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June 30, 2010

NeighborWorks America Announces $35 Million in Grants to Housing Nonprofits
NeighborWorks America is awarding $35 million to 117 NeighborWorks organizations and two NeighborWorks-affiliated capital corporations — Community Housing Capital and NeighborWorks Capital — to rehabilitate or finance the rehabilitation of affordable housing nationwide, including smaller and rural communities with affordable housing needs.

The Capital Funding for the Rehabilitation of Affordable Housing (CFRAH) grants will enable local NeighborWorks organizations to develop or continue to fund:

  • Revolving loan funds for rehabilitation lending for owner-occupied property;
  • Rehab of residential rental housing currently owned by local NeighborWorks organizations;
  • Rehab of residential rental housing that is newly acquired or will be acquired by local NeighborWorks organizations;
  • Rehab of single family homes that will be acquired or have been recently acquired by local NeighborWorks organizations and will be sold to homeowners.

More information on these awards is in the NeighborWorks newsroom.

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June 29, 2010

Submeters Save Energy, According to NYC Demonstration

Training is Free of Charge

Training is Free of Charge




Los Angeles Superior Court

Stanley Mosk Courthouse

111 North Hill Street, Room 233 (2nd Floor)

Los Angeles, CA 90012-3014

Dates: Mondays - July 12, 2010

August 2, 2010

September 13, 2010

October 4, 2010

November 1, 2010 and

December 6, 2010


Time: 1:00 p.m. – 4:30 p.m.

You will become familiar with:

What your duties are as a Conservator.

How to care for your Conservatee.

How to prepare for accounting.

How to access valuable resources.



Please remember to bring with you to class your copy of the Handbook for Conservators. Otherwise PRIOR TO CLASS -- it is available to download at California Courts Web site: www.courtinfo.ca.gov or one is available "to borrow" in class.


These classes are held on a "walk-in basis" and there is no need to RSVP.
For any questions and/or further information please contact Susy Wong, Probate Secretary:
Email: swong@lasuperiorcourt.org Telephone: 213-974-5501


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Superior Court of California

County of Los Angeles

Ch. 10 Pg. 32



Acct Account

Admin Administrator

Admin CTA Administrator with Will Annexed

Aff Affidavit/Prob C 8100 Ntc

A.O. Attorney Order

Apprl Appraisal

ARA Account, Report, Acts

Auth Authority/Authorize

Bene Beneficiary

Cite Citation

Cod Codicil

Consee Conservatee

Consr Conservator

Cont Continue

C/P Community property

CRC California Rules of Court, Title 7 [Probate]

DCFS Department of Children and Family Services

D/D Date of Death

Decd Decedent/deceased

DHS Department of Health Services

DMH Department of Mental Health

Dist Distribution

DOB Date of Birth

DSS Department of Social Services

DWOP Deny without prejudice

Ex Extraordinary

Extr Executor

FBO For Benefit of

FMV Fair market value

GAL Guardian ad Litem

Gdn Guardian

Holo Holographic

IAEA Independent Administration of Estates Act

I&A Inventory & Appraisal

ITF In Trust For

J/T Joint Tenancy

JTD Judge To Determine

Juris Jurisdiction

LASC Ch 10 Chapter 10 of Los Angeles Superior Court Rules

Ltd Limited

Superior Court of California

County of Los Angeles

Ch. 10 Pg. 33

Ltrs Letters

M.O Minute Order

Ntc Notice

NTE Not To Exceed

Objs Objections

Objr Objector

O/C Off Calendar

OTR Ordered To Return

o/w Otherwise

PA Public Administrator

P&E Person & Estate

Pers Rep Personal Representative

Petnr Petitioner

Prob C Probate Code

P/P Personal property

Pub Publication

PVP Probate Volunteer Panel Attorney

R/A Request of Attorney

Reapprl Reappraisal

RFA Recommended for Approval

R/P Real property

S/P Separate Property

Spec Admin Special Administrator

Spec Ntc/copy Special Notice & Copy

Stat Statutory

Succ Successor

Supp req Supplement required

Tee Trustee

Temp Temporary

Tr Trust

T/T Take Testimony

VA Veteran’s Administration

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June 28, 2010

GRA10764 S.L.C.

AMENDMENT NO.llll Calendar No.lll

Purpose: To improve oversight of appraisers.


S. 3217

To promote the financial stability of the United States by

improving accountability and transparency in the financial

system, to end ‘‘too big to fail’’, to protect the

American taxpayer by ending bailouts, to protect consumers

from abusive financial services practices, and

for other purposes.

Referred to the Committee on llllllllll and

ordered to be printed

Ordered to lie on the table and to be printed

AMENDMENT intended to be proposed by lllllll


1 On page 1522, between lines 6 and 7, insert the fol2


3 Subtitle I—Appraisal Activities


5 (a) IN GENERAL.—Chapter 2 of the Truth in Lend6

ing Act (15 U.S.C. 1631 et seq.) is amended by inserting

7 after 129B (as added by this Act) the following new sec8



GRA10764 S.L.C.


2 ‘‘(a) IN GENERAL.—A creditor may not extend credit

3 in the form of a subprime mortgage to any consumer with4

out first obtaining a written appraisal of the property to

5 be mortgaged prepared in accordance with the require6

ments of this section.


8 ‘‘(1) PHYSICAL PROPERTY VISIT.—An appraisal

9 of property to be secured by a subprime mortgage

10 does not meet the requirement of this section unless

11 it is performed by a qualified appraiser who con12

ducts a physical property visit of the interior of the

13 mortgaged property.



16 ‘‘(A) IN GENERAL.—If the purpose of a

17 subprime mortgage is to finance the purchase

18 or acquisition of the mortgaged property from

19 a person within 180 days of the purchase or ac20

quisition of such property by that person at a

21 price that was lower than the current sale price

22 of the property, the creditor shall obtain a sec23

ond appraisal from a different qualified ap24

praiser. The second appraisal shall include an

25 analysis of the difference in sale prices, changes

26 in market conditions, and any improvements


GRA10764 S.L.C.

1 made to the property between the date of the

2 previous sale and the current sale.

3 ‘‘(B) NO COST TO APPLICANT.—The cost

4 of any second appraisal required under sub5

paragraph (A) may not be charged to the appli6



8 purposes of this section, the term ‘qualified ap9

praiser’ means a person who—

10 ‘‘(A) is, at a minimum, certified or licensed

11 by the State in which the property to be ap12

praised is located; and

13 ‘‘(B) performs each appraisal in con14

formity with the Uniform Standards of Profes15

sional Appraisal Practice and title XI of the Fi16

nancial Institutions Reform, Recovery, and En17

forcement Act of 1989, and the regulations pre18

scribed under such title, as in effect on the date

19 of the appraisal.

20 ‘‘(c) FREE COPY OF APPRAISAL.—A creditor shall

21 provide 1 copy of each appraisal conducted in accordance

22 with this section in connection with a subprime mortgage

23 to the applicant without charge, and at least 3 days prior

24 to the transaction closing date.



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Fuzz Buzz

Join Date: Apr 2009
State: California
Professional Status: Gvmt Agency, FNMA, HUD, VA etc.
Posts: 5

smut shop's negative impact on surrounding property values

Hello, appraisers. This is my second thread commenced on this forum. I am an in-house civil attorney for the County of Fresno, California. I have been assigned the prosecution of an adult business for violation of County ordinance, which prohibits locat1on of a smut shop within X distance of residences, churces, and schools. Another attorney in my office has handled the litigation to this point; he went to court to get a preliminary injunction against the smut peddler, and the court denied it. The court reasoned that the County would need to show -- but had not established -- actual harm to the surrounding community. Trial is coming up, so we have another bite at the apple -- but apparently, this judge will still want us to establish actual harm at the trial as well.

I was thinking that one way to make that showing would be to present evidence that the establishment of a smut shop has a negative impact on surrounding property values. There are residences within a quarter mile. I think that information to be derived from comparable sales is not going to be of much assistance, unfortunately. So my question, in the absence of help from comparable sales, is whether you are aware of any studies or well-regarded written expert opinions taking the position that adult business establishments negatively influence surrounding property values? Or do you have any other reason to believe that smut shops have such a negative influence, or any other method to establish the same?



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Two Easements, Two Outcomes


Two Easements, Two Outcomes



The Tax Court decided two cases involving conservation easements with mixed results for the taxpayers. In one

case, the court held that the taxpayer was entitled to a charitable deduction for easements on two properties,

since the easements were exclusively for conservation purposes. According to the court, the easements

preserved a certified historic structure and were granted in perpetuity; however, the court, based on expert

testimony, reduced the amounts of the deductions. In the other case, the court denied a charitable deduction for

an easement of unused development rights above a certified historic structure because the easement was not

exclusively for conservation purposes, as it did not preserve a historically important land area or a certified historic


A charitable deduction is allowed under IRC § 170(h) for a qualified conservation easement, which is defined as a

contribution of a qualified real property interest to a qualified organization exclusively for conservation purposes.

Qualified real property interests include a legally enforceable restriction (granted in perpetuity) on the use of the

real property that prevents uses of the retained interest that are inconsistent with the conservation purposes of the

contribution. A conservation purpose must be protected in perpetuity and can include the preservation of a

historically important land area or a certified historic structure (section 170(h)(4)(A)(iv)). If the property is subject

to a mortgage, the mortgagee must subordinate its rights in the property to the right of the qualified organization to

enforce the conservation purpose in perpetuity. If a contribution of property exceeds $5,000, the strict

substantiation requirements of Treas. Reg. § 1.170A-13(c) must be satisfied, which include specific requirements

for any appraisal used to determine the value of the contribution. To determine the value of an easement,

taxpayers have often compared the value of the property before and after the easement was granted.

Dorothy Simmons owned two row houses in Washington, D.C., subject to the Historic Preservation Act of 1978. In

2003 Simmons granted a façade easement on one property to the L’Enfant Trust, a District of Columbia nonprofit

corporation that holds conservation easements in the D.C. area. In 2004, she granted a similar easement on a

second property to L’Enfant. The easement deeds prohibited Simmons from making any material changes to the

façade of either property without L’Enfant’s consent and required any work done on the buildings to comply with

all federal, state and local laws and regulations. Simmons deducted as charitable contributions $162,500 and

$93,000, respectively, on her 2003 and 2004 tax returns for the easements. The IRS disallowed both deductions,

arguing the easements had no conservation purpose, since the deeds allowed L’Enfant to consent to changes in

the façades and the mortgagees of the properties had not subordinated in perpetuity their rights to the rights of

L’Enfant. The Service also argued that even if the easements were valid, no deduction should be allowed, since

the appraisals were not qualified appraisals and were not credible.

