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October 31, 2007

Court of Appeal Finds That a Lender's Withdrawal of Deposited Funds Triggers a Statutory Waiver of all Claims in an Eminent Domain Action Except for a Claim for Greater Compensation

 
 
Court of Appeal Finds That a Lender's Withdrawal of Deposited Funds Triggers a Statutory Waiver of all Claims in an Eminent Domain Action Except for a Claim for Greater Compensation
by David Graeler and Kathlynn E. Smith

In a year that has seen most of the eminent domain reform come from the courts rather than the legislature, it should not come as a surprise that just as the 2006 - 2007 legislative session was ending (with only 2 of the 9 eminent domain reform bills and/or amendments passing), the Court of Appeal handed down another significant opinion that reshapes the eminent domain landscape. 

On August 31, 2007, Division 1 of the Fourth District Court of Appeal issued its ruling in Redevelopment Agency of the City of San Diego v. Mesdaq. ((2007) 154 Cal.App. 4th 1111.)  In Mesdaq, the Court of Appeal revisited three areas which have become familiar battlegrounds in eminent domain actions: (1) the proper date of valuation in protracted eminent domain actions; (2) the proper methodology to appraise loss of business goodwill; and (3) the property owner's entitlement to precondemnation damages (the "Big 3").  For each of these three issues, the Court followed prior California case law in reaching its holding without breaking much new ground.  One notable exception involves the holding that an appraiser may not value business goodwill by appraising an idealized, hypothetical, version of the business. 

While most commentaries on Mesdaq focus on the Big 3, this article focuses on the fourth issue of what effect a lender's withdrawal of funds deposited as probable compensation has on the borrower's right to challenge the taking of the property by a public agency.  This fourth issue is the subject of this article because it is the first time it has been addressed by the California appellate courts, and should effectively end an increasingly popular attempt by property owners to circumvent the statutory waiver provisions of the Eminent Domain Law.


[FULL STORY]
 

Also of Interest
Nossaman's Eminent Domain and Real Estate Practice Groups welcomed Partner Gale Connor to the firm on October 1.  To view a copy of the press release, please click here.
Nossaman Partner Rick Rayl will give a presentation titled "Use of New Technology - Courtroom, Mediation and Deposition" at the Appraisal Institute's 40th Annual Litigation Seminar in Irvine on November 28 at 1:40 p.m.  For additional information, please click here.
Nossaman Partner David Graeler and Associate Kathlynn Smith recently authored the e-alert "California Court of Appeal Approves of New Method to Value Business Goodwill in Eminent Domain Cases" on August 10.  To view a copy of this e-alert, please click here.


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October 31, 2007



 
EMINENT DOMAIN PRACTICE
David Graeler
213 612-7836
Kathlynn E. Smith
213 612-7803
F. Gale Connor
415 438-7240
Dennis M. Devitt
213 612-7811
K. Erik Friess
949 833-7800
Bradford B. Kuhn
949 833-7800
Thomas D. Long
213 612-7871
Karen McLaurin
213 612-7860
Lloyd W. Pellman
213 612-7802
James C. Powers
213 612-7835
Rick E. Rayl
949 833-7800
Benjamin Z. Rubin
949 833-7800
Michael G. Thornton
415 438-7202
James H. Vorhis
213 612-7864
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October 29, 2007

HUD USER News


From: HUD USER News
 
It is a critical time for the residential construction
sector. With single-family housing construction
increasing dramatically over the past five years, and
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October 22, 2007

Barber v. Chang, Landlord Tenant

Overview: In a negligence action arising from a shooting by a tenant, the owner of an apartment complex failed to establish that he owed no duty to a former tenant to take simple protective measures because the owner had received a report that the shooter had brandished a gun and thus was alerted that the shooter posed a risk of serious injury. 

Barber v. Chang (2007) , Cal.App.4th [No. G036448. Fourth Dist., Div. Three. Jun. 13, 2007.]

LEROY BARBER, Plaintiff and Appellant, v. WILLIAM WU-YE CHANG, Defendant and Respondent.

(Superior Court of Orange County, No. 04CC10791, William M. Monroe, Judge.)

(Opinion by Aronson, J., with Fybel, J., concurring. Concurring opinion by Rylaarsdam, J.)

COUNSEL

[No. G036448. Fourth Dist., Div. Three. Jun. 13, 2007.]

Emling Forensis and Michael J. Emling for Plaintiff and Appellant.

Law Offices of Richard J. Wianecki, Paul W. Rosenfield and Dana C. Clark for Defendant and Respondent. {Slip Opn. Page 2}

OPINION

ARONSON, J.-

Leroy Barber appeals from the trial court's entry of summary judgment on his negligence claim against William Wu-Ye Chang, the owner of a small apartment complex where a tenant shot Barber. Barber contends Chang had a duty to adopt measures to reduce the risk of harm posed by a potentially violent tenant, and claims triable issues of fact exist on whether Chang responded reasonably to written notice the tenant had recently brandished a shotgun at another visitor and tenant. We conclude Chang failed to carry his initial burden on summary judgment to show he owed no duty to undertake minimally burdensome measures to alleviate the risk posed by a violent tenant. Accordingly, we reverse the judgment.

IFACTUAL AND PROCEDURAL BACKGROUND

Barber and his longtime companion, Chanda King, moved into one of the four units in Chang's apartment complex in 1995. The couple had two young children, and Chanda's 6-year-old son, Christopher, also lived with them. That same year, Carol Gray and her son, Daniel, moved into another unit in the complex. Daniel was about 12 years old at the time. Chanda's mother, Jean King, moved into her own unit in Chang's complex in 1996. Jean described Daniel Gray as "an odd kid." Over the years Daniel periodically argued with other tenants concerning such things as pet droppings left on the common lawn. He often took pictures of people visiting the apartments or of tenants engaging in activities that annoyed him.

Barber and Chanda moved out in May 2002. They later claimed Daniel's harassment had escalated into a physical confrontation between Barber and Daniel over whose dogs had defecated on the lawn. Barber called the Anaheim police concerning the incident, but he did not report the matter to Chang. According to Chang, Barber and {Slip Opn. Page 3} Chanda were behind in their rent when they moved out, and they left the apartment "in very bad shape." Daniel offered to clean the apartment and perform other handyman services for Chang in exchange for credit towards rent. When Chang agreed, Daniel and his girlfriend moved into the apartment.

Chanda returned to the complex often because her son Christopher generally resided there with Jean, so he could stay enrolled at the local high school. According to Chang, between "May of 2002 and March of 2004, Leroy Barber had only been back to the apartments on a few occasions. At no time during those few visits did Daniel Gray ever confront Leroy Barber."

