Rental Agreement Indemnity Clause ‘Unconscionable’

Liquidated Damage Upheld for Mall Lease

By Deborah Elkins
Published: January 17, 2013
Tags: Fairfax County Circuit Court, Judge Jan L. Brodie, Real Estate, Virginia Circuit Courts

The parties’ commercial lease for a wireless services store contains a valid liquidated damages clause calling for the balance of rent due under the term of the lease, which is not unconscionable under the controlling Maryland law; the Fairfax Circuit Court orders judgment for plaintiff lessor, a shopping mall, requiring defendant tenant to pay $70,644.85, [...]

Consent-to-Sell Provisions Are Ambiguous

By Deborah Elkins
Published: January 17, 2013
Tags: Fairfax County Circuit Court, Judge Jonathan C. Thacher, Real Estate, Virginia Circuit Courts

In this dispute over a contract for the sale of real estate with multiple owners, the owners’ Operating Agreements are ambiguous because one provision states 51 percent of the members must agree to sell, and another provision says it takes 80 percent of the members to consent, and the Fairfax Circuit Court says the ambiguity [...]

Homeowners’ Contract, Fraud Claims Survive

By Deborah Elkins
Published: January 7, 2013
Tags: Judge Henry E. Hudson, Real Estate, U.S. District Court - Eastern District

Although defendant bank provided 29 days’ notice of intent to accelerate plaintiff homeowners’ loan, instead of the required 30 days, the Richmond U.S. District Court will not dismiss plaintiffs’ claim for breach of contract, or their claim for actual fraud, based on alleged representations by a named bank employee that the foreclosure sale scheduled for [...]

No Jurisdiction Over Loan Closers

By Deborah Elkins
Published: December 19, 2012
Tags: Judge Henry E. Hudson, Real Estate, U.S. District Court - Eastern District

In lender’s action for indemnity against broker, the Richmond U.S. District Court says it lacks jurisdiction to include a Massachusetts closing attorney and title company the broker claims should be responsible for borrower’s fraud. In early 2007, lender and broker entered an agreement for broker to originate mortgage loans. The agreement included provision for broker [...]

Still No Private HAMP Claim

By Deborah Elkins
Published: December 19, 2012
Tags: Judge Raymond A. Jackson, Real Estate, U.S. District Court - Eastern District

The Newport News U.S. district court says borrower cannot state a claim for relief against servicing lender for exercising its right to foreclose rather than grant another loan modification; 4th Circuit precedent establishes that the federal Home Affordable Modification Plan (HAMP) does not create a private right of action. After securing financing to purchase land [...]

Lender’s Indemnity Claim Proceeds

By Deborah Elkins
Published: December 19, 2012
Tags: Judge Henry E. Hudson, Real Estate, U.S. District Court - Eastern District

In lender’s action to enforce indemnity provisions of its agreement with originator, the Richmond U.S. District Court denies originator’s motion to dismiss: the agreement terms do not require originator awareness of fraud when loan applications are submitted. A 2001 agreement between lender and originator required originator to indemnify lender for losses arising from misrepresentation. A [...]

Dismissal After Notice-and-Cure Failure

By Deborah Elkins
Published: November 28, 2012
Tags: Judge James R. Spencer, Real Estate, U.S. District Court - Eastern District

A homeowner’s contract action against the U.S. is not barred under the doctrine of res judicata by an earlier Consent Order in which plaintiff promised to stay current on his mortgage; the Richmond U.S. District Court denies the motion to dismiss the claim against the U.S., but dismisses the claims against the other two defendants, [...]

Homeowner’s Foreclosure Challenge Dismissed

By Deborah Elkins
Published: November 19, 2012
Tags: Judge James C. Cacheris, Real Estate, U.S. District Court - Eastern District

An Alexandria U.S. District Court dismisses with prejudice this suit filed by a homeowner facing foreclosure, who sued defendant bank and its servicing agent after plaintiff began receiving demands in 2011 for payment from the bank’s servicing agent on behalf of defendants, the bank, the Mortgage Registration Systems Inc. and the trustee, Samuel I. White [...]

Homeowner Has DOT Good Faith Claim

By Deborah Elkins
Published: November 19, 2012
Tags: Judge Henry E. Hudson, Real Estate, U.S. District Court - Eastern District

A woman who is suing defendant bank on a claim that it denied her a permanent loan modification under the Home Affordable Modification Program for which she allegedly qualified states claims for claim for breach of the duty of good faith and fair dealing implied in the Note and Deed of Trust. Defendant JP Morgan [...]