The court held that the easements did serve a conservation purpose even though L’Enfant had the right to

consent to changes in the façades. The court noted that Treas. Reg. § 1.170A-14(d)(5) permits future

development as long as it conforms to federal, state and local standards for construction or rehabilitation within a

registered historical district, and these easements required such compliance. The court also noted both deeds

contained language acknowledging the lenders’ subordination of their rights to L’Enfant or any successors. The

court determined that Simmons had complied with the substantiation requirements and that the grant of the

easement did reduce the value of the properties. However, it reduced the amount of the deductions to $56,250 for

2003 and $42,250 for 2004. The court accepted Simmons’ expert’s valuation of the properties before the

easements but, based on all the expert testimony presented, used higher post-easement valuations.

Two Easements, Two Outcomes Page 1 of 2

http://www.journalofaccountancy.com/Issues/2009/Dec/Easements.htm?action=print 6/28/2010

In the other case, J. Maurice Herman owned an apartment building on Fifth Avenue in New York in the Upper

East Side Historic District. In August 1998, he transferred the property to his wholly owned LLC, Windsor Plaza,

which later in 1998 transferred back to Herman the unused development rights to the property, including the right

to add floors to the building. In 2003, the apartment building was classified as a certified historic structure. Later

that year, Herman contributed an easement to the National Architectural Trust Inc. restricting the development of

about half of the unused development rights over the existing property. On his2003 federal tax return, Herman

claimed a charitable contribution deduction of $21,850,000 for the easement. The IRS disallowed the deduction

on the grounds the easement was not exclusively for conservation purposes because it did not preserve a

historically important land area or a certified historic structure.

The court held there was no conservation purpose, because the agreement creating the easement restricted the

development of only a portion of the unused development rights above the apartment building. Nothing in the

agreement prevented the alteration or demolition of that building by Herman, Windsor Plaza or any future owners.

The court also rejected Herman’s claim that the easement preserved a historically important land area, because

the underlying land could be a historically important land area only because of its proximity and relation to the

apartment building, a certified historic structure. Since the easement did not prevent the building’s alteration or

demolition, it could not protect the historical significance of the land beneath it, whose sole function is the

building’s foundation. The court left open the possibility that in some other factual situation a restriction of unused

air or development rights might be for a conservation purpose.

Dorothy Jean Simmons v. Commissioner, TC Memo 2009-208

J. Maurice Herman v. Commissioner, TC Memo 2009-205

By Charles J. Reichert, CPA, professor of accounting, University of Wisconsin–Superior.

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June 27, 2010

Welcome to CARETS Commercial

CARETS/Property Centric MLS California Real Estate Technology Services

A property-centric MLS means that the database that underlies your MLS system is structured and patterned upon an inventory of all the commercial parcels and buildings in your region. This is how ePropertyData builds and structures its MLS systems using technology that has been developed over the past 11 years. A broker's ability to access analytics and communicate marketbased sales and lease history to help his or her client make a buy/lease decision is critical. In a changing market, having accurate and detailed information at your fingertips can make the difference in winning the client or not...and ultimately, getting the deal done.

Building a property-centric database and maintaining it is critical to the efficacy of a MLS system. The quality of transaction information that is compiled and stored in connection with each parcel/building varies widely among property-centric systems. Technology, quality assurance process and financial commitment are important elements in making sure that the system provides its users with accurate and timely transaction information.

Without a property-centric system, tracking sale and lease transaction history is nearly impossible. Without transaction history most of the desired analytics that illustrate market and sub-market occupancy and availability are not possible. The alternative to a property-centric system is a sale and lease listing data system and although useful, it is not comprehensive.

Public Side of MLS System—Places CARETS on the Map:
  1. Newly designed website for CARETS with Text & Map Search capabilities
  2. Searchable For Sale/Lease and Business Opportunity listings
  3. Detail listing pages for all search types with links to maps, demographics information, aerial views, photos and flyers/pdf files
  4. Featured property display
  5. Searchable member directory
  6. Event Calendar, including "featured" event functionality
  7. Your MLS News section Custom static content pages based on the needs of each MLS (such as an affiliate page, a support page, a contact page, a membership benefits page, an "about our MLS" page, etc.)
Private Side of MLS System—Exclusive to CARETS Members:
  1. Listing management for active and off-market listings
  2. Commercial Market Analysis and reports
  3. Load Business Opportunities
  4. Enter your listings once and use often
  5. Ability to load additional floor plans, marketing flyers, photos to listings
  6. Enhanced Listing Package on CommercialSource
  7. Advanced listing search capabilities, including map searches and saved searches
  8. Reporting functionality including access to our report catalogue: can send reports to your browser, to an email address or to a PDF file
  9. Reports include: Listing Detail/Office Inventory/Agent Inventory/Multi-Property Map/Property Showing
  10. Custom downloads of search results to Excel
  11. Daily Hot-Sheet notifications via email based on member's custom criteria
  12. Searchable building directory
  13. Searchable commercial property transaction data for sale or for lease
  14. Automatic reminder notification via email of approaching listing expiration dates
  15. Personal profiles for each member, including photo, specialty, market areas serviced and custom text for display in member directory searches
  16. Online address book Links to compiled research reports put together by the MLS staff
  17. User dashboard where you can view your listings, traffic and other metrics to monitor your marketing efforts and produce reports that can be provided to clients.
  18. Custom static content pages based on the needs of each MLS (such as links to public records, a training page, MLS bylaws/rules or a Forms page with downloadable forms applicable to that MLS)

Let's work together

For years we've taken complex technology and simplified it for the commercial real estate professional.

ePropertyData™ is an industry-leading, Commercial Information Exchange "CIE" solutions provider that is owned by the National Association of Realtors® "NAR"—on behalf of the commercial real estate industry. Since 1998, our company has provided associations with robust CIE solutions that are custom designed to meet the latest media-rich, data-driven demands of the industry. We are a broker and client-centric group of technology and real estate professionals dedicated to providing commercial associations and their members the highest quality products and services.

  1. All members will have access to a fully dedicated commercial information exchange system.
  2. A property centric system that sets the stage for growth and expansion of the system if and when needed.
  3. Fully integrated system with a national listings website owned and sanctioned by NAR that is growing every day.
  4. We are unique in offering you a system where you own and control your listing data..
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June 25, 2010

Swing LOW sweet TIMOTHY (LOWE,) MAI, appraisal institute

Posted by cochise on June 25, 2010 at 19:12:09:  http://www.hwforums.com/2191/messages/746.html

Swing LOW sweet TIMOTHY (LOWE,) MAI, appraisal institute

timothy lowe
As Principal with Waronzof, Mr. Lowe is responsible for
directing real estate consulting and valuation engagements
including strategy and best practice analyses, market and
highest & best use studies, market value and fair compensation
appraisals; acquisition due diligence; economic feasibility
analysis; and advanced financial analyses for large-scale project
development. Mr. Lowe’s practice includes emphasis in
litigation, investment analysis and counseling. His experience
includes appraisal and consulting engagements across the
continental United States, Alaska and Hawaii, Canada and
Argentina, and includes such notable properties and projects as
the West Edmonton Mall (Edmonton), South Coast Plaza
Shopping Center (Costa Mesa), AT&T Park (home to the San
Francisco Giants), Belmont Learning Center (Los Angeles), the
Kapolei City development in Hawaii, the Tren de la Costa
project in Buenos Aires, a 5 million acre natural resource
portfolio in Washington State, Ambassador College (Pasadena)
redevelopment, Two Wall Street (New York), Boeing Field
(Seattle), the Skywalker Ranch facility of director George Lucas
(San Francisco), the three million square foot Air Force Plant #19
(San Diego), the 40 mile long Peninsula Commute Rail Corridor
(San Francisco to San Jose), and the 4,000 acre Girdwood
Development & Disposal Plan project (Anchorage). Mr. Lowe is
a member of the Green Building Finance Consortium, an
industry group working to establish underwriting and valuation
guidelines for sustainable buildings.
Prior to founding Waronzof, Mr. Lowe was a Director in the Real
Estate Consulting and Litigation Practice with Deloitte & Touche
in Los Angeles, and earlier a Vice President and Chief Appraiser
with Arthur Gimmy International in San Francisco. He began
his career as an appraiser and consultant in Anchorage. Mr.
Lowe has been accepted as an expert witness in state and federal
courts in the areas of real estate and going concern valuation,
project feasibility and plan feasibility. Mr. Lowe is a designated
member of the Appraisal Institute (MAI), a member of The
Counselors of Real Estate (CRE) and a Fellow of the Royal
Institute of Chartered Surveyors (FRICS). Additionally Mr.
Lowe is an associate member of the Urban Land Institute and a
member of Lambda Alpha, the Land Economics Society."


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The Harris Company, Residential Appraiser-Appraisal Blog, 310.337.1973, Southern California, harris_curtis@sbcglobal.net


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The Harris Company, Residential Appraiser-Appraisal Blog, 310.337.1973, Southern California, harris_curtis@sbcglobal.net


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The Harris Company, Residential Appraiser-Appraisal Blog, 310.337.1973, Southern California, harris_curtis@sbcglobal.net


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Commercial Market May Have Hit Bottom

Commercial Market May Have Hit Bottom
Commercial real estate may finally be climbing up off the mat, with both sales and values increasing in April.

The Moody’s/REAL Commercial Property Price Index rose 1.7 percent from March, Moody’s reported Monday.

Commercial real estate declined 41 percent from its peak in October 2007, hitting a low in October 2009. Property sales rose 50 percent in the first quarter from the same period a year ago to $15.4 billion, according to Real Capital Analytics.

Source: The Wall Street Journal, Brian Louis (06/21/2010)
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June 23, 2010


http://www.harriscompanyrec.com/compavgeraging.wpd  PANSINI CUSTOM DESIGN ASSOCIATES,






NEWTON, Construction Code

Official of the City of Ocean


The narrow issue that we address on this appeal is whether the use of averaging of comparable sales by the trial judge in fixing the fair market value of the real property in issue represents an appropriate evaluation methodology and whether it fulfills a judge's fact-finding responsibility. Here, the trial judge, after excluding the high and low comparable sales presented by the expert witnesses in competing appraisals, averaged the values of the remaining comparables to arrive at a fair market value. We disapprove of the practice of averaging and conclude that it does not represent a reasoned and considered valuation technique. We reverse and remand.


