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Jun 12, 2018

Skaters Inside Your Rental Property?


If any of these skaters are renting one of your properties just give a call and we can help!








Call landlord - tenant attorney Clint Dunaway at 480-344-4035.

May 31, 2018

A.R.S. 33-420: Fraudulently Recorded Documents

In Arizona, there are no real protections that prevent a person from fraudulently recording documents with the county recorder. I could literally quit claim deed the Arizona State Capital building to myself and the county will record it. The recorder’s office does not have the ability or duty to confirm that the documents are legitimate and so this can cause real problems. There are multiple occasions where I’ve had a client come into my office panicked because some type of fraudulent document had been recorded involving one of their properties. I’ve seen cases where easements were added without the owner’s knowledge or permission. Plus I’ve seen parcels split or property completely transferred to another person!!!

WHAT CAN YOU DO IF SOMEONE RECORDS A FRAUDULENT DOCUMENT?

Arizona law won’t prevent someone from wrongfully recording documents against your property. However, Arizona provides strict punishment for those who wrongfully record documents with the county recorder. A.R.S. § 33-420(C) provides for damages against the person who wrongly recorded the document. It allows for a minimum penalty of $1,000, or for treble the actual damage suffered, and attorney's fees.

A.R.S. § 33-420 states:

A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.

B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in the county in which the real property is located for such relief as is required to immediately clear title to the real property as provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section. In either case, the owner or beneficial title holder may recover reasonable attorney fees and costs of the action if he prevails.

C. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he wilfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.

D. A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.

E. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is guilty of a class 1 misdemeanor.
If someone has recorded a fraudulent document on one of your Arizona pieces of real estate then you need to contact Arizona Real Estate Attorney Clint Dunaway at: 480-344-4035 or email at cdunaway@davismiles.com.





May 11, 2018

Lake Havasu City Justice Court

Yesterday I attended a hearing at the Lake Havasu City Justice Court in Lake Havasu City, Arizona. The Court's address is: 2001 College Dr., Suite # 148 Lake Havasu City, Arizona 86403.

As you can see below it's not the most beautiful court house in Arizona but I guess it gets the job done!

 

Lake Havasu City Justice Court's phone number is: 928-453-0705.

Apr 11, 2018

What is a Lis Pendens?

What is a Lis Pendens?
It is a formal notice of pending legal action. The Lis Pendens is filed with the clerk of the court and then filed with the proper Arizona County Recorder. It must be filed subsequent to the beginning of a lawsuit surrounding the property in question.

What is the purpose of filing a Lis Pendens?
A Lis Pendens provides notice of a claim involving specific real estate to potential buyer, lender, and the general public. It will basically freeze an Arizona property so that it cannot be sold or refinanced.  

What is the effect of a Lis Pendens?
Any future person who acquires an interest in the property after a Lis Pendens is recorded is bound by the ultimate results of the pending lawsuit. So even though the Lis Pendens doesn't legally prevent a sale or loan from a practical point it does. Most prospective buyers, lenders and title insurers are very reluctant to become involved with property that could be adversely impacted by a pending suit.

When will the Lis Pendens be released?
Typically a court will not release the Lis Pendens until the underlying suit has been resolved in favor of the property owner.Therefore, from a practical perspective the lis pendens can tie up a property for years. This can be devastating for the owner and enormous leverage for the claimant. 

Is a Lis Pendens a lien?
No, in and of itself, a Lis Pendens does not place a legal lien on a property but it does carry some of the traits of a traditional lien.

If you have had a Lis Pendens filed against one of your properties or if you think you need to record a Lis Pendens then call real estate attorney Clint Dunaway at 480-344-4035 or email at: cdunaway@davismiles.com. 

Apr 5, 2018

Arizona's Anti-Deficiency Statutes

In Arizona, certain home owners are free to stop making payments their home and walk away from it with no financial recourse against them. These people are protected by what is commonly known as Arizona’s Anti-Deficiency Statutes.

Protection for residential borrowers is set forth primarily in A.R.S. §§ 33-729(A) which provides in part:
“if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment.”

Qualifying Properties.
To obtain anti-deficiency protection the property securing the loan must be (1) two and one-half acres or less, (2) limited to a single one-family or a single two-family dwelling. The Arizona Supreme Court has interpreted this language to require that the dwelling be built and at least occasionally occupied. Mid Kan. Fed. Sav & Loan Ass’n, 167 Ariz. At 129, 804 P.2d at 1317. The property will qualify under the statute for anti-deficiency protection whether occasionally occupied by the owners or third party renters. Northern Arizona Properties v. Pinetop Properties Group, 151 Ariz. 9, 725 P.2d 501. (3) Additionally, the mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

Qualifying Mortgages.
Additionally, the mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

Refinanced Original Loan.
In Bank One, Arizona, NA. v. Beauvais, the Arizona Court of Appeals dealt with the extending, renewal or refinance of purchase money loans and held that:
"Given these strong statements concerning the legislature's consumer protection objective, we believe the legislature did not intend that a loan would lose its character as a purchase-money obligation when, as here, it is extended, renewed, or the remaining portion of the original loan is refinanced and the deed of trust on the property that was bought with the original loan continues or is renewed."

Debtor Protection.
If the property meets Arizona’s anti-deficiency statute, the lender may not obtain a deficiency judgment against the debtor. If a qualifying property is sold by the lender “no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses”. A.R.S. §§ 33-814(G). Therefore, certain Arizonian’s are able to walk away from their homes and face no financial recourse from their lender. 

If you need help from an Arizona real estate attorney then call Clint Dunaway at 480-344-4035 or email at cdunaway@davismiles.com.