By April 2004, Daniel had reached adulthood and still lived in Chang's complex. On April 4, 2004, Chanda dropped Christopher off at her mother's and, as she prepared to leave in her van, Daniel circled the vehicle, snapping photographs. He remained silent at first, but bumped Chanda two or three times as she made her way to the driver's seat. He then exclaimed, "'Leave me alone,'" "'Bring Leroy over here and I'll take care of him,'" "'Bring Leroy here. Bring him here' and 'Don't bother me.'" Jean witnessed the incident and saw Daniel run up to his apartment as Chanda settled into the van. Daniel emerged from his apartment with a shotgun, ran toward Chanda's van, and aimed the gun at her vehicle as she departed down the alley. Daniel said nothing and did not pull the trigger, but simply turned and trained the shotgun on Jean as he climbed the stairs back to his apartment.

Terrified, Jean retreated to her unit. The next day, she sent a certified letter to Chang's son, Wei Chang, who managed the fourplex. The letter stated: "Last night I had an incident with Daniel that has me scared to death. At about 8[:]15 PM Chanda came over to bring Chris home, [and] when she got out of the van Daniel came to his {Slip Opn. Page 4} window and started yelling at us 'leave my family alone[.]' Chanda came into the house and stayed about 30 minutes[;] when she left she was putting the puppy in the van, [and Daniel] came running down the stairs and ran around the van 3 or 4 times screaming 'leave my family alone[.]' Chanda asked him what was the matter [but] he just screamed[;] then she got into the van to leave, [and] he ran upstairs and came right back down with a shotgun, ran out to the back of the garages and pointed the gun at the van as it went around the corner. He then came back towards the front pointing the gun at me and again yelling 'Leave my family alone[.]'"

Jean's letter continued: "I have done nothing to him[;] as a matter of fact I have gone out of my way to stay away from him. I realize that he has bad feelings about Leroy, but to take that out on my . . . daughter and my grandson is inexcusable. He has constantly harassed Chris, to the point he is afraid to even be out when Daniel is around. [¶] I did not call the police, because I don't want any more trouble but truthfully I am afraid for my life. [¶] . . . [¶] I hope that you can do something about this problem so that I will again feel safe in my home. [¶] Please call me so that we can discuss this matter. [¶] . . . [¶] The [s]ecurity guard here [at her workplace] has advised me that I should have called the police, as it is a felony to aim a gun at anyone. But as I said before I really don't want any more trouble. [¶] Please help me with this matter."

Chang telephoned Jean when he received the letter. He advised her he could not "take action as a landlord" unless she filed a police report or obtained a restraining order against Daniel. He also suggested she speak with Daniel's mother about the incident.

About three weeks later, on April 28, 2004, Barber visited the complex to retrieve a tool from Jean's garage. Neither Chanda nor her mother had told him about the {Slip Opn. Page 5} April 4th incident with Daniel. As Barber rummaged about for the tool, he heard footsteps in the alley. Turning, he spotted Daniel. According to Barber, Daniel's eyes were "very bulgy and big," and Daniel stared at him "with no words exchanged whatsoever." Then Barber "heard Daniel up in his apartment, which was up above the garages." After "a bunch of booming and banging, . . . like he was throwing chairs around," Daniel reappeared, "flying around the corner [with a] 12-gauge pump in his hand."

Barber did not know Daniel had called 911. According to Barber, he later learned Daniel "had told Anaheim PD that he was armed with a shotgun . . . and that he was going to come down and interrogate me and shoot me, which is exactly what he did." Daniel accused Barber of stalking his family, felled Barber with a shotgun blast to the leg, kicked out one of Barber's teeth, stomped his wounded leg, and then placed the gun in Barber's "rectal area." Barber jumped, and Daniel pulled the trigger, inflicting another wound to Barber's leg. The police arrived and, after a standoff in which Daniel held the shotgun to Barber's temple, Daniel finally surrendered the gun and the police subdued him.

Barber filed a complaint alleging a cause of action for negligence. The complaint generally alleged Chang owed Barber "a duty of reasonable care" and "a duty to take reasonable action to protect plaintiff from harm." The complaint also alleged Chang breached his duty of care by "failing to take reasonable steps to provide security for Plaintiff from known threats and conditions present at the rented premises."

At his deposition in this matter, Wei Chang described his telephone conversation with Jean after he received her letter: "What I said was you have to call the police, you have to file a police report. And you need to file a restraining order because {Slip Opn. Page 6} these are things that I, as a landlord or manager, cannot act upon until I have documentation that's a little more forceful than what one tenant says of another." According to Chang, he treated Jean's letter as "a serious matter," acknowledging, "I think that this is a threat, if it is true." Chang later stated in his deposition that he "believed" Jean's account of the April 4th incident. But in the declaration he subsequently filed in his summary judgment motion, he repeatedly referred to Daniel's history as a "good tenant" and to Jean "reporting an incident that was supposed to have occurred April 4, 2004, wherein Daniel [G]ray brandished a shotgun." (Italics added.) Chang stressed in his declaration he "had never received any complaints about Daniel Gray having to do with any kind of violence whatsoever."

Chang moved for summary judgment solely on the ground he owed Barber no duty of care. Chang's separate statement focused only on whether he had a duty to hire security guards to prevent Daniel from harming visitors to the complex. Chang claimed "there was no reasonable security measure that should have been in place" and "[i]t is unreasonable for a landlord to be expected to hire a security guard to protect a non-resident who may have a confrontation with a tenant when the non-resident decides to visit the premises at an unknown date and time . . . ." Chang supported these claims with a declaration from his expert witness, who concluded "[t]his incident was not foreseeable based on previous crimes that have occurred on the premises. There is no history of prior similar incidents, shootings or crimes of violence at this location."

In his opposition, Barber contended triable issues of fact precluded summary judgment and repeated the claim in his complaint that Chang "so negligently managed the premises that plaintiff was exposed to unreasonable risk of harm." In support, Barber presented a declaration from his expert, who opined Chang should have {Slip Opn. Page 7} reported Daniel's felonious assault on King and Chanda to the police and hired security guards to protect tenants and invitees. The trial court granted Chang's motion, and Barber now appeals.

IISTANDARD OF REVIEW

We review a grant of summary judgment de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).) In performing our de novo review, we employ a three-step analysis. "First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact." (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-855, 860.) To shift the burden, defendant must conclusively negate a necessary element of the plaintiff's case or demonstrate there is no triable issue of material fact requiring a trial. (Hawkins, supra, 144 Cal.App.4th at p. 940.) If the evidence does not support judgment in defendant's favor, we must reverse summary judgment without considering the plaintiff's opposing evidence. (Ibid.) Any evidence we evaluate is viewed in the light most favorable to plaintiff as the losing party; we strictly scrutinize defendant's evidence and resolve any evidentiary doubts or ambiguities in plaintiff's favor. (Wiener, supra, 32 Cal.4th at p. 1142.) {Slip Opn. Page 8}

IIIDISCUSSION

A. Landowner Liability for Third Party Criminal Assaults

Before turning to the specific issues raised in Barber's appeal, we briefly summarize the applicable legal principles used in determining when a landowner owes a duty to alleviate the risk of a third party criminal assault on tenants and invitees.