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Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. III

Posted: 22 Jun 2010 07:05 PM PDT

Continued from Part II

The court was not much easier on the City's attorney, even though one might think that the hard time they gave the property owners' counsel indicated they were more sympathetic to the City's arguments.

Right off the bat, Judge Callahan asked Schwartz whether he "conceded" [appellate advocate alarm bells going off] that there can be a facial Penn Central taking. This seemed to be a response to Judge Rymer's questions to the property owners' lawyers of whether "there is such an animal." If Schwartz were to concede it, issue gone. He did concede it, but only barely. "Yes," he answered, there can be such a thing, but it is difficult to imagine it, since the Penn Central test is "an ad hoc, factual inquiry." Judge Callahan asked whether the Penn Central factors "bleed over to the merits" of a facial challenge, and whether the court looks at them different when it is a facial challenge.

Schwartz -- as he would do many times during his 30 minutes -- referred to the Supreme Court's 2005 Lingle case, and argued that in that case, the Court held that a court's role is to determine whether a regulation is so onerous that it is the "functional equivalent" of an exercise of the eminent domain power. That elicited a question from Judge Bea about whether there can be a partial taking, and whether Schwartz was arguing that a regulation must take 100% of the use of property, or nearly that amount. When Schwartz answered affirmatively, Judge Kleinfeld asked whether that meant that the government could just take an easement without paying for it.

Schwartz responded that a taking of an easement would be a physical takings, covered by other rules, but Kleinfeld questioned that response. What about an easement for energy transmission lines -- that would not be (just) a physical take since it would also impact the property owner's use of its land? It sounds like, he remarked, that you are arguing that Lingle overruled Penn Central.

Then, in one of those memorable appellate argument moments, Judge Kleinfeld stated to Schwartz that "I would have thought that you'd be more interested in the limitations issue." Rather than responding directly, Schwartz again returned to Lingle, arguing that for a regulation to work a taking under Penn Central, it must be the "functional equivalent" of eminent domain. The economic impact must be "extreme," he argued, to which Judge Kleinfeld responded "this is extreme," and noted that mobile homes that should sell for tens of thousands of dollars instead are sold for hundreds of thousands, because of the rent control ordinance. "No," Schwartz responded, "the ordinance has no impact."

Judge Clifton circled back to Judge Kleinfeld's comment about the statute of limitations issue. "Why are you taking on the harder task" of defending the ordinance on the merits when you have the limitations issue, he asked. Judge Bea jumped in: your test is that in order to be a facial taking, an ordinance must expressly say "this is a facial taking." Judge Clifton also asked about the "no impact" statement, asking whether an 80% diminution of value would be "extreme enough."

Judge Reinhardt threw the first of his several softball "questions" to Schwartz, stating that he "gathered you are making this argument [the merits, and not the statute of limitations argument] because Judge Kleinfeld asked you." Judge Ikuta followed up, noting that the statue of limitations issue was the "most troubling." The property owners are claiming a taking at the time of enactment of the rent control ordinance in 2002; what is the "best case," she asked, for whether a different government (City, as opposed to County) adopting a new ordinance. In other words, "when did the cause of action accrue?" Schwartz answered that the plaintiffs assert it was in 2002. Judge Ikuta asked "so why not accrue at that point?" to which Schwartz responded that the City was not asserting the statute of limitations, but was arguing no taking on the merits. Judge Kleinfeld could not resist interjecting "so you don't want to win on the statue of limitations theory," which elicited the biggest audience laugh of the day. 

Judge Rymer focused on the same issue she started off the day with. She asked whether the "distinct" investment-backed expectations referred to in Penn Central meant that the takings inquiry always focused on the plaintiff's property interest. Judge Callahan interjected to remind the panel that Schwartz had already conceded that there was such a claim. Chief Judge Kozinski then turned it on, asking Schwartz to "stretch your imagination" and articulate a situation in which there would be such a claim. Start with the extreme and work your way back: would it be if a government regulation required a building owner to leave her property vacant? Schwartz answered that the court would still apply the Penn Central factors, and if it turns out the regulations prohibited "profitable" use, it "could very well be" a facial Penn Central taking. "'Could very well be' is as close as you're going to get," Kozinski replied, and even Judge Kleinfeld posing a hypothetical about a regulation prohibiting all development within one mile of a river could not get Schwartz to concede more. "What would it take to make you say 'yes?'" Chief Judge Kozinski asked, to which Judge Callahan remarked "that's a little like 'we're here from the government, and we're here to help!'"

This exchange seemed to trigger Judge Kozinski's focus on whom the transfer of value benefitted. He noted that in Penn Central, the prohibition on building benefited the public, and not (as in this case) identifiable others. Here, he argued, the regulation took the value from the park owners and transferred it to the mobile home tenants. [Barista's note: this sounds like the prohibited "A to B" private taking which even after Kelo survives as a Fifth Amendment claim.] Schwartz didn't seem quite to know how to answer this, and Judge Reinhard quickly came to his rescue, asking whether the plaintiffs must concede the public nature of the the alleged taking, and whether there were any cases in which a private party stood to benefit. Don't all rent control ordinances benefit private parties, he asked. Indeed, don't minimum wage laws transfer value from employer to employee?

Schwartz referred to Pennell (a non-mobile home rent control case). Chief Judge Kozinski wasn't quite satisfied. This isn't like non-mobile home rent control; can't a tenant sell his "piece of tin" for much more than it's truly worth? When Schwartz responded that a California statute left intact vacancy control, Kozinski cut him off with "the real answer is 'no,' Pennell is not applicable." Judge Kleinfeld also noted that the economic impact of the regulations here were "cataclysmic," and disputed Schwartz's statement that the ordinance had "no" economic impact, not an extreme one. In his final answer before his time expired, Schwartz admitted that at the imposition of the County rent control ordinance in 1985, park owners lost value.

The property owners' counsel returned for a short rebuttal, and elicited a huge laugh in the courtroom when he responded to Chief Judge Kozinski's comment that although he had approximately two minutes, he could get "into infinite trouble" in that time. Coldron quipped that his time was not "infinite," but was "substantial" (referring back to the "substantial gap" in time between the expiration of the County's rent control ordinance, and the imposition of the City's). He concluded by pointing out that the "economic impact" factor is but one of three Penn Central factors, and that none of them is dispositive.

The case was submitted, and the court adjourned for the day.

Some stray thoughts:

First, even though the judges were at times pretty brutal on the advocates, I appreciated the fact that before the hearing commenced, Judge Smith (sans robe) walked in the courtroom and introduced himself to arguing counsel. "In Idaho, we do that," he said, "but they don't do that here." A nice touch.

Second, it seems that the tests for regulatory takings are confusing, even to federal appellate judges; at times, they made statements reflecting a misunderstanding of the current state of the law. Not surprising, given that the Supreme Court has not been able to settle on hard core doctrine, and even now -- some 80+ years since the modern recognition of the doctrine in Pennsylvania Coal v. Mahon -- we're still arguing about whether a property owner has a cause of action.

Finally, its impressive to see quality advocates in action. Thirty minutes per side in a toe-to-toe with eleven federal judges is something that can shake even the most experienced advocate. Both counsel handled themselves with aplomb and professionalism.

Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. II

Posted: 22 Jun 2010 05:57 PM PDT

Continued from Part I

Coldron seemed to sense that the court was in danger of veering off track and buying into the argument in the amicus brief filed by the League of California Cities and California State Association of Counties in support of the city about the claim being time-barred. Judge Clifton returned to his initial barrage of questions and asked whether the ordinance was the same after the City incorporated, and whether the park owners were seeking a "windfall" from that event. Recall that Goleta was originally not an incorporated city, so these parks were subject to the County's mobile home rent control ordinance. When the City incorporated, the County ordinances continued in effect for a time, and after a gap (another issue in contention), the new City of Goleta adopted its own mobile home rent control ordinance.

Coldron responded to Judge Clifton's question by noting that "there is no expiration on Constitutional rights," a quote from the U.S. Supreme Court's Palazzolo case. Judge Clifton was not pleased, and snapped "that's not an answer." "You must acknowledge facts," he stated, "answer the question: is there anything different between the County and the City rent control regulations." Coldron answered "no." Judge Rymer jumped back in and asked whether there was any different in economic effect on the face of the ordinance. Coldron responded that there was no difference. 

Judge Kleinfeld, who dissented from the panel opinion, posed a hypothetical that went to what was being referred to as the "statute of limitations" issue (more correctly, it is a question of "property" and "notice" and whether a purchaser of property who buys after a regulatory scheme is in place may bring a claim that the regulation is a taking). Let's say the state builds a road in the 1970's that encroaches on my property, he asked. I do nothing since my property is not worth too much, and I don't want to pay my lawyer to bring an inverse condemnation claim. Time passes and I sell it to you, but in the meantime, the property has become quite valuable, and it is worth your time to pay your lawyer to bring an inverse condemnation claim against the state. "It seems quite clear," Judge Kleinfeld stated, "that the seller could have sued for a taking many years ago, but didn't. I don't see where this case is any different." The unstated part of his hypothetical was that having let the time pass without suing, the seller did not transfer that right to the buyer.

Coldron agreed with the first part (that the buyer could not sue), but took issue with the second, arguing that the hypothetical was different than the case before the court. [Barista's note: this is somewhat dangerous territory for an appellate advocate - usually when judges ask hypotheticals, they want them answered and can get testy if you respond "well, judge, that's not our case." I've heard judges snap back "of course it's not this case, it's a hypothetical!"] However, Coldron avoided that, and his answer was quite effective; he stated that for Judge Kleinfeld's hypothetical to truly be like the present case, the state would have to remove the encroachment for a time, and then attempt to put it back after the buyer purchased the land (see paragraph 1 above).

