Author name: jsinger

Owner may not cut down a tree straddling boundary line without neighbor’s consent

/ Nuisance, Trespass

In Young v. Ledford, 37 So. 3d 832 (Ala. Ct. Civ. App. 2009), an Alabama court held that an owner could not remove the half of a tree that sat on his property without killing it and that the owner could not destroy the entire tree without the neighbor’s consent. The landowner claimed that the tree was dangerous and might fall on the owner’s house and the court noted that it is possible an exception might be granted in such cases of boundary trees when they constitute a nuisance.

Bank not liable for fraud when it loaned money it knew the borrower could not repay

/ Consumer Protection, Mortgages

In Perlas v. GMAC Mortgage, 113 Cal. Rptr. 3d 790 (Ct. App. 2010), a bank made $417,000 worth of loans to borrowers with a gross income of only $50,000. Although that income was inadequate to make the mortgage payments, and the bank found that the borrower “qualified” for the loan, the court held that the bank did not engage in fraud. Qualification, the judge noted, does not imply affordability and the bank had no duty to the borrower to disclose the fact that the borrowers could not afford to make the loan payments. Contract this case with Commonwealth v. Fremont, 897 N.E.2d 548 (Mass. 2008) which held that granting such a loan might constitute an “unfair” practice in violation of the state consumer protection statute.

Native Alaskan family awarded $4.9 million in damages for trespass

/ Trespass, Tribal Property

A federal judge awarded the Oenga family of Barrow, Alaska $4.9 million dollars in damages against the United States because the Bureau of Indian Affairs (BIA) authorized BP oil company to cross the Oenga’s property to obtain access to 3 of BP’s oil fields when the family had only granted permission for access to one of those fields. Judge Awards Alaskan family $5M (U.S. News, Feb. 9, 2001) While the case is, in some sense, an ordinary trespass case, it is complicated by the fact that the BIA has legally-enforceable fiduciary obligations to protect the property rights of Native Alaskans. The Oengas are Inupiats (Eskimos).

Another court refuses to allow a bank to foreclose when it cannot produce authenticated proof of the assignments of the mortgage that give it a right to foreclose

/ Mortgages, Statute of Frauds

In the case of Wells Fargo Bank, N.A. v. Ford, 2011 N.J. Super. LEXIS 13 (N.J. Super. Ct. App. Div. 2011), the court remanded to allow the bank to provide proof that it had a right to foreclose through authenticated writings proving that it was assigned the mortgage and note by the prior holder of the mortgage and that it had the right to foreclose at the time the foreclosure action was brought.

A New Jersey trial judge allows foreclosure to proceed even though the bank cannot produce the mortgage note

/ Mortgages, Statute of Frauds

A bank lost the mortgage note and thus could not pass it along when it assigned the mortgage to the Bank of America, preventing the Bank of America from producing the note to prove that it had the right to foreclose on the property. The loan in question had been securitized and transferred from the original mortgagee, Washington Mutual Bank, to LaSalle Bank (the holder of the securitized and pooled loans) which was then acquired by Bank of America. Because Bank of America could show evidence of the assignment (but not written proof of the original mortgage), the trial court allowed it to foreclose on the ground that the mortgagor/homeowner would otherwise be unjustly enriched. In effect, the court used equitable principles to create an exception to the applicable statute of frauds which requiring a writing for the mortgage to be enforceable via foreclosure. The case is Bank of America, N.A. …

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Invalid foreclosure cannot be cured by quiet title action

/ Mortgages, Real Estate Transactions, Title Issues

In the case of Bevilacqua v. Rodriguez, 2010 WL 3351481 (Mass. Land Ct. 2010), the court held that parties cannot cure an invalid foreclosure by a quiet title action.The bank that brought the foreclosure action had no proof at the time of the foreclosure that it owned the mortgage (the right to foreclose) because it had no written assignment from the prior mortgagee. For that reason, the foreclosure was invalid under the rule adopted by the Supreme Judicial Court of the Commonwealth of Massachusetts in U.S. Bank National Ass’n v. Ibañez, 458 Mass. 637 (2011). Ibañez held that foreclosures are invalid if the mortgagee bringing the foreclosure action cannot (at the time the foreclosure action) produce a written document proving that it was assigned the benefit of the mortgage from the prior mortgage holder. Thus when the bank sought a declaratory judgment that the foreclosure was valid, the court rejected its claim. …

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No compensation when city takes private sewer system

/ Takings

A court in Massachusetts has held that no compensation is due when a city takes a private sewer system. North Adams Apartments, L.P. v. City of North Adams, 2011 Mass. App. LEXIS 41 (App. Ct. 2011). The court held that the transfer of title from the private owner to the city caused the owner no pecuniary loss; indeed, it benefited the owner by transferring maintenance obligations from the owner to the city. The court also noted that developers frequently created sewer hook-ups and then voluntarily (and without compensation) sought to transfer title to the municipality. Although one might think that loss of control of the sewer connections would constitute a property loss, the court’s factual finding was that there was no reduction in fair market value of the property and no economic value to the land owner in retaining ownership of the sewer connections.

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