The elements of negligence are established when it is shown "that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.).) "'[E]very [negligence] case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct.' [Citation.] The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. [Citation.] However, the elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination. [Citation.]" (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 (Vasquez).)

In Ann M., the California Supreme Court applied these principles in describing the general duty of landowners: "It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition" and, "[i]n the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures." (Ann M., supra, 6 Cal.4th at p. 674.) {Slip Opn. Page 9} But "a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated." (Id. at p. 676.) For example, a condominium owners association is potentially liable for injuries caused by third party criminal conduct where the association was aware of past similar crimes occurring on the property and of circumstances making a similar occurrence likely. (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 501-503; see also Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 807 [landowner potentially liable "in circumstances where the possessor has reasonable cause to anticipate the misconduct of third persons"].)

Thus, when the third party crime is committed by a tenant, foreseeability turns on whether the landlord had "notice of [the tenant's] propensity for violence." (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 596; accord, Madhani v. Cooper (2003) 106 Cal.App.4th 412, 416 [citing tenant's "known proclivity for making verbal and physical assaults"]; Davis v. Gomez (1989) 207 Cal.App.3d 1401, 1406 [question was whether tenant "had shown . . . dangerous tendencies"; summary judgment proper where review disclosed "no evidence whatsoever of the 'brandishing and exhibiting' to which appellants refer"]; Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 308 ["no evidence" suggested the "tenant ha[d] violent propensities or handle[d] firearms unsafely while drinking"]; see also Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 245 (Delgado) [prior "similar" incidents required, not prior "identical" ones].)

Foreseeability is a "crucial factor" in determining not only the existence of the landowner's legal duty, but its "scope." fn. 1 (Ann M., supra at pp. 676, 678.) In Ann M., {Slip Opn. Page 10} the court explained "the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden to be imposed. [Citation.] "'"[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required."'" (Id. at pp. 678-679.) Applying the heightened foreseeability standard, the court in Ann M. concluded the scope of the defendant landowner's duty there "did not include providing security guards in the common areas." (Id. at p. 674.) Because hiring security guards imposes significant financial and social costs, and because providing patrols "adequate to deter criminal conduct is not well defined," a "high degree of foreseeability is required in order to find that the scope of a landlord's duty of care includes the hiring of security guards." (Id. at p. 679.)

Where guards are not required, a landowner's duty may nevertheless include less burdensome steps to alleviate the risk of harm posed to tenants and invitees. As the Supreme Court explained in Delgado, "[T]he absence of heightened foreseeability in this case merely signifies that defendant owed no special-relationship-based duty to provide guards or undertake other similarly burdensome preventative measures; it does not signify that defendant owed no other special-relationship-based duty to plaintiff . . . ." (Delgado, supra, 36 Cal.4th at p. 245.) For example, a restaurant or bar proprietor has a duty to warn patrons of known dangers and to protect patrons from injury inflicted by other guests. (Id. at p. 241 [preventive measures may include telephoning the police for assistance]). {Slip Opn. Page 11}

"When the balance of all relevant factors weigh in favor of imposing a duty to protect someone from the conduct of others, a 'special relationship' is said to exist." (Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 912.) "'Special relationship'" is thus "'simply a label expressing the conclusion that the facts, considered in light of the pertinent legal considerations, support the existence of a duty of care.'" (Ibid.; see also Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 ["legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done"].) As noted, a landlord's general duty of maintenance includes the duty to take reasonable steps to secure the common areas against third party criminal acts -- where these acts are foreseeable. (Ann M., supra, 6 Cal.4th at p. 674.) With these principles in mind, we turn to the issues raised in this appeal.

B. Chang Failed to Meet His Initial Burden to Show He Owed No Duty of Care

Chang contends he owed no duty of care to Barber because Daniel's assault was not foreseeable. He argues the brandishing incident did not provide "notice" Daniel posed a risk of harm, and a duty would arise only if Chang had learned there was "evidence of prior potentially violent incidents involving [Daniel] discharging a weapon." Chang also argues his duties as a landlord did not extend to Barber because it was unforeseeable Barber would visit the property. Finally, Chang asserts no facts support a finding of heightened foreseeability and therefore he owed no duty to prevent any potential harm by hiring security guards. We address these issues in the order raised.

Barber's complaint alleged Chang owed "a duty to take reasonable action to protect [Barber] from harm." Chang argues no duty arose as a matter of law because there is no evidence Daniel had discharged the weapon in an earlier incident. In other {Slip Opn. Page 12} words, Chang contends the law requires a showing Daniel had committed a nearly identical prior crime to the one inflicted on Barber before Chang had a duty to act. Chang is mistaken. To establish heightened foreseeability, the law requires "prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents." (Delgado, supra, 36 Cal.4th at p. 245.) For example, a bank robbery does not put a landlord on notice to guard against sexual assault on the property, but prior crimes of theft and vandalism may make the crime of robbery a foreseeable occurrence. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1197-1198 (Sharon P.).) Notably, the foreseeability question here does not involve the prospect of "endemic" violence generally or a universe of "unknown assailants" (Ann M., supra, 6 Cal.4th at p. 679; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 776), but rather a particular tenant identified as a threat, i.e., Daniel.

Here, Jean's account of the April 4th incident demonstrated Daniel committed the misdemeanor offense of brandishing a shotgun in an angry and threatening manner (Pen. Code, § 417, subd. (a)) and, if the gun was loaded, the felony offense of assault with a firearm. (Pen. Code, § 245, subd. (a)(1); see People v. Lucas (1997) 55 Cal.App.4th 721, 732-735 [shooting death foreseeable as a natural and probable consequence of either brandishing or assault with a deadly weapon].) This would alert a reasonably prudent landlord Daniel posed a risk of serious injury to other tenants and invitees. Chang's own evidence established he knew the threat remained particularly acute for Barber. According to Chang's separate statement, Jean King "did not express any concerns to Wei Chang about her safety, just concern about Leroy Barber." (Italics added.) Chang's separate statement further described Barber as Gray's intended target: {Slip Opn. Page 13} "As Chanda King allegedly attempted to go around the van to the driver's side door, Daniel Gray allegedly told Chanda King to "'Bring Leroy here. Bring him here' and 'Don't bother me.'"