Next, Judge Kleinfeld and Coldron got into an exchange about the length of the gap. Judge Kleinfeld asked whether it was "a couple of hours" between the County's rent control ordinance expiring, and the new City's rent control ordinance becoming effective. Coldron asserted that was not true, that it was not, as argued by the City, a "moment in time," and that the gap was actually "significant" since it was minimum two months, and up to four. Kleinfeld asked whether the County's ordinances were readopted "as a matter of law," to which Coldron responded that they were, but that there was still a gap where the mobile home parks were not subject to any rent control ordinances at all. Besides, he argued, the City could have not adopted a mobile home rent control ordinance at all (as his clients had urged the City), so there was nothing in the gap period that would suggest their property continued to be the subject of these regulations.

Judges Smith and Clifton sought clarification. Judge Smith asked whether there was any point in time where the mobile home parks were not subject to some kind of rent control ordinance. Coldron answered that in this case, the City stipulated that there was a gap, and that the stipulation controls. Judge Clifton asked whether during that time, the mobile home park owners went up on the rent (since there was no rent control ordinance in effect). Coldron replied that no, there was no increase because state law prohibited it.

Judge Kleinfeld reentered the fray. "I don't see how Palazzolo helps," he stated, and he attempted to distinguish the facts of that case. Palazzolo involved a property owner who didn't keep up on the corporate formalities, he argued. Thus, the Supreme Court held that he was entitled to bring the claim, even though it was technically a different entity that owned the property when the cause of action accrued. That is a different case than here, where the mobile home park was purchased by an entirely different owner. When Coldron again raised the "no expiration date on Constitutional rights" quote, Kleinfeld responded that the court "enjoys rhetorical flourishes," but that facts would be more helpful.

In the last exchange before the City's argument, Judges Kleinfeld and Smith asked Coldron about the record. And in one of those moments that all appellate advocates dread, they asked not just generally about the record, but for specific page citations. Judge Smith asked whether there was anything in the record to support the idea that the property was worth more before the City ordinance. Coldron responded that Dr. Quigley had testified that it was, and that his testimony went unchallenged.

Judge Smith: What part of Quigley's testimony?

Coldron: Where he testified to a 90% drop in value.

Judge Smith: That's general.

Coldron: Quigley's testimony was not rebutted, so it must be accepted.

Judge Kleinfeld: What page of his testimony? I have it here in front of me. Where?

Coldron: In the September 6 order of the court, the court found this testimony was not rebutted. But I can't tell the page number.

Chief Judge Kozinski: It must not be important if you can't tell where it is.

[Barista's note: It is an old adage of appellate lawyers that they must "know the record, inside and out." Yet, it's hard to fault Coldron (asking for a page number in a trial record is awfully nitpicky) and it seemed a bit unfair of the court to harp on him about this. This case has not been a straightforward motion, trial, and appeal. Because of the maze of procedural hurdles erected in front of takings claims by the U.S. Supreme Court and the California courts, this litigation has stretched over years and has involved several jurisdictions. Trying to intuit what one judge out of eleven may consider important during your thirty minute argument could be asking for the advocate to go from well-prepared to superhuman.]

Next, the City's argument in Part III.

This posting includes an audio/video/photo media file: Download Now

Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. I

Posted: 22 Jun 2010 04:43 PM PDT

2010-06-22 12.55.09 Even in the rarefied, academic atmosphere of an appellate court, an advocate must sometimes have a thick skin. Today's Ninth Circuit en banc oral arguments in the rent control takings case, Guggenheim v. City of Goleta, was one where the two lawyers who argued the case certainly came away with a few callouses. 

Guggenheim is the appeal from an unsuccessful challenge to the City of Goleta's mobile home rent control ordinance. The district court ruled against the mobile home park owners who asserted the ordinance worked a regulatory taking of their property.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge Ninth Circuit panel reversed, however, and held 2-1 that the challenge was ripe under Williamson County, and ruled the ordinance was a facial taking by applying the three-part Penn Central test. The court remanded the case to the district court for a calculation of compensation owed to the property owners. On March 12, 2010, the court ordered en banc review.

Today's argument was an en banc panel comprising eleven active Ninth Circuit judges (the circuit is so large that "en banc" in the Ninth Circuit doesn't truly mean en banc, but means a panel of eleven active judges). Chief Judge Kozinski was seated front-and-center, and the other ten judges were seated by seniority, alternating between right and left on the bench. Also on the panel were Judges Godwin, Reinhardt, Rymer, Kleinfeld (who dissented from the panel opinion), Gould, Clifton, Callahan, Bea, Ikuta, and N.R. Smith. Robert S. Coldron argued for the property owners, and Andrew W. Schwartz for the City. 

The judges wasted no time in their aggressive questioning of Coldron. He was barely a sentence into his argument when Judge Clifton drew first blood. He asked whether the mobile home park owners acquired the property subject to the regulations claimed to be a taking. The answer to that question, as we shall see, turned into a contentious issue that stretched the length of both parties' arguments. Coldron answered that in 1997, the park owners could not have sued the County of Santa Barbara (the government which imposed a similar rent control ordinance on mobile home parks prior to the incorporation of the City) since more than two years had passed since the County ordinance had been adopted, and the two year statute of limitations for a facial challenge to that ordinance had lapsed. Judge Clifton seemed somewhat irritated with the answers. Judge Clifton did not expressly articulate the source of his question, but appeared to be focusing on whether the plaintiffs had "property," or whether, by having purchased their property already subject to the regulatory regime (allegedly), they were on notice, so to speak, of the restrictions and should not be heard to complain now.

Judge Rymer wanted the answer to a more basic question: she asked whether "there is any such animal" as a facial taking under Penn Central, and if so "precisely, what is it?" Coldron answered by giving examples. In Hodel v. Irving, he asserted, the Supreme Court found a facial taking (this is one of the cases involving Congress' taking of fractionalized Indian interests in land). He also cited the Cienega Gardens case from the Federal Circuit as another example.

Judge Reinhardt challenged Coldron, and asked whether it was correct when he asserted that no one would buy a mobile home park. "Were the regulations in effect when your client bought the property?" "Most," Coldron responded, and started a back-and-forth where Judges Reinhardt and Kozinski tried to pin him down regarding exactly what was different about the regulations in place when the plaintiffs purchased their parks, and the regulations being challenged. Coldron gave several examples, but aroused the sarcasm of Judge Kozinski when he asserted that when he started practicing 30 years ago, the rent control laws were only two pages, but today they are 30 pages. "So it's a matter of pages?" Kozinski remarked, causing the courtroom to laugh, "can you be specific?"

Judge Rymer went back to her earlier question about whether there is "such an animal" as a facial Penn Central takings claim. "What is your precise challenge?" she asked. "What in the ordinance makes it invalid on its face?" Coldron seized on the question to explain. First, he responded, it froze the rent in 2002 at a fraction of 1979 values, with no adjustment. Second, it was a "negative wealth transfer" from the park owners to the mobile home owners, without any social benefit.

Continued in Part II.


This posting includes an audio/video/photo media file: Download Now

Chief Justice William S. Richardson (1919 - 2010)

Posted: 22 Jun 2010 11:49 AM PDT

There are, have been, and will be other Chief Justices of the Hawaii Supreme Court. But only one "CJ."

More here.

NJ Supreme Court And The "Bizarre Condemnation" - Klumpp v. Borough of Avalon

Posted: 22 Jun 2010 09:47 AM PDT

The New Jersey Supreme Court today issued a unanimous opinion in Klumpp v. Borough of Avalon, No. A-49-09 (Jun. 22, 2010), the case the New Jersey Law Journal described as the "bizarre condemnation" after the Appellate Division held that the government can assert inverse condemnation in order to take property without compensation. 

It's a detailed opinion, and we will post more details after we've had a chance to digest it, but here's the bottom line:

  • The Borough placed a dune on the plaintiffs' property in 1965, fenced it off to limit public access, and constructed an access path from the street to the beach over the property. A physical taking occurred no later than that date.
  • If the government takes property without undertaking eminent domain, the property owner can bring an inverse condemnation action. The statute of limitations for such claims is six years.
  • However, equity demands that the property owners are not barred from bringing an inverse condemnation claim. Until 2005, the Borough maintained that no taking had occurred. It was only after the plaintiffs filed suit did the Borough claim it owned the property by adverse possession. Because of the Borough's position, plaintiffs understandably demanded access to their property and filed claims for trespass and ejectment. After finally conceding, in 2005, that a taking occurred forty-three years earlier, the Borough now attempts to hide behind the statute of limitations to claim that plaintiffs have no right to an inverse condemnation action. In these circumstances and in the interest of justice and fairness, plaintiffs must be afforded a remedy for the appropriation of their property for public use.
  • Although their property was physically taken in 1965, the government should have provided some other form of notice before, and surely after, the taking. Instead, the Borough sent tax bills to the owner, designated the property as private on town maps, and took various contradictory positions.
  • The property owners are therefore allowed to amend their complaint to add an inverse condemnation claim for the value of the property in 1965.

Read the entire opinion here. We live blogged the oral arguments here. Rutgers Law School has the archived oral argument video posted here. The briefs of the parties and amici are posted here.

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June 22, 2010

2010 Annual Performance Plan

2010 Annual Performance Plan
The FDIC is required under the Government Performance and Results Act to submit to the Congress each year an Annual Performance Plan that outlines specific performance goals, targets and indicators for each of its three major business lines (Insurance, Supervision, and Receivership Management). The FDIC Chairman transmitted the 2010 Annual Performance Plan to the Congress on May 10, 2010.

To review this document, please visit http://www.fdic.gov/about/strategic/performance/2010/index.html.

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U.S. Housing Market Conditions,

Single-family housing permits and starts rose 9% from the previous quarter, the fourth successive improvement after 14 consecutive quarters of decline.
Completions of single-family homes fell 12% from the previous quarter, likely because of unusually cold weather.
Manufactured housing reversed a downward trend that began after the hurricane-induced sales increases of late 2005.
New home sales were down 4% from last quarter, while existing home sales dropped 14%. Distressed sales (foreclosures and short sales) represented 36% of all home sales.
New homebuyers accounted for 42% of all home sales.
Housing affordability rose 3% since the last quarter of 2009. This is attributed to a 2% decrease in the median price of existing single-family homes and a 0.4% rise in median family income, both of which offset a 3-basis-point increase in mortgage interest rates.
Homeownership rates for the nation and for minorities declined, reflecting the subprime lending crisis, high rates of unemployment, and the recession.
When compared with the last quarter of 2009, the multifamily (five or more units) housing sector improved.
The housing sector component of GDP (residential fixed investment) declined 10.9%, compared with a 3.8% increase in the previous quarter.



