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Welcome!
Welcome to the December 2009 issue of the Berk & Moskowitz newsletter. We wish you all a happy and safe holiday season!
As with all of our newsletters, we hope that you will find this issue interesting and informative. If you have any questions or suggestions, please let us know.
Sincerely,
Kent Berk & Frank Moskowitz |
| "Legal-ease"
The following is a courtroom exchange between a defense attorney and a farmer with a bodily injury claim.
Attorney: "At the scene of the accident, did you tell the constable you had never felt better in your life?"
Farmer: "That's right."
Attorney: "Well, then, how is it that you are now claiming you were seriously injured when my client's auto hit your wagon?"
Farmer: "When the constable arrived, he went over to my horse, who had a broken leg, and shot him. Then he went over to Rover, my dog, who was all banged up, and shot him. When he asked me how I felt, I just thought under the circumstances, it was a wise choice of words to say "I've never felt better in my life."
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 AZ Bankers Challenge Repeal of Much Debated Changes to Anti-Deficiency Statute
On October 20, 2009, the Arizona Bankers Association filed a Petiton with the Arizona Supreme Court challenging HB2008, which repealed the changes to Arizona's Anti-Deficiency Statute that were set to go into effect on September 30, 2009. The much debated changes would have required the borrower under a deed of trust whose property was sold at a trustee's sale to have demonstrated, among other things, that the borrower "used" the property for six consecutive months in order to qualify for the protection of the anti-deficiency statute. On September 4, 2009, Governor Brewer signed HB2008 which repealed those changes.
The Arizona Bankers Association is challenging the repeal on Constitutional grounds. The Association argues that the repeal is outside the scope of the special session in which it was passed and that it is unrelated to the other matters that were also passed during the session.
The Arizona Association of Realtors, with the Governor's approval, has intervened and filed an amicus brief in support of the repeal.
The Arizona Senate has since adopted, and Governor Brewer has signed Senate Bill 1004, which would repeal HB2008. If passed by the House, the Arizona Bankers Association has agreed to voluntarily dismiss its challenge to the repeal as the challenge would be moot.
The House is currently considering HB2004. One proposed version would not only repeal HB2008, but would add a new amendment excepting "speculative construction projects" from the protections of the anti-deficiency statute. The proposed amendment would only apply to those speculative construction projects where the contracts for such projects were entered into after January 1, 2010. The proposed amendment would also create a presumption of a "speculative construction project" if the property was not occupied as a residence for four consecutive months immediately after completion.
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About our Firm
Berk & Moskowitz is dedicated to providing topnotch and efficient legal representation. We handle a wide variety of matters involving disputes, arbitration and litigation, including:
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Short Sales and Arizona's Anti-Deficiency Statues
Short sales - a sale of property for an amount less than the balances owed on loans against the property, occur regularly in today's economy. By some estimates, more than 30% of all Arizona home-owners owe more on their home than their home is worth.
Rather than go through foreclosure (a non-judicial trustee's sale or judicial foreclosure), many homeowners and lenders agree on a short sale. Many people assume that the anti-deficiency statutes apply to short sales. That assumption is likely wrong.
While there are some advantages to short sales, people often overlook the benefits lost under Arizona's anti-deficiency statutes by selling the property short. At the same time, some lenders do not realize that short sales likely do not qualify for protection under Arizona's anti-deficiency statutes and, thus, do not pursue borrowers after short sales for the resulting deficiency.
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