In any event, at his deposition, Chang himself recognized that Daniel represented "a threat, if it [Jean's letter] is true," and also testified he "believed" Jean's account. We agree with Chang that a tenant who brandishes a gun while uttering threats in the manner described by Jean poses a foreseeable risk of harm to others. Consequently, Chang failed to meet his initial burden demonstrating he owed no duty, based on lack of notice, to take measures to reduce the risk of harm Daniel posed to others. (See Ann M., supra, 6 Cal.4th at p. 678 [foreseeability in the context of the existence of duty is a question of law].)

Chang also suggested in his moving papers that he owed no duty of care to Barber because Barber was not a foreseeable plaintiff. (See Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 343.) Specifically, Chang noted Barber "rarely came over to the apartment[s]" and, accordingly, Chang claimed he owed no duty to take protective steps "in the off chance that Barber m[ight] come onto the premises." But Chang acknowledged in his separate statement Barber had visited the apartments periodically. Given that Chang knew Barber had a common law stepson and mother-in-law living at the property, Barber's presence was reasonably foreseeable. Like any other visitor to the property, moreover, Barber was entitled to reasonable protection from harm on the premises. (See Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 368 ["the visitor is the landlord's invitee, irrespective of whether the visit is for the visitor's or the tenant's business purpose, or whether the visitor comes as a mere social guest or other gratuitous {Slip Opn. Page 14} licensee of the tenant"]; see also Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1015 ["It is well settled that landowners owe a duty to tenants and invitees"].)

Chang's summary judgment motion asserted Barber could not show the heightened foreseeability required to impose a duty to hire security guards. As described above, Chang's separate statement focused solely on demonstrating no facts supported imposition of this particular duty. But Chang failed to address whether his duty of maintenance as a landlord included measures less burdensome than hiring guards to deal with the foreseeable risk Daniel posed. As the Supreme Court in Delgado explained, the "sliding-scale balancing formula" for determining duty requires heightened foreseeability before imposing burdensome protective measures on landowners, "but a minimal burden may be imposed upon a showing of a lesser degree of foreseeability." (Delgado, supra, 36 Cal.4th at p. 243.)

Barber's complaint alleged Chang owed him "a duty to take reasonable action to protect plaintiff from harm." Thus, Barber based his pleaded theory of recovery on the general duty of a landowner to protect tenants and invitees from the risk of harm posed by a potentially violent tenant. This allegation is broader than a specific duty to hire security guards, and covers "minimally burdensome measures" reasonable under the circumstances (Delgado, supra, 36 Cal.4th at p. 245), which may include investigating the incident to determine whether to evict the potentially violent tenant, threatening to evict the tenant, or invoking the aid of police on a credible report of a brandishing crime committed by one tenant against another. (See Ann M., supra, 6 Cal.4th at p. 679 ["landowner's duty includes the duty to exercise reasonable care to discover that criminal acts are being or are likely to be committed on [his] land"]; Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1847 [threat of eviction or eviction itself a "lever of control" which {Slip Opn. Page 15} landlord could use to protect others on the property]; Delgado, supra, 36 Cal.4th at p. 241 [noting 911 call as protective option]; see also Madhani, supra, 106 Cal.App.4th at p. 418 [threat of eviction or lesser, incrementally protective measures such as a security camera may inhibit problem tenant]; Rosales v. Stewart (1980) 113 Cal.App.3d 130, 135 [landlord's persuasion or threats may dissuade tenant].)

Our Supreme Court has observed that "placing a 911 call is a well recognized and generally minimally burdensome method of seeking assistance." (Morris v. De La Torre (2005) 36 Cal.4th 260, 277 (Morris).) In Morris, a gang member who had seized a knife from a restaurant kitchen stabbed a patron in the parking lot while three restaurant employees looked on without summoning aid. The Supreme Court recognized "there may be situations in which the response that is 'appropriate and reasonable under the circumstances' includes not making such a call --as when doing so unreasonably would increase the danger to a patron, invitee, employee, or anyone else legally upon the premises . . . ." (Ibid.) On the record presented, however, the court could not "conclude as a matter of law that defendant's employees acted reasonably in declining to place a 911 call or undertake any other minimally burdensome measure on plaintiff's behalf. That disputed issue must be resolved by a jury in connection with its determination of whether defendant breached his duty to plaintiff." (Id. at p. 278.)

Here, we conclude the facts Chang alleged in moving for summary judgment failed to establish that simple protective measures such as calling the police after Daniel's brandishing attack were unreasonable or too burdensome as a matter of law. Chang suggested Jean should have placed the call, but attempting to shift onto another the onus of acting does not absolve a landlord of the duty to take simple preventative measures in the face of foreseeable harm. At most, invoking actions others {Slip Opn. Page 16} might have undertaken merely suggests additional factors may have contributed to the shooting and Barber's resulting injuries. But Chang failed to identify causation as a ground for summary judgment in his initial motion. In any event, causation and whether the landlord's conduct is "reasonable under the circumstances -- that is, whether there was a breach of the defendant's duty of care," are generally questions of fact for a jury. (Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426-427.) Thus, while we have determined Chang failed in his moving papers to establish as a matter of law that simple protective measures were beyond the scope of his duty, it remains for future determination whether -- considering the circumstances as a whole -- Chang responded reasonably to notice of the danger his tenant posed. And even "[i]f the jury determines there was a breach, there still remains the question whether that breach was the cause of the plaintiff's injuries." (Ibid.; Vasquez, supra, 118 Cal.App.4th at p. 278.)

In sum, Chang's failure to address measures less burdensome than hiring security guards did not refute Barber's broadly pleaded theory of recovery. fn. 2 Chang therefore failed to carry his initial burden. (See, e.g., Hawkins, supra, 144 Cal.App.4th 936, 945 ["because the motion did not negate theories of employer liability, the trial court should have held that [defendant] failed to carry his initial burden and stopped there"].) Consequently, Chang's failure to deal with this aspect of duty required denial of his summary judgment motion. {Slip Opn. Page 17}

We emphasize that we do not decide the issue of security guards here. While Chang's contention that hiring security guards was too burdensome may prove to have merit at some subsequent point in these proceedings, he did not move for summary adjudication of that issue. fn. 3 (Civ. Proc., § 437c, subd. (f)(1).) Accordingly, we may not consider relief he did not request. We therefore hold only that the April 4th brandishing incident rendered the danger Daniel posed foreseeable enough that undertaking one or more minimally burdensome measures was not -- as a matter of law -- beyond the scope of a landlord's duty of maintenance on the facts Chang presented. Because Chang failed to move for summary judgment on protective measures less burdensome than imposing security guards, and therefore failed to carry his initial burden to "'conclusively negate[]'" the duty element of Barber's complaint, we must reverse. (Hawkins, supra, 144 Cal.App.4th at p. 940.)