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June 21, 2010

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June 20, 2010

Commercial Property Analysis for Your Next Deal

Commercial Property Analysis for Your Next Deal 

If you plan to purchase an investment property, you should consider getting a commercial property analysis before any real estate deal. Incomplete research can sink the deal on any real estate. You must understand everything about it before making the purchase.

Many individuals consider several factors when they get a property analysis. The location of the land is very important. Is the land in area that is appreciating? Are there other business property buildings around this place? Also, the price of the asset is very important. Are the taxes expensive? Are there any local government and zoning laws? Finally you should see if the investment property is a source of potential rental income.  http://commercial.blognows.com/2010/06/20/commercial-property-analysis-for-your-next-investment-property/

The Harris Company has developed a Standard Investment Analysis complete with a Sensitivity Analysis

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June 19, 2010

Friday's Stop The Beach Renourishment (Judicial Takings) Links

Friday's Stop The Beach Renourishment (Judicial Takings) Links

Posted: 18 Jun 2010 05:30 PM PDT

Here's a round up of the latest commentary and analysis of yesterday's U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-1151.

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June 18, 2010

Financial Fraud Enforcement Task Force Announces Regional Results of “Operation Stolen Dreams” Targeting Mortgage Fraudsters

Department of Justice Press Release
For Immediate Release
June 17, 2010 United States Attorney's Office
Eastern District of California
Contact: (916) 554-2700 
Financial Fraud Enforcement Task Force Announces Regional Results of “Operation Stolen Dreams” Targeting Mortgage Fraudsters
46 Defendants Charged with Mortgage-Fraud Offenses in Cases Filed by Federal Prosecutors in the Eastern District of California, at Least Nine More Charged by District Attorneys During Three-and-a-Half-Month Period of Operation Stolen Dreams

SACRAMENTO, CA—Following an announcement today by Attorney General Eric Holder in Washington, D.C., representatives of the Financial Fraud Enforcement Task Force in the Eastern District of California, including U.S. Attorney Benjamin B. Wagner, FBI Assistant Special Agent in Charge Michelle Klimt, IRS-Criminal Investigation Special Agent in Charge Scott O’Briant, HUD-OIG Assistant Special Agent in Charge James Luu, California Department of Real Estate Commissioner Jeff Davi, Sacramento County District Attorney Jan Scully, and Butte County District Attorney Michael Ramsey announced the regional results of the nationwide takedown, Operation Stolen Dreams, which targeted mortgage fraudsters in the Eastern District of California and throughout the country.

The national takedown was organized by the Mortgage Fraud Working Group of President Obama’s interagency Financial Fraud Enforcement Task Force, which was established to lead an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. U.S. Attorney Wagner is a co-chair of the Mortgage Fraud Working Group. Starting on March 1, 2010, Operation Stolen Dreams resulted in the filing of 673 federal mortgage fraud cases in which 1,215 defendants were charged nationally. Operation Stolen Dreams cases were brought in every region of the United States. The FBI estimates that approximately $2.3 billion in losses were inflicted by the mortgage fraud schemes employed in these cases.

“Mortgage fraud ruins lives, destroys families, and devastates whole communities, so attacking the problem from every possible direction is vital,” said Attorney General Holder. “We will use every tool available to investigate, prosecute, and prevent mortgage fraud, and we will not rest until anyone preying on vulnerable American homeowners is brought to justice.”

During the takedown period for Operation Stolen Dreams, from March 1, 2010 to the present, charges were filed in 16 cases in the Eastern District of California, charging 46 defendants with felony mortgage-fraud offenses. During the three-and-a-half-month period of Operation Stolen Dreams, 11 federal felony guilty pleas were secured, and one defendant was sentenced. Additional federal mortgage fraud cases were filed prior to the commencement of Operation Stolen Dreams, and many mortgage fraud investigations are continuing, with future charges anticipated.

As part of Operation Stolen Dreams, the Tulare County District Attorney’s Office charged four defendants with mortgage fraud offenses and arrested a fifth. In addition, three defendants pleaded guilty and five defendants were sentenced in mortgage fraud cases brought by the Tulare County District Attorney’s Office. In cases brought by the Sacramento County District Attorney’s Office, two defendants were charged in one case and two more pleaded guilty in another. In two cases brought by the Stanislaus District Attorney’s Office, one defendant was charged and another was convicted and sentenced in mortgage fraud cases. The Merced County District Attorney’s Office also charged a defendant in a mortgage fraud case, the San Joaquin County District Attorney’s Office secured a guilty plea in a mortgage fraud case, and the Fresno County District Attorney’s Office secured a guilty plea and a conviction in a mortgage fraud case as part of the operation. In total, six district attorneys’ offices filed seven new criminal mortgage fraud cases against at least nine defendants, secured eight guilty pleas in previously filed cases, and had nine defendants sentenced.

U.S. Attorney Wagner stated, “Operation Stolen Dreams was an unprecedented mobilization of federal, state, and local resources to combat mortgage fraud. The results announced today reflect months of hard work by investigators and prosecutors from many agencies, working side by side, and I want to thank all my partners in this effort.” Wagner continued, “While today marks the end of Operation Stolen Dreams, it is only the beginning of our common fight against mortgage fraud. The resources that we have dedicated to this problem, the alliances of federal, state, and local law enforcement officials that we have formed, the experience that we have gained, and the intelligence we have gathered will continue to be deployed in a sustained battle against mortgage fraud in California.”

“The last number of years have seen enormous and damaging developments in the mortgage and housing markets with an urgent reliance on the government to bolster unstable marketplaces and devastated communities,” said Kenneth M. Donohue, Inspector General of the Department of Housing and Urban Development. “The HUD OIG, in partnership with other federal agencies, is deeply committed to ensuring that scarce resources are not diverted to those who seek to enrich themselves at the expense of those who so desperately need assistance.”

“Mortgage fraud is an escalating problem that has quite literally stolen the American dream of owning a home for many people,” said Scott O’Briant, Special Agent in Charge, IRS-Criminal Investigation. “The impact on homeowners and communities is devastating. IRS-CI will continue to utilize its financial investigative expertise to aggressively investigate criminal activities that adversely affect our financial system and prey on unwitting victims.”

California Department of Real Estate Commissioner Jeff Davi remarked, “Mortgage fraud activities have reached an all time high in recent years as a result of the abuse of subprime lending, predators in the marketplace, and the economic recession. Because of the collaboration and cooperation of the Department of Justice and other law enforcement and administrative prosecutorial agencies, we have been able to combat mortgage fraud better than ever before. We must continue to be relentless when it comes to taking action against those who profit or benefit from the perpetration of illegal activities against our fellow citizens.”

“With Sacramento County among the highest nationwide in foreclosure rates, we are taking strategic action to protect our distressed homeowners from becoming victims of mortgage fraud,” said Sacramento County District Attorney Jan Scully. “Our partnership with the Financial Fraud Enforcement Task Force and Operation Stolen Dreams has undoubtedly strengthened efforts to crack down on mortgage fraud locally and across the entire Eastern District of California.”

Unlike previous mortgage fraud sweeps, Operation Stolen Dreams focused not only on federal criminal cases, but also on civil enforcement, restitution for victims, and increasing cooperation with state and local partners. As part of the national operation, almost 200 civil enforcement actions were filed by the U.S. Department of Justice, the FTC, and other federal agencies.

The President’s Financial Fraud Enforcement Task Force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes. For more information on the task force, visit StopFraud.gov.

In the Eastern District of California, the work of the Financial Fraud Enforcement Task Force is being carried out by two task forces, consisting of federal, state, and local investigators and prosecutors. The Sacramento Division task force includes the FBI, IRS-Criminal Investigation, the HUD Office of Inspector General, U.S. Secret Service, U.S. Postal Inspection Service, the Veterans Administration Office of Inspector General, the FDIC Office of Inspector General, the U.S. Department of Labor Office of Inspector General, the California Department of Real Estate, the California Department of Corporations, the California Department of Financial Institutions, the California Office of Real Estate Appraisers, and the District Attorneys’ Offices for Butte, El Dorado, Nevada, Placer, Sacramento, San Joaquin, Solano, and Yolo Counties. The Fresno Division task force includes the FBI, IRS-Criminal Investigations, the HUD Office of Inspector General, U.S. Secret Service, Social Security Office of Inspector General, USDA Office of Inspector General, the U.S. Trustee’s Office, the California Attorney General’s Office, the California Department of Real Estate, and the District Attorneys’ Offices for Fresno, Kings, Merced, San Joaquin, Stanislaus, and Tulare Counties.

Some of the significant federal prosecutions filed as part of Operation Stolen Dreams include the following:

United States vs. Anthony Symmes
Cr. 10-200 EJG

On May 28, 2010, Symmes pleaded guilty to mail fraud conspiracy and money laundering in connection with a large-scale builder-buyout mortgage fraud scheme. For many years, Symmes was the largest homebuilder in Chico. In 2006, as the market cooled, Symmes had a significant amount of unsold new homes in inventory. Symmes established relationships with several unlicensed mortgage brokers to “sell” his homes to straw buyers at inflated prices. The entire reported purchase price was 100% financed on each home with various subprime lenders. Typically, the day after escrow closed, Symmes then rebated $40,000 to $60,000 of the reported purchase price per home to shell companies controlled by the buyers' agents. The rebates were not disclosed to the lenders. Altogether, from 2006 through 2008, Symmes sold 62 homes with undisclosed sales rebates. The homes were financed in the aggregate amount of $21 million. To date, 38 of the homes have fallen into foreclosure and 10 more have been the subject of short sales, causing losses to date of $5 million. Symmes has pleaded guilty, is presently cooperating in an ongoing mortgage fraud investigation, and has already paid $4 million toward restitution/forfeiture. He is currently scheduled to be sentenced on September 3, 2010.

