’t Pay: Excessive Interest Charged by Lender May Result in No Interest

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Pigs get fat and hogs get slaughtered. That is why hard-money lenders should avoid seeking hyper aggressive interest rates. Although conventional mortgage interest rates remain historically low, interest rates on private loans, or “hard money” loans range anywhere from 5% to multiples of the principal amount. But if lenders overreach, they may end up forfeiting all interest. Indeed, the defenses of usury and unconscionability are alive and well. Read More

Judgment Liens and Homestead Properties

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COURT RULES THAT JUDGMENTS DO NOT ATTACH AS LIENS TO HOMESTEAD PROPERTIES

Most civil cases never reach the trial stage.  Instead, they are settled before trial.  However, in those smaller percentage of cases that proceed all the way to trial, the Court will award to the prevailing party a judgment.  These judgments are typically recorded with the local county recorder’s office so that the judgment can attach as a “judgment-lien” on any non-exempt property owned by the debtor. Read More

ARE USURY LAWS STILL RELEVANT?

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One of the greatest misconceptions of Arizona law is that usury is no longer a viable cause of action. In the 1980s, Arizona amended the usury laws to remove the interest rate ceiling.  As a result, today’s usury laws essentially authorize lenders to contract for any interest rate. However, usury remains a viable defense against lenders who breach their own contracts by charging fees that aren’t allowed. Read More

Separation Agreements in Arizona

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Separation Agreements (A.R.S. § 25-317)

Sometimes married couples decide to separate, either in anticipation of divorce, giving one or both of the parties “some space,” or simply living separately for a while in hopes of sorting out their feelings and possibly reconciling.  Under Arizona law, married couples can remain married but enter into a legal contract governing their financial matters – the handling of property, debt or even support.  This is called a separation agreement and is controlled by A.R.S. § 25-317.   The Court of Appeals recently ruled that per the statute, for these separation agreements to be enforceable, the terms cannot be unfair.  Buckholtz v. Buckholtz, No. 1 CA-CV 17-0596 FC, filed January 15, 2019. Read More

Death and taxes: The Statutory Requirements for Purchasing, Redeeming and Foreclosing on Tax Liens in Arizona

By | Articles, Real Estate

Two things in life are certain: death and taxes. And if you don’t pay your taxes, there can be severe consequences. For example, if you fail to pay your property taxes, someone else can swoop in, pay the tax liability, and then ultimately claim title to your property.

Under Arizona law, a tax levied on real property is a lien on the assessed property. Read More

Election Of Remedies: Can Mortgagees Have Their Cake And Eat It Too?

By | Articles, Real Estate

Most secured creditors have multiple options if the debtor defaults on payment. That is precisely why they require borrowers to pledge security (such as real estate) for the performance of the repayment of the debt – so that if the borrower defaults, the creditor is not limited to the borrower’s promise to repay the debt – in addition, the creditor can seek reimbursement from the sale of the secured asset.

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How Long Can A Lender Wait Before Foreclosing

How Long Can A Lender Wait Before Foreclosing Or Suing On A Note?

By | Articles, Real Estate

Years ago, Justice Oliver Wendell Holmes, Jr. asked: “What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?” Several reasons exist: [1] our laws aim to resolve just claims within a reasonable time; [2] if a claimant sits on her rights for too long, relevant evidence to disprove the claim may be lost or destroyed by the passage of time; and [3] litigation of a long-dormant claim by result in more cruelty than justice

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The definition of "Encumbrance” in the real estate world

Word of the Day: “Encumbrance”

By | Articles, Real Estate

When it comes to real estate transactions, more often than naught, the “devil” is in the details. The Arizona Court of Appeals, Division One, recently provided a roadmap to the rules concerning the specificity of an agreement required to obtain specific performance of an option to purchase real property.

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Arizona’s Limited Liability Company Act

The LLC Act Overview

By | Articles, Business

Most real estate professionals understand that a purchase-money mortgage is senior to all other liens. But that is only mostly true. One important exception for all real estate professionals to be aware is the “PACA Trust.”

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