For the benefit of the parties and the trial court on remand, we observe that the duty/foreseeability calculus is more complex with respect to security guards than for less burdensome measures. Whether a particular protective measure falls within the scope of a landlord's duty of care or is precluded as a matter of law depends on a "sliding-scale balancing formula" that weighs foreseeability against the burden attending the measure. (Delgado, supra, 36 Cal.4th at p. 243.) Other factors may affect this determination. For example, Ann M. emphasized not only the social and financial costs of hiring security guards, but also the uncertainty whether this measure is an effective deterrent against third party crimes. (Ann M., supra, 6 Cal.4th at p. 679.) As the Supreme Court has observed, such considerations "may dictate against expanding the {Slip Opn. Page 18} scope of a landowner's duty to include protecting against third party crime, even where there is sufficient evidence of foreseeability." (Sharon P., supra, 21 Cal.4th at pp. 1189-1190, fn. 2.)

Here, if properly presented with the issue, the trial court could consider the burden that hiring security guards would have on an individual owner of a small residential apartment unit, as opposed to larger commercial enterprises like the shopping center in Ann M., and weigh also the net benefit in safety to an invitee who made sporadic appearances on the property. (See Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 958 [what may be a minimal burden for the owner of a large apartment building or shopping center may create significant hardships for the owner of a four-unit project].) Issues unresolved by our opinion remain for the parties to address on remand as they choose.

IVDISPOSITION

The summary judgment is reversed. Barber is entitled to his costs on appeal.

Fybel, J., concurred. {Slip Opn. Page 1}

RYLAARSDAM, J., Concurring:

I concur. But I write separately to note that it was because of the limited scope of the landlord's duty that was presented to the trial court that I agree to reverse the judgment. Not only the existence of a landlord's duty, but also the scope of that duty, is a question of law. "Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678, italics added.)

In his motion for summary judgment defendant did not contradict that other measures he might have taken would also exceed the scope of his duty. He only asserted that he had no duty to provide guard service. I agree that to impose a duty to provide 24-hour guard service at this four unit apartment complex because of the brandishing incident would be unreasonably burdensome.

In Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, the plaintiff, who worked in a shopping center, was raped inside her store. In the suit against the owner of the center, she claimed it negligently failed to provide security sufficient to prevent the rape. The court determined the owner did not have "reasonable cause to anticipate that criminal conduct such as rape would occur in the shopping center premises unless it provided security patrols in the common areas." (Id. at pp. 676, 679.)

Here, the burden of hiring a round the clock security guard at a fourplex, in light of the one prior incident, is extreme. In Ann M. the court did not require a security guard for an entire shopping center. If a guard were needed, plaintiff could have had one to accompany him at far less expense than would be imposed on the landlord. {Slip Opn. Page 2}

My colleagues suggest a precautionary act defendant could have taken to protect plaintiff was to call the police. Jean, the person allegedly witnessing the prior act, stated in her deposition that, although she was initially reluctant to do so, after the brandishing incident she did speak to the police. When she called and explained what happened she was told "it would be [her] word against his." Although she expected the police "would at least investigate the fact that [Daniel] had a gun," to her knowledge nothing was ever done.

Under these circumstances, would a second call from the landlord, who could not claim to have witnessed the incident, be more likely to result in police action? And, if not, how can we say that the breach of the landlord's duty to call the police contributed to the shooting incident that injured plaintiff?

My colleagues also refer indirectly to the possibility that defendant might have evicted Daniel. But does a landlord have a legal duty to evict a tenant where the police fail to take action after a purported witness reports the incident to them? What liabilities might a landlord have incurred had the report proved to be false? Is it unreasonable for a landlord to require a police report or a restraining order to begin eviction proceedings after he learns of an incident such as the brandishing that allegedly occurred here?

These are issues that were not litigated in the trial court. In concurring in the reversal of the summary judgment, I do not intend that the opinion should be read so as to preclude the court from considering such matters.

­FN 1. Other factors also bear on the existence and scope of a legal duty, such as: "'[T]he degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.'" (Ann M., supra, 6 Cal.4th at p. 675, fn. 5)

­FN 2. "[A] party may plead negligence . . . in general terms." (Singer v. Superior Court (1960) 54 Cal.2d 318, 323.) If, in crafting his motion for summary judgment, Chang desired a more definite statement of the security measures Barber believed Chang neglected, interrogatories and other discovery mechanisms were at his disposal. (Id. at p. 324; see also Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 75 ["trial court may, in its discretion, require the clarification of the complaint"].)

­FN 3. Chang sought summary adjudication only of Chanda's loss of consortium claim, based on the fact the couple were not married. The trial court summarily adjudicated the issue in Chang's favor, and Chanda filed no appeal.

 

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Kanjorski Introduces Escrow, Appraisal, and Mortgage Servicing Improvements Act

FOR IMMEDIATE RELEASE  
Oct. 16, 2007 
Contact: Abigail McDonough
202-225-6511                       

  KANJORSKI INTRODUCES ESCROW, APPRAISAL, AND MORTGAGE SERVICING IMPROVEMENTS ACT
Comprehensive Bill to Improve Consumer Protection Enhances Mortgage Servicing Standards and Appraiser Independence 

WASHINGTON - Congressman Paul E. Kanjorski (D-PA), the chairman of the House Financial Services Capital Markets, Insurance, and Government Sponsored Enterprises Subcommittee, today introduced H.R. 3837, the Escrow, Appraisal, and Mortgage Servicing Improvements Act.  The bill responds to growing complaints of abusive and deceptive practices related to mortgage servicing and appraisals, especially in the subprime mortgage market.  Congressman Barney Frank (D-MA), Chairman of the House Financial Services Committee, joined as an original co-sponsor of the bill.
"This bill offers a comprehensive, balanced, and progressive set of solutions to solve a number of perplexing policy issues.  It helps protect consumers by improving mortgage servicing, enhancing appraisal quality and standards, ensuring better appraisal oversight, and requiring escrows for those mortgages where borrowers are more likely to experience difficulty in budgeting for the often substantial costs of taxes and insurance," stated Congressman Kanjorski.  "We need to reform the mortgage lending and servicing process.  The bill's reforms are part of a complete solution to abusive lending."

Congressman Kanjorski first became interested in these issues because of problems of excessive foreclosures in Monroe County, Pennsylvania that resulted from unaffordable mortgages, appraisal inflation, poor servicing, and fraudulent actions, among others.  During the last six years, he has worked to convene hearings on these issues, investigate solutions to these problems, and develop legislation and amendments to address these matters.  Today, the problems of subprime lending are much more evident throughout the national marketplace, and the need to enact legislation to improve lending in this sector is even greater.  The bill builds on a legislative proposal previously developed by the Congressman.