United States vs. Garret Gililland, et al.
Cr. S 08-0376 EJG

This morning, a federal grand jury returned a second superseding indictment against Garret Griffith Gililland and Nicole Magpusao who were originally charged in 2008 with mail fraud and other charges relating to a multimillion dollar “builder bailout” mortgage fraud scheme in Chico. The new charges add eight defendants with participation in that scheme or related to it. Chico-area homebuilder William E. Baker; Nor Cal Innovative Investments Inc. president Shane Burreson; Leonard Williams, a licensed real estate professional; Christopher M. Chiavola, Brandon Resendez, Niche Fortune, and Kesha Haynie--all former employees of Gililland and Burreson; and Remy Heng. According to the new indictment, Gililland, Burreson, Chiavola, Resendez, and Williams recruited various individuals to purchase residential real properties. Gililland and his associates acted as the mortgage broker and real estate agent in connection with the transactions. Gililland, Burreson, and others assisted in obtaining residential loans for the transactions causing materially false loan applications to be prepared on behalf of the purchasers. Gililland, Burreson, Chiavola, and others arranged with the sellers of the properties to purchase the properties at a price above the true market price. The defendants also arranged to credit a percentage of the margin between the actual market price and the inflated purchase price of the properties after the close of escrow to various bank accounts controlled by defendants. At the same time, defendants caused the credits to be concealed from the lenders. As a result of the scheme to defraud, lenders issued loans in an aggregate amount of approximately $21 million. Bank accounts controlled by Gililland, Burreson, and others, received over $2 million in fraud proceeds, and defendants Gililland, Burreson, and others, ultimately caused losses to lenders of over $4 million.

The new indictment separately alleges that Chiavola, Resendez, Fortune, and Haynie, after leaving the employment of Gililland and Burreson, replicated the scheme on their own. Gililland, Burreson, and Chiavola are further charged with money laundering for bank transactions involving the proceeds of the fraud. Finally, Remy Heng is charged with bulk cash smuggling for attempting to ship $20,000 in cash in a Pringles potato chip can via Federal Express to Gililland in Spain while Gililland was a fugitive.

United States vs. Hoda Samuel, et al.
Cr. S 10-0223 JAM

On June 10, 2010, a federal grand jury returned an indictment charging 10 individuals with 48 counts, including charges of conspiracy to commit mortgage fraud, mail fraud, and making false statements in mortgage applications. The indictment focuses on two Elk Grove businesses owned by defendant Hoda Samuel—Liberty Real Estate and Investment Company and Liberty Mortgage Company. From April of 2006 through February of 2007, Samuel and other Liberty employees are alleged to have been involved in at least thirty separate residential real estate transactions involving fraud. Specifically, the indictment alleges that loan applications contained misrepresentations concerning loan applicants’ employment and income. In addition, the indictment alleges that many of the transactions involved the payment of cash-back to buyers, often disguised as payments to contractors for repair and remodelling work, and usually not revealed to the lenders. As a result of these undisclosed payments, lenders were led to believe that the houses being purchased were worth more than the buyers were actually paying for them. Of the thirty transactions described in the indictment, at least twenty-eight have now gone into foreclosure, causing a collective loss to the lenders of more than $5.5 million.

United States vs. William T. Bridge
Cr. S 08-275 WBS

William Bridge wilfully failed to report over $3.8 million dollars on his 2003-2006 federal tax returns that he had earned as a licensed real estate mortgage broker doing business as The Loan Center in San Francisco. In completing his tax returns, Bridge reported only the compensation he earned as part of the “yield spread premium” that was reported by the lending institutions themselves to the IRS. He did not report his full commission, which involved substantially more money. During the same time, Bridge was paying thousands of dollars in kickbacks to an employee of Long Beach Mortgage (formerly a subsidiary of Washington Mutual bank) to process what he knew were fraudulent loans application packages to be secured by residential properties located in the Sacramento and Stockton areas. Bridge pleaded guilty to multiple counts of filing false tax returns and paying kickbacks in connection with real estate loan transactions in 2008. On April 9, 2010, Bridge was sentenced to 21 months in prison, to be followed by one year of supervised release, $1,057,700.90 in restitution to the Internal Revenue Service, and a $60,000 fine. A co-conspirator, former Long Beach Mortgage employee Joel Blanford, is currently on trial in federal court in Sacramento.

United States vs. Eric Ray Hernandez, et al.
Cr. S 10-249 AWI

Eric Ray Hernandez, Monica Marie Hernandez, and Evelyn Brigget Sanchez, all of Bakersfield, were charged with submitting loan applications to lenders containing false and fraudulent information that caused lenders to fund mortgage loans based on such fraudulent applications. The indictment alleges that the defendants caused false statements to be submitted to lenders concerning buyers’ income, assets, and liabilities, buyers’ employment status, and buyers’ intent to occupy the properties as their personal residences. Additionally, the defendants are alleged to have submitted false supporting documentation in support of mortgage loan applications, including false pay stubs, false letters purporting to be from the buyers’ tax accountant, false customer letters purporting to support the buyers’ self-employment status, and false verifications of the buyers’ bank funds on deposit. The indictment alleges that the defendants defrauded lenders of in excess of $2.5 million through this scheme.

United States vs. Albert Lewis Ellis, et al.

This morning, a federal grand jury in Fresno returned a five-count indictment against Albert Lewis Ellis, 46, of Fresno, Richard Keith Hanna, 42, of Elk Grove, and Wrenl Burge, 38, of Fresno charging them with conspiracy to commit mail fraud, three counts of mail fraud, and one count of identity theft. The defendants used social security numbers belonging to another person to establish credit and then apply for a mortgage making materially false statements by listing the victim’s social security number, listing false and fraudulent employment information, including the false credit report. The defendants caused false and fraudulent loan applications to be submitted to seven different lending institutions and because of the conduct, the defendants defrauded lenders of in excess of $2 million.

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June 17, 2010

A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak)

Posted: 16 Jun 2010 10:10 AM PDT

The WMA Reporter, the monthly publication of the Western Manufactured Communities Housing Association has published A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak), my short article that attempts to deconstruct some of the more common terms property lawyers toss about. Here's the Introduction:

One of my law school professors once remarked (hopefully in jest) "if it ain’t Latin, it ain't the law." While thankfully we have moved away from the days when Latin and Norman French were the languages of the law, those of us who regularly represent property owners defending their rights sometimes toss about terms that, although they purport to be standard English, often make normal people look at us askance.

We may forget that not everyone might understand what we mean when we say, for example, "The court dismissed the regulatory takings claim on ripeness grounds under Williamson County because the property owner had not exhausted her administrative remedies. That left for the state court to decide whether the claim was a per se Lucas taking, or whether to apply the ad hoc Penn Central analysis."

If you know what that means, congratulations, you don’t need this guide. However, for those of you not yet familiar with the lingua franca of regulatory takings and eminent domain lawyers, here’s a crash course of some of the more common terms.

Download the full article pdf here

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June 14, 2010

California Alternative Energy and Advanced Transportation Financing Authority (CAEATFA)

California Alternative Energy and Advanced Transportation Financing Authority (CAEATFA)

Senate Bill (SB) 77 Workshops

CAEATFA will be holding its first public workshop on SB 77 (Property Assessed Clean Energy Bond Reserve Fund) program implementation on Wednesday, June 30th from 10am to Noon. It will be held at the Van Nuys State Office Building’s Auditorium*, located at 6150 Van Nuys Boulevard, Van Nuys, California 91401. Agenda and presentation materials will be sent out at a later date. This will be the first of several workshops that will be held throughout the state in the coming months. Please RSVP if you plan to attend this workshop. If you have any questions or comments prior to the workshop, please contact Martha Alvarez at (916) 653-1296.

* CAEATFA complies with the Americans With Disabilities Act (ADA) by ensuring that the facilities are accessible to persons with disabilities, and providing this notice and information given to the members of the CAEATFA in appropriate alternative formats when requested. If you need further assistance, including disability-related modifications or accommodations, you may contact Martha Alvarez at CAEATFA no later than five calendar days before the meeting at (916) 653-1296 and Telecommunication Device for the Deaf (TDD) at 654-9922.

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Impact Fee Not Reasonably Related To Burden Created By Development

Impact Fee Not Reasonably Related To Burden Created By Development

Posted: 14 Jun 2010 02:40 AM PDT

Most of the time when we think of impact fees and other development exactions, Nollan and Dolan spring immediately to mind. In those two cases, the Court established the requirement that exactions have a reasonable relationship ("nexus") to some ill caused by a proposed development, and be "roughly proportional" to the impact created by the development.

Absent a nexus and proportionality, an exaction is "not a valid regulation of land use but 'an out-and-out plan of extortion.'" Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (citations omitted). The Court was worried that absent a nexus and proportionality, impact fees, in-lieu fees, and development exactions were a form of "pay to play" where local governments take advantage of the fact that a property owner seeks development approvals, to leverage land other property or cash to address impacts not caused by the property owner.

However, Nollan/Dolan is not the only context in which these issues arise. In Homebuilders Ass'n Tulare/Kings Counties, Inc. v. City of Lemoore, No. F057671 (Cal. Ct. App. June 9, 2010), for example, the court invalidated an impact fee under California's Mitigation Fee Act (Cal. Gov't Code § 66000, et seq.) because fees imposed on development in one part of town where fire facilities were adequate would be used to offset the cost of already-built fire facilities in another part of town. The standards for impact fees under the Act are similar to the constitutional Nollan/Dolan standards, and the court concluded the impact fee violated the statute because it was not reasonably related to the burden created by a development.

In 2005, the City of Lemoore commissioned an impact fee study to support the imposition of various impact fees for such things as law enforcement, park land acquisition and improvement, refuse, fire protection, and community recreational facilities. The Homebuilders Association challenged the fees for a variety of reasons, but its petition was eventually whittled down to the Mitigation Fee Act and California's Quimby Act (Cal. Gov't Code § 66477), which limits the ways local governments can impose subdivision exactions. The trial court upheld all of the impact fees except the park land improvement fee, which it invalidated as preempted by the Quimby Act.

The court of appeal reversed the Quimby Act holding (see slip op. 10-14 if you are interested for the analysis of preemption) and upheld all of the other impact fees, except one part of the Fire Protection Impact Fee, which it invalidated under the Mitigation Fee Act:


For purposes of calculating fire protection impact fees, the Colgan Report divided the City into two service areas, the older established east side and the newer west side. Regarding the east side, the Colgan Report states that "the facilities and equipment needed to serve future development are already in place, so impact fees for that area are intended to recover new development's proportionate share of the cost of the fire protection assets serving the area. The revenue from those fees will be used to offset a portion of the City's recent investments in facility improvements and new equipment, which were funded in part with general fund money." In contrast, the west side will need a new fire station and equipment to serve that area as it develops.


