Sep 11, 2018

Appealing an Arbitrator's Ruling


Received an Unfavorable Ruling from an Arbitrator? So what Can be Done?

There are two basic options available you can either appeal the arbitrator’s decision or you can appeal it. If you do not appeal the award then it will  then  become a final judgment. However, if we appeal the arbitration award then your case will continue moving forward in the Superior Court as if the arbitration hearing and arbitrator’s award had never happened.

I.                   LET THE DECISION STAND
A.    Decision Becomes Final- If you do not appeal the arbitrator’s decision within 20 days then that decision will become a judgment against you and in essence the case will be over.

II.                APPEALING THE DECISION
A.    Notice of Appeal- Within 20 days of the Arbitrator’s decision you must file a notice with the Court that states: “Notice from Arbitration and Motion for Trial Setting”. This is extremely important, this is a firm cutoff and we cannot miss this date.

B.     Deposit for Appeal- At the time of filing the notice of appeal of arbitrator's decision, you must deposit with the Clerk $140. If you are ultimately deemed to be the prevailing party then the deposit will be returned to you. However, if you are the losing party then the court will give your deposit to the opposing party.

C.     Downside to Appeal- Downside to Appealing the Arbitrator’s Award:
The case will continue moving forward and with that comes the cost, stress, and time associated with litigating the case. Additionally, as their attorneys’ fees continue to mount it increases your risk exposure if you were to take this case to trial and lose.

Ultimately, the decision whether to appeal the arbitrator’s award can only be made by you. If you are looking for an Arizona attorney to help you appeal an Arizona arbitrator's ruling then call us at 480-344-4035 or email at cdunaway@davismiles.com.

Aug 28, 2018

How to Remove a Wrongfully Recorded Lien?

How Can you Remove an Invalid Lien Recorded Against Your Home?

Occasionally, I am approached by clients who believe someone has recorded an invalid lien against their Property and want to know what they can do to remove it.

A.R.S. 33-420: Discusses the issues of remove groundless or fraudulent liens that have been filed.

A.R.S. 33-420(A): Provides a property owner at least $5000, or treble the actual damages caused by the recording of forged, groundless, misstated, or contains false claims. 

A.R.S. 33-420(C): Provides the property owner $1000, or treble actual damages, whichever is greater, and attorney fees and costs, if he willfully refuses to release or correct such document of record within 20-days from the date of a written request from the owner or beneficial title holder of the real property.

Removing the invalid lien can be someone complex depending upon the unique facts of your situation. So if you believe that a lien have been wrongfully recorded against one of your Arizona properties then contact real estate attorney Clint Dunaway at: 480-344-4035 or email cdunaway@davismiles.com. 


Aug 1, 2018

What is a Deed of Trust?

Arizona Promissory Notes
To fully understand the meaning of the deed of trust, you must first understand the promissory notes.

Arizona homebuyers often think of the deed of trust is the contract they are signing with the lender to borrow money to purchase their home. However, that's actually not the case. It's the promissory note that contains the promise to repay the amount borrowed.

While he promissory note is basically an IOU that contains the promise to repay the loan, the deed of trust is the document that pledges the property as security for the loan. It is the deed of trust that permits a bank to foreclose if you fail to make the monthly payments or breach the loan agreement in some other way.

Deeds of Trust
A deed of trust, pledges real property to secure a loan. In Arizona deeds of trust are used instead of a mortgage.

A deed of trust involves three parties:
  • the trustor, aka, the borrower;
  • the lender, often referred to as the beneficiary in legal documents;
  • and the trustee. The trustee is an independent third-party that holds their poor legal title to the property. The main function of the trustee is to sell the property at public auction if the trustor defaults on payments. Quite often, an Arizona, a real estate lawyer asked as trustee.
Deed of Trust Foreclosure
the judicial foreclosure is the process used with deeds of trust. In a nonjudicial foreclosure, the bank can't foreclose without going to court so long as the deed of trust contains a power of sale clause.

If you are looking for an Arizona real estate lawyer to answer questions you have about a deed of trust, then please call us at 480-344-4035 or email cdunaway@davismiles.com.