"I commend Congressman Kanjorski for introducing the Escrow, Appraisal, and Mortgage Servicing Improvements Act, which focuses much needed attention on the role that loan servicers and appraisers have played in the subprime foreclosure crisis.  Requiring lenders to escrow for taxes and insurance on subprime mortgages is an essential step to preventing families from unfairly losing their homes," said Michael D. Calhoun, President, Center for Responsible Lending.  The nonprofit, nonpartisan research and policy organization is a national leader in legislative efforts to eliminate abusive financial practices.

In addition to consumer groups, Congressman Kanjorski expects the bill to garner the support of appraisers, real estate professionals, and responsible mortgage originators.

H.R. 3837 targets abusive lending practices by incorporating such elements as:

Mortgage Servicing Reforms
Subprime borrowers are significantly less likely than prime borrowers to have escrow accounts, despite the fact that subprime borrowers are more likely to require budgeting assistance due to their weaker credit histories.  As a result, the bill requires certain borrowers to have escrow or impound accounts established in conjunction with their mortgages to provide protection against tax liens, the forced-placement of insurance, and unanticipated taxes and insurance premiums.  In addition, lenders must provide written disclosures about the need to pay taxes and insurance premiums to all borrowers if they opt out of creating escrow accounts.

The bill also updates the Real Estate Settlement Procedures Act (RESPA) to create new consumer protections for mortgage servicing, such as detailing when the servicer can impose force-placed insurance, mandating swifter responses to consumer written inquiries, increasing penalties for abuses, and requiring the prompt crediting of payments.

To ensure that lenders alert borrowers to all costs involved in a transaction, the bill requires the inclusion of escrow payments for taxes and insurance in any repayment analysis provided to consumers at the time of a quote on a mortgage.
 
Appraisal Improvements
The legislation prohibits the lender from making a high-cost mortgage without first obtaining a written appraisal of the physical property.  The bill also protects these consumers against loan flipping by requiring a second written appraisal, free of charge, if another loan on the property occurred in the past six months.  Lenders must also provide borrowers with one free copy of each appraisal at least three days before the closing date on the property.

To ensure that appraisers remain independent from the transaction and verify the true value of the property for the buyer, seller, lender, and investor, the bill creates Federal appraisal independence standards within the Truth in Lending Act (TILA) and the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA).  These standards prohibit the parties involved in a real estate transaction from influencing the independent judgment of an appraiser through collusion, coercion, and instruction, among other activities.  They also require appraisers to have no direct or indirect interest in the property or transaction involving the appraisal.  The bill additionally establishes tough penalties for failures to maintain this needed independence.

The bill also updates Title XI of FIRREA to enhance accountability of the Appraisal Subcommittee, improve Federal oversight of appraisals, and better protect mortgage borrowers.  The Appraisal Subcommittee is housed within the Financial Institutions Examination Council and consists of representatives from the Federal financial regulators.  The bill's changes will provide the Appraisal Subcommittee with a consumer protection mandate and more authority to monitor the performance of State appraisal agencies.  The Subcommittee is also required to describe its activities in detail in its annual report to Congress.  Many changes are also designed to strengthen appraiser licensing and education standards.

Lastly, the bill's amendments to TILA will allow consumers to obtain copies of all appraisal valuation reports at least three days before the closing of transactions.  This requirement will help to ensure that borrowers know if an appraiser calculates a different value than the one used to justify the transaction which could help them avoid incidents of relying on faulty appraisals that overvalue the underlying property.

In the coming weeks, Congressman Kanjorski, who is the second most senior Member of the House Financial Services Committee, will work with his colleagues on the Committee to incorporate the escrow, appraisal, and mortgage servicing reforms provided in H.R. 3837 into a comprehensive legislative package designed to combat abusive and deceptive lending practices in the subprime marketplace.  In addition to Chairman Frank, Congressmen Charles Wilson (D-OH) and Paul Hodes (D-NH) helped to introduce the bill.  The House Financial Services Committee is expected to consider this legislation in the near future.

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October 21, 2007

BILL NUMBER: SB 385 INTRODUCED

BILL NUMBER: SB 385 INTRODUCED
BILL TEXT


INTRODUCED BY   Senator Machado

                        FEBRUARY 21, 2007

   An act to add Section 10248.7 to the Business and Professions
Code, to add Sections 215.5, 22169, and 50333 to the Financial Code,
and to add Section 13984 to the Government Code, relating to
mortgages.



LEGISLATIVE COUNSEL'S DIGEST


   SB 385, as introduced, Machado. Nontraditional mortgage products.
   The Business, Transportation and Housing Agency consists of
various agencies, including, but not limited to, the Department of
Corporations, the Department of Real Estate, and the Department of
Financial Institutions. The agency is under the supervision of the
Secretary of Business, Transportation and Housing.
   Under existing law, state financial institutions are regulated by
the Department of Financial Institutions. Other entities that engage
in the business of making or brokering residential mortgage loans are
regulated by the Department of Corporations under the California
Finance Lenders Law or the California Residential Mortgage Lending
Act or by the Department of Real Estate under the Real Estate Law.
Federal financial institution regulatory agencies and the Conference
of State Bank Supervisors, together with the American Association of
Residential Mortgage Regulators, have each published guidance on
nontraditional mortgage product risks.
   This bill would require the Commissioner of Financial Institutions
to issue regulations applying that guidance to all state regulated
financial institutions and to issue emergency regulations in that
regard. The bill would also require the Commissioner of Real Estate
and the Commissioner of Corporations to adopt regulations or rules
applying the guidance to real estate brokers and licensees,
respectively, and would require those commissioners to adopt
emergency regulations or rules in that regard. The bill would require
the Secretary of Business, Transportation and Housing to ensure
these commissioners adopt those regulations or rules in a consistent
manner.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  (a) The Legislature finds and declares that uniform
application of the Interagency Guidance on Nontraditional Mortgage
Product Risks and the guidance on nontraditional mortgage product
risks by the Conference of State Bank Supervisors and the American
Association of Residential Mortgage Regulators to both federal and
state licensees is critical to protect borrowers and lenders.
   (b) It is the intent of the Legislature that the Department of
Real Estate, the Department of Financial Institutions, and the
Department of Corporations take steps to ensure that lenders and
brokers are aware of the existence and content of the guidance as
soon as possible and that lenders and brokers are encouraged to
comply with the guidance before formal regulations are adopted
requiring them to do so.
  SEC. 2.  Section 10248.7 is added to the Business and Professions
Code, to read:
   10248.7.  (a) The commissioner shall adopt regulations applying
the guidance on nontraditional mortgage product risks published on
November 14, 2006, by the Conference of State Bank Supervisors and
the American Association of Residential Mortgage Regulators to real
estate brokers. The regulations shall include subsequent amendments
to that guidance.
   (b) The commissioner shall adopt emergency regulations to
implement this section as soon as possible.
  SEC. 3.  Section 215.5 is added to the Financial Code, to read:
   215.5.  (a) The commissioner shall issue regulations applying the
Interagency Guidance on Nontraditional Mortgage Product Risks
published on October 4, 2006, by Office of the Comptroller of the
Currency, Treasury, Board of Governors of the Federal Reserve System,
Federal Deposit Insurance Corporation, Office of Thrift Supervision,
Treasury, and the National Credit Union Administration to state
regulated financial institutions. The regulations shall include
subsequent amendments to that guidance.
   (b) The commissioner shall issue emergency regulations to
implement this section as soon as possible.
  SEC. 4.  Section 22169 is added to the Financial Code, to read:
   22169.  (a) The commissioner shall make regulations applying the
guidance on nontraditional mortgage product risks published on
November 14, 2006, by the Conference of State Bank Supervisors and
the American Association of Residential Mortgage Regulators to
licensees. The regulations shall include subsequent amendments to
that guidance.
   (b) The commissioner shall make emergency regulations to implement
this section as soon as possible.
  SEC. 5.  Section 50333 is added to the Financial Code, to read:
   50333.  (a) The commissioner shall promulgate rules applying the
guidance on nontraditional mortgage product risks published on
November 14, 2006, by the Conference of State Bank Supervisors and
the American Association of Residential Mortgage Regulators to
licensees. The regulations shall include subsequent amendments to
that guidance.
   (b) The commissioner shall promulgate emergency rules to implement
this section as soon as possible.
  SEC. 6.  Section 13984 is added to the Government Code, to read:
   13984.  In order to ensure that the guidances specified in Section
10248.7 of the Business and Professions Code and Sections 215.5,
22169, and 50333 of the Financial Code are applied uniformly to all
California entities engaged in the brokering, servicing,
underwriting, and issuance of nontraditional mortgage products, the
secretary shall ensure that the Commissioner of Real Estate, the
Commissioner of Financial Institutions, and the Commissioner of
Corporations adopt and implement in a consistent manner regulations
or rules applying the guidances.
                        