As discussed above, the Mitigation Fee Act requires the local agency to determine that the amount of the fee and the need for the public facility are reasonably related to the burden created by the development project. Further, the local agency must identify the facilities to be financed by the fee.

HBA objects to the east side fees on the ground that they are being imposed for general revenue purposes. Since there is no need for additional fire protection facilities in that part of the City to serve new development, HBA contends that no nexus exists between the fees and the burden posed by new housing.

HBA is correct. While a fee may be imposed to cover costs attributable to increased demand for public facilities reasonably related to the development project in order to (1) refurbish existing facilities to maintain the existing level of service or (2) achieve an adopted level of service that is consistent with the general plan (§ 66001, subd. (g)), the existing east side fire protection facilities are already adequate to continue to provide the same level of service. In other words, the new development will not burden the current facilities. The Colgan Report's proposal to reimburse the City for its prior general fund money investments is not authorized by the Mitigation Fee Act. Rather, such a fee would constitute general revenue to the City in violation of section 66008, and therefore is invalid.

Slip op. at 18-19.

However, the court upheld the fire protection fee for developments on the other side of town: 

The Colgan Report concludes that, due to the barrier created by Highway 41 between the east side and the west side of the City, a new fire station will be required to serve the west side as it develops. In calculating the cost per capita for the west side, Colgan included the forecasted population of a 476 acre area that may be annexed to the City in the future. This addition resulted in reducing the west side fire protection impact fees by approximately 28 percent.

HBA objects to the calculation including this potential annexation area as opposed to using the existing legal boundaries of the City. HBA posits that a new fire station might not be needed if the hypothetical annexation does not occur.

Contrary to HBA's position, the Colgan Report provides a reasonable basis for the City's adoption of the west side impact fee. There is no indication that, without the potential annexation, additional fire protection facilities would be unnecessary to serve new development. Rather, it can be inferred from the relatively low percentage of fee reduction, i.e., 28 percent, that fire protection facilities would be required with or without the annexation. The City considered the potential population to be served for the purpose of reducing the fee that would otherwise be charged and spreading the costs more equitably. This action was not arbitrary or capricious.

Slip op. at 19.

This case is worth a read even for non-California practitioners. Even though this opinion deals with the Mitigation Fee Act, the court's handling of Nollan/Dolan-like standards is instructive for anyone who deals with impact fees and exactions.

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June 13, 2010

Cal. Ct. Appeal: Nominal Compensation In Takings Of Railroad Property

Cal. Ct. Appeal: Nominal Compensation In Takings Of Railroad Property

Posted: 11 Jun 2010 08:54 PM PDT

In City of Oakland v. Schenck, 197 Cal. 456 (1925), the California Supreme Court held that when a railroad's property is being taken, nominal compensation and not fair market value may be the appropriate measure of "just compensation."

held that "where a street is opened across a railroad right of way, the rule as to the amount of compensation to be allowed the railroad company is different from the rule which prevails in the case of the taking of the property of an individual for like uses." Schenck, 197 Cal. at 460-61. Nominal compensation may be due if the property's use as a railroad will not be greatly impacted by placing a road across it. In other words, putting a road across railroad tracks don't substantially impact the value of the railroad tracks.

In City of San Jose v. Union Pacific Railroad Co., No. H033503 (June 11, 2010), the California Court of Appeal (Sixth District) applied the Schenck rule to a condemnation by the City of easements over the railroad's property in order to widen an existing road across the tracks. The trial court concluded that the taking of the portions of the railroad's property within the "Necessary Track Clearance Width" resulted in nominal compensation under the rule of while the taking of the railroad's property outside that area was not subject to the Schenck rule because Union Pacific did not use that property for its tracks. Both parties appealed. The court of appeals summed up the case:

At the heart of the dispute is whether City of Oakland v. Schenck (1925) 197 Cal. 456 (Schenck), is controlling authority. We conclude that it is. We therefore affirm the judgment.

Slip op. at 1. Union Pacific conceded the facts were indistinguishable from Schenck but argued that the case had been decided under a statute which was later superceded by the 1975 Eminent Domain Code (Cal. Code. Civ. P. § 1230.010 et seq.). The court rejected the argument and concluded that the result in Schenck was compelled by the "constitutional concept of reasonable compensation rather than the condemnation statute then in effect." Slip op. at 6. The court continued:

Schenck made this point in the language we emphasized earlier by explaining that the rule as to the amount of compensation to be allowed a railroad company for a public crossing is different from the ordinary rule because one of the incidents of the public use to which a railroad company dedicates its property used as a right of way is the right of the public to construct street crossings wherever and whenever reasonably necessary. Thus, in condemning an easement for a street across a railroad right of way, the inquiry must be directed to ascertaining the extent to which the value of the company‟s right to use the land for railroad tracks will be diminished by the opening of the street across it.

Slip op. at 7-8. The City's taking of an easement within the Necessary Track Clearance Width to widen a road no different, and the court applied the nominal compensation rule.

The court, however, also rejected the City's claim that the same rule applied to the Union Pacific land outside of the Necessary Track Clearance Width. The court held that on that land, the taking would have more than a nominal impact on Union Pacific's right to use the land for railroad tracks (since it did not have tracks there).

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June 10, 2010

The California Environmental Quality Act

The California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) ("CEQA") provides that the purpose of an environmental impact report ("EIR") is "to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment." (Pub. Resources Code, § 21061.) In Center for Biological Diversity v. County of San Bernardino (2010) __ Cal.App.4th __, the court found that an EIR for a proposed open-air composting facility did not satisfy the informational purposes of an EIR in relation to air quality alternatives and water supply

View the entire entry:
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Major bank selects appraisal firm to provide CVR

Major bank selects appraisal firm to provide CVR 
The fifth largest bank in the nation chose an appraisal firm to provide Bradford Technologies’ Collateral Valuation Report for its valuation needs. Find out which bank is working with which appraisal company. 
U.S. Bank, the nation’s fifth largest bank, will incorporate the Collateral Valuation Report (CVR) as its preferred valuation product. Forsythe Appraisals, LLC, the largest independent appraisal firm in the country and Valocity, LLC, its appraisal management company arm, were selected by U.S. Bank to provide the new CVR appraisal report on a nationwide basis. Both Forsythe Appraisals and U.S. Bank are headquartered in Minneapolis.

In this article: 
U.S. Bank
Forsythe Appraisals
Collateral Valuation Report
The CVR is a USPAP-compliant appraisal product that incorporates regression analysis performed by the appraiser to support the value conclusion. The valuation report and software was developed by Bradford Technologies, Inc., headquartered in Silicon Valley, as part of their suite of AppraisalWorld Services for appraisers, appraisal management companies and lenders.

Forsythe Appraisals, Valocity and Bradford Technologies partnered to provide the CVR as a cost-effective alternative to broker price opinions (BPOs) and Automated Valuation Models (AVMs) which typically require little or no appraiser interaction.

Tony Pistilli, U.S. Bank’s chief retail appraiser for consumer banking risk management explained that U.S. Bank was attracted to the CVR by its accuracy and reliability. “We believe the CVR will provide a more accurate and more reliable valuation with additional analytical features compared to anything else currently in the marketplace,” he said. “The value of the CVR is seen as a better way to ensure objectivity and to deliver a valuation with a minimum of valuation bias”.

Tim Forsythe, CEO of Forsythe Appraisals, was enthusiastic about broadening his firm’s existing relationship with U.S. Bank. “Obviously we’re thrilled to be working with U.S. Bank to provide products and services that meet a broad range of lending needs. We anticipate it being a real help to them and hope that we can provide the CVR solution for other needs in the future. Valuations based on regression analysis performed by appraisers who are the local market valuation experts is the way all appraisals in the future will be performed. We are enthusiastic about leading the industry alongside U.S. Bank,” he said.

Mark Linné, EVP of education and analytics at Bradford Technologies, echoed Forsythe’s sentiments when he said, “Transparent statistics will be a part of all appraisals in the future. We are adding science to the art of appraising and we are very pleased that U.S. Bank recognizes the value that statistically supported valuations will bring to their risk analysis and decision making process.”

“We’re making every effort to educate the marketplace on the CVR and the great value it offers. We are making a difference one lender at a time. We are also currently training and certifying hundreds of appraisers on the use of regression analytics to meet the coming demand,” he continued.

<a href="http://www.valuationreview.com/ME2/Audiences/dirmod.asp?sid=270E8EBA5AF64172B917EBD588EDB85A&nm=Daily+News&type=news&mod=News&mid=5F249E552B2C49509BC41751816632F3&AudID=F0F48C5C19CB47B3A675FD6074A3CB8A&tier=3&nid=36C144894E914732A87C4AD6B655E158 ">http://www.valuationreview.com/ME2/Audiences/dirmod.asp?sid=270E8EBA5AF64172B917EBD588EDB85A&nm=Daily+News&type=news&mod=News&mid=5F249E552B2C49509BC41751816632F3&AudID=F0F48C5C19CB47B3A675FD6074A3CB8A&tier=3&nid=36C144894E914732A87C4AD6B655E158 </a>

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June 09, 2010

"Bigger Than They Should've Been," GE Capital To Cut $30 Bil.-$40 Bil. in Real Estate

"Bigger Than They Should've Been," GE Capital To Cut $30 Bil.-$40 Bil. in Real Estate

June 9, 2010
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Announcement from USPAP, Uniform Standards of Professional Appraisal Practice

Announcement from USPAP, Uniform Standards of Professional Appraisal Practice
I would like to ask you to forward this invite for the USPAP group on LinkedIn to Appraisers and other users of Appraisal Services that you believe may benefit from being a member and may provide productive discussion.

Please FORWARD this invitation to others to become a part of the USPAP, Uniform Standards of Professional Appraisal Practice Group on LinkedIn. To find us on LinkedIn they can use this link http://www.linkedin.com/groupRegistration?gid=1873048

We now have 1,158 members now and growing. Our members include more AQB Certified USPAP Instructors than any group I am aware of, with the exception of The Appraisal Foundation itself. We also have multiple people in leadership from The Appraisal Foundation, the Appraisal Section of NAR, NAIFA, AI, ASA, FannieMae, Freddie Mac and numerous regulatory Appraisers and investigatory Appraisers, truly a unique mix. In addition to those there are many other Appraisers, lenders, AMC representatives, Appraisal school representatives and others with an interest in USPAP and what it is we do.