Jul 23, 2018

Real Estate Agent's Non-Disclosure of Known Defects

Arizona real estate agents are required to "disclose in writing to all other parties any information the licensee possesses that materially or adversely affects the consideration to be paid by any party to the transaction". A real estate agents failure to disclose a known defect about the property could put their license and jeopardy and expose themselves to financial sanctions.

R4-28-1101 of the Arizona Administrative Code of Professional Conduct: states that real estate agents owe a fiduciary duty to the client and shall protect and promote the client's interest. However, it also states that they are to deal fairly with all parties to the transaction--even the buyer.

What if a Complaint is made to the AZDRE?
If a complaint is made by a party to a real estate purchase that an Arizona real estate agent hid material information from the buyer than a notice will be sent to that real estate agent. The AZDRE will begin a thorough review of the complaint to make a finding of their own. As part of this review process it is highly likely that the AZDRE will ask the real estate agent for all documents pertinent to this situation. For instance, they may ask for all emails, text messages, contracts, addenda to the contract, etc.  

Do Not Simply Ignore the Department's Requests
If you are a real estate agent who has received a request from the AZDRE for documentation do not ignore them! Ignoring the problem will not make it go away. Don't think that by sticking your head in the sand the AZDRE will forget about the alleged violation. In fact, simply ignoring the Department's request for documents can cause you to lose your real estate license AND prevent your from renewing or reapplying for a license!

A.R.S. 32-2153(B)(11): States that "The commissioner may suspend or revoke a license, deny the issuance of a licese, issue a letter of concern to a licensee, issue a provisional license failure "to respond in the course of an investigation or audit by providing documents or written statements."




Don't be this type of an Arizona real estate agent! If you have found yourself in trouble with the Arizona Department of Real Estate then give me a call at 480-344-4035 or email at cdunaway@gmail.com. 

Jul 12, 2018

Recovering Future Rents from Tenant

If a tenant that is under a current lease agreement who is evicted or abandons the property; can that landlord sue for all future rents thru the end of the lease? The answer is; "yes", "no" and "maybe".

Let me answer this question by using an example. Landlord and Tenant sign a 24 month lease agreement. Tenant promises to pay $1,000 each month for rent. However, 6 months into the lease term the tenant does not pay rent and so the landlord evicts him. Tenant still has 18 months left on his 2 year lease. Can landlord sue tenant for the remaining 18 months? Maybe, I will answer the question in greater detail below.

"No", a Landlord may not sue for future rents.

Hypothetically, if the landlord finds a new tenant who begins paying rent the very next month then landlord may not sue the initial previous tenants for the future rent he should have paid. A landlord may not sue a tenant for future unpaid rents at an eviction hearing. Because the landlord won't know how long the property will sit empty and therefore the courts award would be based off of speculation. But a landlord can sue for all past rents owed during an eviction lawsuit.

A landlord has a duty to "mitigate" his losses. A landlord mitigates his losses after an eviction by doing everything possible to re-rent the property. Landlord must take the same actions they would if re-renting the property under normal circumstances. The Arizona landlord cannot simply let the property sit empty for 18 months and then sue the tenant because the property sat empty. He must take all reasonable actions to re-rent the property as soon as possible. Again, a landlord may not sue a tenant for future rent through an eviction lawsuit. However, there is another option a landlord may take to recoup losses from a breaching tenant.

Yes, a Landlord MAY sue a former tenant for unpaid rents.

Yes, a landlord may sue a former tenant for unpaid rents after they were evicted from the Property. However, the landlord must first market and re-rent the Property before suing the former tenant. The law doesn't allow for double-dipping, meaning you cannot sue a former tenant for terminating a lease 16 months earlier while collecting rent each month from a new tenant.

However, you can sue a previous tenant for all the months the Property sat vacant until it was re-leased to a new person. Using the example from above, let's assume the landlord re-rented the Property one month after evicting the previous tenant. In this situation the Property only sat empty for one month and so the previous tenant is only liable to one months rent to the Landlord. Regardless of how many more months or years were left on a previous tenants lease, a landlord can only sue for the months the Property actually sat empty.

For this, and other reasons it rarely makes sense to sue a tenant for the months a Property sat vacant before you re-rented it. Call experienced real estate attorney Clint Dunaway at 480-344-4035 or send me an email at cdunaway@davismiles.com.