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October 20, 2007

BILL NUMBER: SB 223 CHAPTERED

BILL NUMBER: SB 223 AMENDED
BILL TEXT

AMENDED IN SENATE  APRIL 30, 2007
AMENDED IN SENATE  APRIL 17, 2007
AMENDED IN SENATE  APRIL 10, 2007

INTRODUCED BY   Senator Machado

                        FEBRUARY 13, 2007

   An act to amend Section 11323 of the Business and Professions
Code, and to add Article 7 (commencing with Section 1090.5) to
Chapter 1 of Title 4 of Part 4 of Division 2 of the Civil Code,
relating to real estate appraisals, and declaring the urgency
thereof, to take effect immediately.



LEGISLATIVE COUNSEL'S DIGEST


   SB 223, as amended, Machado. Real estate appraisals.
   (1) The Real Estate Appraisers' Licensing and Certification Law,
which is part of the Real Estate Law, provides for the licensing and
certification of real estate appraisers. That law prohibits a
licensed appraiser from engaging in any appraisal activity in
connection with the purchase, sale, or transfer of real property if
his or her compensation is affected by the sales commission generated
by the transaction for which the appraisal was made. Existing law
makes a knowing and willful violation of the Real Estate Law a
misdemeanor.
   This bill would prohibit a licensed appraiser from engaging in any
appraisal activity in connection with the purchase, sale, transfer,
financing, or development of real property if his or her compensation
is dependent on or affected by the value conclusion generated by the
appraisal. By broadening the definition of a crime, this bill would
impose a state-mandated local program.
   (2) Existing law regulates the transfer of real property and the
activities of real estate brokers and mortgage lenders.
   This bill would prohibit anyone with an interest in a real estate
transaction involving an appraisal from improperly influencing, as
specified, the reporting, result, or review of a real estate
appraisal sought in connection with a mortgage loan. The bill would
provide, if a person is licensed by a state licensing law, that a
violation of these provisions shall be deemed a violation of that
state licensing law.
   (3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   (4) This bill would declare that it is to take effect immediately
as an urgency statute.
   Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 11323 of the Business and Professions Code is
amended to read:
   11323.  No licensee shall engage in any appraisal activity in
connection with the purchase, sale, transfer, financing, or
development of real property if his or her compensation is dependent
on or affected by the value conclusion generated by the appraisal.
  SEC. 2.  Article 7 (commencing with Section 1090.5) is added to
Chapter 1 of Title 4 of Part 4 of Division 2 of the Civil Code, to
read:

      Article 7.  Unlawful Influence of Appraisers


   1090.5.  (a) No person with an interest in a real estate
transaction involving an appraisal shall improperly influence or
attempt to improperly influence, through coercion, extortion,
bribery, or threat or bribery , the
development, reporting, result, or review of a real estate appraisal
sought in connection with a mortgage loan.
   (b) Subdivision (a) does not prohibit a person with an interest in
a real estate transaction from asking an appraiser to do any of the
following:
   (1) Consider additional, appropriate property information.
   (2) Provide further detail, substantiation, or explanation for the
appraiser's value conclusion.
   (3) Correct errors in the appraisal report.
   (c) If a person who violates this section is licensed under any
state licensing law, a violation of this section shall be deemed a
violation of that state licensing law.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
  SEC. 4.  This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
   In order to take immediate steps to bring credibility to mortgage
lending in California, and to protect consumers and other
participants in mortgage transactions from fraudulent and deceitful
practices, it is necessary that this act take effect immediately.

     

      

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October 18, 2007

Decline-in-Value reassessments

 
Taxpayer Alert
 

It has recently come to our attention that a private company is doing a mass mailing to property owners offering their services to pursue a reduction in their property taxes. Specifically, they are seeking to file an assessment appeal on the property owner’s behalf. While there is no initial fee charged for the filing of an appeal, if a reduction is granted, this particular company will receive 45% of the amount of the tax savings for the next two years. We expect other private companies to offer similar services for a fee or a percentage of any tax savings.

Solicitations of this type may not be illegal, but property owners should be aware that the Assessor’s Office provides a simple filing process for a reduction in their property taxes at no charge.

The 2007-08 tax bill shows the taxable value of your property as of January 1, 2007. If you believe this value is more than the fair market value of your property as of January 1, 2007, you can file a Decline-in-Value (Proposition 8) application. We will review the application and if a reduction is warranted, the taxable value will be reduced without the need to file a formal assessment appeal application.