We welcome your participation and comments, so we might learn from you and share with you our collective knowledge and experiences.

Please take the next step and forward this invitation.



Donald J. Martin, SCRP, RAA, GAA, CDEI
Appraising Since 1977
Residential, Agricultural, Commercial & Industrial Appraisers
AQB Certified USPAP Instructor
Certified Distance Education Instructor
ERC Certified
FHA/HUD Certified
VA Fee Panel
IL Certified General Real Estate Appraiser Expires 09/30/11
IN Certified General Real Estate Appraiser Expires 06/30/12
WI Certified General Real Estate Appraiser Expires 12/14/11

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June 07, 2010


Special Presentation: J. Craig Williams Discusses Amendments to Rule 26

This will affect ALL expert witnesses -- you can’t afford to not to know

Tuesday, June 15 at 5:30 p.m.

Seats are limited: reservation deadline June 10

J. Craig Williams will present the latest developments on e-discovery rules. Come and learn about last month's U.S. Supreme Court approval of amendments to Rule 26, which concerns the admissibility of expert witness draft reports and testimony.  Absent any congressional intervention, these amendments will become effective on Dec. 1, 2010. 

The Supreme Court approved the proposed amendments to Federal Rules of Civil Procedure 8, 26, and 56, and Illustrative Form 52, and transmitted them to Congress. The amendments were approved by the Judicial Conference of the United States last fall.

These amendments will extend work-product protection to the discovery of draft reports by testifying expert witnesses and to the discovery of communications between testifying expert witnesses and retaining counsel, with three important exceptions. The amendments also provide that a lawyer relying on a witness, who will provide expert testimony but who is not required to provide a Rule 26(a)(2)(B) report (because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony) must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer. The prior 1993 amendments to Civil Rule 26 have been interpreted by some courts to allow discovery of all draft expert witness reports and all communications between counsel and testifying expert witnesses. The experience under those amendments revealed significant practical problems in the eyes of many litigators.

Mr. Williams is a partner at the Orange County, CA office of the international law firm Sedgwick, Detert, Moran & Arnold. He is a member of the firm’s E-Discovery, Data Management & Compliance practice group. His practice focuses on complex business litigation with emphasis on environmental, intellectual property, real estate, technology law and labor matters, and their respective insurance coverage and related tort issues. Mr. Williams also handles white-collar criminal matters in both securities and environmental areas and practices in admiralty and tax courts. He is a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy, an American Bar Association and California State Bar Approved Agency.

Location: Radisson Newport Beach, 4545 MacArthur Blvd, Newport Beach, CA 92660

Times: Networking with cash bar 5:30, dinner and program at 6:15 p.m.

Dinner is included with plated Cesar salad, Italian entrée and dessert. Please inform us if you prefer vegetarian options before the reservation deadline.  

Reservation deadline June 10: Please DOWNLOAD THE RESERVATION FORM and return by mail, fax: (562) 692-3425 or email: RSVP@forensic.org. Reservations forms are also available in the Calendar section of www.forensic.org: select the Orange County entry and click "preregister with payment" at the bottom to download the form.

We have updated the FEWA policy to encourage prepayment as it streamlines the registration process. Prepaid members receive a reduced cost of $45.  If you choose to pay at the door, please be aware the cost will be $60.  Cancellations are refundable prior to the reservation deadline. Cash, Check, MasterCard, Visa, AmericanExpress accepted.



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June 03, 2010

Procedures for Implementing the Penalty for the Substantial and

http://www.harriscompanyrec.com/IRSAppraiser.pdf Procedures for Implementing the Penalty for the Substantial and
Gross Valuation Misstatements Attributable to Incorrect  http://www.harriscompanyrec.com/IRSAppraiser.pdf  IRC Section 6695A
The purpose of this memorandum is to provide interim guidae all of our
examiners are aware of the procedures for assertion of the IRC section 6695A Penalty.
The Service has authority to assert penalties and to seek enjoinment of appraisers.
Prior to the passage of the Pension Protection Act of 2006 (Pub. L. No. 109-280),
appraisers could only be subject to penalties under IRC section 6700 or IRC section
Section 1219 of the Pension Protection Act of 2006 added new IRC section 6695A,
Substantial and Gross Valuation Misstatements Attributable to Incorrect Appraisals.
This new penalty provision allows the Service to assert a penalty against any person
who prepared an appraisal of the value of property and who knew, or reasonably should
have known, the appraisal would be used in connection with a return or claim for refund
and that appraisal results in a substantial valuation misstatement (within the meaning of
IRC section 6662(e)), a substantial estate or gift tax valuation understatement (within
the meaning of IRC section 6662(g)), or a gross valuation misstatement (within the
meaning of IRC section 6662(h)) with respect to such property.
<a href="IRSAppraiser.pdf ">
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June 02, 2010

Special Presentation: J. Craig Williams Discusses Amendments to Rule 26

This will affect ALL expert witnesses -- you can’t afford to not to know

Tuesday, June 15 at 5:30 p.m.

Seats are limited: reservation deadline June 10

J. Craig Williams will present the latest developments on e-discovery rules. Come and learn about last month's U.S. Supreme Court approval of amendments to Rule 26, which concerns the admissibility of expert witness draft reports and testimony.  Absent any congressional intervention, these amendments will become effective on Dec. 1, 2010.

The Supreme Court approved the proposed amendments to Federal Rules of Civil Procedure 8, 26, and 56, and Illustrative Form 52, and transmitted them to Congress. The amendments were approved by the Judicial Conference of the United States last fall.

These amendments will extend work-product protection to the discovery of draft reports by testifying expert witnesses and to the discovery of communications between testifying expert witnesses and retaining counsel, with three important exceptions. The amendments also provide that a lawyer relying on a witness, who will provide expert testimony but who is not required to provide a Rule 26(a)(2)(B) report (because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony) must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer. The prior 1993 amendments to Civil Rule 26 have been interpreted by some courts to allow discovery of all draft expert witness reports and all communications between counsel and testifying expert witnesses. The experience under those amendments revealed significant practical problems in the eyes of many litigators.

Mr. Williams is a partner at the Orange County, CA office of the international law firm Sedgwick, Detert, Moran & Arnold. He is a member of the firm’s E-Discovery, Data Management & Compliance practice group. His practice focuses on complex business litigation with emphasis on environmental, intellectual property, real estate, technology law and labor matters, and their respective insurance coverage and related tort issues. Mr. Williams also handles white-collar criminal matters in both securities and environmental areas and practices in admiralty and tax courts. He is a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy, an American Bar Association and California State Bar Approved Agency.

Location: Radisson Newport Beach, 4545 MacArthur Blvd, Newport Beach, CA 92660

Times: Networking with cash bar 5:30, dinner and program at 6:15 p.m.
Dinner is included with plated Cesar salad, Italian entrée and dessert. Please inform us if you prefer vegetarian options before the reservation deadline. 
Reservation deadline June 10: Please DOWNLOAD THE RESERVATION FORM  and return by mail, fax: (562) 692-3425 or email: RSVP@forensic.org. Reservations forms are also available in the Calendar section of www.forensic.org: select the Orange County entry and click “preregister with payment” at the bottom to download the form.

We have updated the FEWA policy to encourage prepayment as it streamlines the registration process. Prepaid members receive a reduced cost of $45.  If you choose to pay at the door, please be aware the cost will be $60.  Cancellations are refundable prior to the reservation deadline. Cash, Check, MasterCard, Visa, AmericanExpress accepted.


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Court of Appeals Columbia Eminent Domain Argument Live Blogged

Yesterday the state's top court, the Court of Appeals, heard argument on the Empire State Development Corporation's appeal of the December lower court ruling that ESDC's use of eminent domain for Columbia University's expansion was illegal and invalid. That decision came nine days after the Court of Appeals ruled (on November 24, 2009) that ESDC's use of eminent domain for Ratner's Atlatnic Yards was legal. The two rulings on very similar cases of eminent domain are, of course, at odds with each other. The Court of Appeals will have to evaluate its own Atlantic Yards ruling to come to terms on how to handle the Columbia case.

The argument was live blogged here by student reporters from the Columbia Spectator and by eminent domain attorneys here on the Inverse Condemnation blog.

The Spectator reporters (Maggie Astor and Kim Kirschenbaum) also provided excellent coverage after the argument: Court of Appeals grills state on M'ville blight, civic purpose of expansion
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June 01, 2010

Easements and Boundary Disputes

Easements and Boundary Disputes  http://www.ceb.com/CEBSite/product.asp?calling%5Fpage=CLEProgramsDisplay%2Easp&catalog%5Fname=CEB&menu%5Fcategory=CLE+Courses&main%5Fcategory=CLE%20Program&sub%5Fcategory=CLE%20Programs%20Real%20Property&product%5Fid=RE05610&Page=1&utm_source=sm&utm_medium=tw&utm_content=programs&utm_campaign=RE05610_40330_1

Program Description

Easement and boundary disputes are the "bread and butter" of many real property practices. However, they can be challenging cases to litigate because alternative legal theories may have conflicting results, and equitable considerations may have an unexpected impact on the outcome. Economic considerations are also a factor, as such cases often involve relatively small dollar amounts, despite soaring real estate prices; and the emotional issues may substantially outweigh the damages, particularly in residential situations, where the friendliest neighbors can end up becoming bitter enemies.

Learn how to evaluate easement and boundary cases and decide which remedies to pursue. Find out what type of expert testimony is needed and what strategies will provide the best outcome for your clients.

Assumes no prior experience in litigating easement or boundary disputes.

Program Highlights

  • Easement defined
    • license distinguished
  • Types of easements
    • appurtenant vs. in gross
    • exclusive vs. nonexclusive
  • Methods of creation
    • express/implied grant or reservation
    • by necessity
    • by prescription
    • equitable easements
  • Location and use
  • Rights and duties of the parties
  • Termination
    • release/merger
    • nonuse/abandonment
    • estoppel
  • Boundary issues
    • trespass/encroachment
    • good faith improver
  • Alternative dispute resolution
  • Causes of action
    • quiet title
    • ejectment
    • injunctive relief
    • availability of lis pendens
  • Statutes of limitation
  • Expert testimony
  • Attorney's fees
  • Possible sources of insurance coverage
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