For more information on
 
Taxpayer Alert
 

It has recently come to our attention that a private company is doing a mass mailing to property owners offering their services to pursue a reduction in their property taxes. Specifically, they are seeking to file an assessment appeal on the property owner’s behalf. While there is no initial fee charged for the filing of an appeal, if a reduction is granted, this particular company will receive 45% of the amount of the tax savings for the next two years. We expect other private companies to offer similar services for a fee or a percentage of any tax savings.

Solicitations of this type may not be illegal, but property owners should be aware that the Assessor’s Office provides a simple filing process for a reduction in their property taxes at no charge.

The 2007-08 tax bill shows the taxable value of your property as of January 1, 2007. If you believe this value is more than the fair market value of your property as of January 1, 2007, you can file a Decline-in-Value (Proposition 8) application. We will review the application and if a reduction is warranted, the taxable value will be reduced without the need to file a formal assessment appeal application.

For more information on Decline-in-Value reassessments and a link to the application form, please click here

and a link to the application form, please click here
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Fannie Mae's Here to Help, The Best Years for Housing Are Still Ahead

Fannie Mae's Here to Help, The Best Years for Housing Are Still Ahead

This statement describes Fannie Mae's commitment to the nation's housing market and outlook for the future, a summary of the September 20, 2007 Congressional testimony of Dan Mudd, President and CEO of Fannie Mae.

 

 

 

These are tough times for the housing and mortgage markets, for families trying to buy homes or struggling to stay in them, and for companies and employees that serve these economically important industries. Many investors have fled the mortgage market, drying up the flow of financing -- the liquidity -- for subprime, jumbo and even affordable conventional, conforming loans.

 

 

While most of the prime, conventional, conforming market working and remains relatively liquid, borrowers who don't qualify for or can't afford a standard long-term, fixed-rate prime loan have dwindling options.

 

 

Congress chartered Fannie Mae to "provide stability in the secondary market for residential mortgages;" to "respond appropriately to the private capital market;" to "provide ongoing assistance to the secondary market for residential mortgages by increasing the liquidity of mortgage investments and improving the distribution of investment capital available for residential mortgage financing;" and to "promote access to mortgage credit throughout the Nation."

 

 

We want to do our part to help provide stability and liquidity across the mortgage market. For example, since the beginning of the year we have helped lenders refinance about $7.5 billion of subprime ARMs into prime loans through our HomeStay™ initiative, helping more than 40,000 homeowners avoid subprime payment shock.

 

 

We'd like to do more to fulfill our mission to provide liquidity, stability and affordability. One of our primary tools, since our creation in 1938, has been buying and holding mortgages and mortgage-backed securities in our portfolio. However, our portfolio has been capped since May of 2006 under a consent agreement with our regulator, OFHEO, while we fixed our accounting and internal control weaknesses and caught up on our financial reports with the SEC. OFHEO has provided some limited flexibility. We believe having the flexibility to increase our portfolio by at least 10 percent would make a meaningful difference.

 

 

Some have suggested an increase in the GSE conforming loan limit above the current $417,000 to address liquidity issues beyond the conforming market. We leave it to Congress to determine our proper loan limit, but I want to be clear -- we would support such an increase, and we would be prepared to act.

 

 

Looking ahead, I am confident we can get through this critical chapter for housing, and I believe the best years for housing are still ahead. The mortgage market is returning to its senses, with products, prices, underwriting and investing that serve homebuyers for the long run. There are important roles many institutions can play in this crisis. More sources of liquidity should be tapped. Transparency and clear disclosures can be put into place for both consumers and investors. On that note, the Mortgage Bankers Association's "Project Clarity" is a laudable effort. And a return to credit fundamentals seems to be underway.

 

 

The need for safe, affordable mortgage lending will only grow with this growing nation. Affordable lending will drive the growth of homeownership in this country, if we can minimize the long-term impact of the current crisis.
Dan Mudd's Congressional Testimony

 

 

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October 09, 2007

The LooP

The "LOOP" sponsored by The Harris Company, Real Estate Appraisers and Consultants, A Real Estate Directory and Custom Search Engine, CSE, 310.337.1973

Search engine details  [Edit this search engine]

Get In The "LOOP," a Real Estate Directory and Custom Search Engine 

Real Estate and Appraisal - Appraiser Information, Research and Services, for the Novice and Expert Alike. Built by Real Estate Experts:
The Harris Company REA/C
5780 West Centinela Avenue, 1-408
Los Angeles, CA. 90045
310.337.1973

The "LOOP" search engine: http://www.google.com/coop/cse?cx=000747579154309164948%3Annakvu69iqy

website:
http://www.harriscompanyrec.com

email:
curtis_harris@harriscompanyrec.com

appraisal blog
http://www.harriscompanyrec.com/blog/

Google's mission is to organize the world's information and make it universally accessible and useful. The objective of our website/search engine is to organize the world's real estate information and make it universally accessible and useful. Sometimes it pays to play "Follow the Leader." (Keywords: "Real Estate Search Engine" "Real Estate Custom Search Engine" "Real Estate CSE" "CSE" "Appraiser")

"Instead of fighting the explosive growth of the Internet, the Open Directory (and the Harris Company REA/C-CSE) provides the means for the Internet to organize itself.  As the Internet grows, so do the number of net-citizens.  These citizens can each organize a small portion of the web and present it to the rest of the population, culling out the bad and useless and keeping only the best content."  From: DMOZ-Open Directory Project.

We have some big shoes to fill, but it can be done with your help.  To get listed or to contribute please contact Curtis D. Harris, BS, CGREA, REB @ harris_curtis@sbcglobal.net, If you are already "In the Loop" please remember to add the CSE code to your website (Add this search engine to your blog or webpage ») IT'S FREE! Appraisers, Attorneys, Brokers, Consultants, Contractors, and Lenders are All Welcome. 

If you are a small firm, and do not have a website, don't feel left out, for a small fee ($25.00 per mo.) we can create a "Someone You Should Know Page" on our Harris Company REA/C website, which can be just as effective as a full blown website. 

Our website is currently ranked #4 on Google and #2 on Yahoo for Keywords: "Commercial Appraiser," and "Commercial Appraisal."  We are also ranked high for "Real Estate Consultant, CA," "Forensic Appraiser," and many others.  The last time I checked we were the highest ranked Real Estate Appraisal and Consulting Firm on the web.  In the very near future we will be the highest ranked Real Estate Custom Search Engine on the web.  Don't wait, GET LISTED!

Business happens when you're in the "LOOP."

The Harris Company, Real Estate Appraisers and Consultants Real Estate Custom Search Engine, CSE, 310.337.1973 searches 101 sites, including: http://www.dca.ca.gov/, http://www.aicpa.org/, http://www.ccim.com/about/ccim.html, http://www.martinappraisals.com/index.html, http://harriscompanyrec.com/blog/

Last updated: 2 days ago

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