by Justin Tollefsen | Mar 4, 2015 | Attorneys, Blog, Civil Litigation, Real Estate WA, Trusts and Estates WA, Washingon State
What do you do when a seller fails to reconvey the title to property following payment of the loan, then dies? Failure to reconvey puts a cloud on the title that must be quieted. However, a quiet title action can be a drawn out and expensive matter. Is there a way to obtain a quiet title without a quiet title action? Failure to Reconvey Recently, a client called in a panic on a Friday afternoon. She was selling her home and it was closing day of her sale. The former owner had failed to reconvey the property and then died. The old title company’s solution to the failure to reconvey fell through. The new title company had just informed my client that they would not issue a title insurance policy without a hold-back of hundreds of thousands of dollars. They also said that she needed a quiet title, that this would require a quiet title action, which would take six to nine months, and the costs would be her responsibility. However, the sale could not close without the title insurance policy. My client obtained an extension of the closing date, granted the buyers a rental agreement at no cost to them while she worked to enable the sale to close. However, she was frustrated, angry, and afraid she was about to have no house, no money, months of litigation she could ill afford, and all the liability of having renters with no money for the rent. My client had purchased the home with seller financing nineteen years earlier on a five year Note backed by a Deed of Trust....
by John J. Tollefsen | Sep 10, 2014 | Blog, Civil Litigation, Civil Litigation WA
Kathryn Learner Family Trust v. Wilson, 2014 Wash. App. LEXIS 2196 (Wash. Ct. App., Div. 3, Sept. 4, 2014) Decision: 140904-Learner-v-Wilson It has long been the common law rule that a plaintiff must give notice to the defendant of the type of damages it is seeking. Prior to the advent of “notice pleading” the defendant had the right to notice of the amount of damages. The rule developed that “general damages” did not need pled. General damages are those which are the “natural and necessary result of the wrongful act or omission asserted as the basis for liability. They are presumed by or implied in law to have resulted from the injury.”1Jensen v. Torr, 44 Wn. App. 207, 214, 721 P.2d 992 (1986). Attorney fees were considered “costs” but the meaning of “costs” changed over time through statutory construction and judicial decision as American courts moved from their British roots. Under federal law, attorney fees arising under a contract2If the attorney fees are from another source like a statute or are part of the cause of action, the rule probably is not applicable are special damages that must be pled under Federal Rule of Civil Procedure 9(g).3United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 764 (5th Cir. 1996) (citing Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840, 843 (3rd Cir. 1973) This court held that these rules have been altered in Washington by Civil Rule 54(c) which provides the except “as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose...
by John J. Tollefsen | May 30, 2012 | Blog, Civil Litigation
Civil litigation can be the modern equivalent of warfare. It can be painful, wasteful, and often unpleasant. You will be forced to reveal everything that may possibly lead to relevant evidence. Your email and documents will be scoured for material that can be twisted to the opponents advantage. On the other hand, if you have made proper preparation by anticipating the risks, writing the appropriate contracts, and practicing good preventative legal techniques, the pain can be minimal. Planning to Start Litigation The first step in litigation is the most important and most often overlooked: proper analysis and planning. Too often, people want to “get going” because they are angry. This can be disastrous. Prudent litigation involves putting the case together thoroughly before filing the lawsuit. All applicable law should be reviewed. All known evidence should be reviewed. Witnesses should be interviewed. Proper litigation planning saves money over the long run and prevents most surprises. You should know the weaknesses in your case and the opponents likely counter attack before you file. If planning is done properly, you can evaluate the case and have a good idea what it is worth before filing. Plaintiff’s Perspective The plaintiff has the burden of proof and must keep the case moving. The Plaintiff is in the position of the person playing the white chess pieces: The plaintiff must press the case forward. This means that the plaintiff must be willing to spend money to obtain discovery and file necessary motions. It makes little sense to file a case and hope the defendant will settle. If the threat of the case does not move the...
by John J. Tollefsen | Feb 22, 2012 | Blog, Civil Litigation, Civil Litigation WA, Contracts
Recovery for Misrepresentations Causing Pecuniary Harm The Restatement (Second) of Torts identifies four causes of action that can be used to recover for misrepresentations causing monetary harm. The distinctions between the four theories are nuanced and are not uniformly applied by state courts. What follows is a simplified summary of some of the major differences between the four remedies. Both Fraud and Innocent Misrepresentation use scienter as an element of their causes of action. Restitution and Negligent Misrepresentation do not. Breach of warranty is also available under contract law and is subject to contract law defenses. (E.g. Restatement (Second) of Contracts (St. Paul, MN: American Law Institute Publishers, 1981), §§ 304, 306). It is outside the scope article which deals with tort and near tort remedies. In cases involving the sale of goods under Article 2 of the Uniform Commercial Code, most fact patterns actionable under the tort of Innocent Misrepresentation would also be actionable under the Code on the theory of breach of warranty. Unlike Innocent Misrepresentation, the measure of damages for breach of warranty includes compensation for benefit of the bargain and for consequential losses. Innocent Misrepresentation has the advantage of not being subject to Code defenses such as the parol evidence rule. 1) Restitution After the merger of courts of law and equity in most jurisdictions, some courts applied the equitable rescission remedy at law allowing a party to seek rescission of a transaction on the ground of misrepresentation, even an innocent misrepresentation.1Rescission is similarly granted for mutual mistake. See Restatement of Restitution, §§ 6, 8. The usual precondition for Restitution is the return of what...
by John J. Tollefsen | Aug 28, 2011 | Blog, Civil Litigation, Federal Law, Securities US
Federal Securities Law Overview With Commentary by John Tollefsen1The author has served and continues to serve on several securities laws committees of the American Bar Association Business Law and Litigation Sections. He has been a speaker at Continuing Legal Education seminars on securities law. He obtained his Series 27 (Financial Principal), 24 (General Principal), 7 and 63 NASD licenses and founded two securities broker dealers businesses. He also managed a Securities Exchange Commission licensed stock transfer agent. His practice included numerous private placements and several public offering registrations. He was privileged to make quasi-official visits with a team of ABA securities lawyers to ranking members of several international stock exchanges including some in China and the former Soviet Union and Soviet-Bloc countries of Poland, Czechoslovakia, and Hungary. One delegation was headed by the Solicitor General of the SEC. He has been active in the SEC Small Business Forum on Small Business Capital Formation since 1982. U.S. banking laws3The securities laws are a subset of banking regulation. Banks and broker-dealers were combined except during the Glass-Steagall regime (1933-1999). were written in response to financial crisis. The stock market first crashed in 1792. The first of thirteen major bank panics occurred in 1814.4Charles W. Calomiris, U.S. Bank Deregulation in Historical Perspective, (Cambridge: Cambridge University Press, 200), 98. The Wall Street Crash of 1929 did not trigger a major bank panic. Id. In times of economic stress, it is politically popular to bash the “robber barons of Wall Street” creating a season of “financial reform”. Thus, the Securities Act of 1933 was passed unanimously without debate. More recently the Sarbanes Oxley...
by John J. Tollefsen | Jul 31, 2011 | Blog, Business Torts WA, Civil Litigation, Civil Litigation WA, Consumer Protection WA, Fraud, Washingon State
Unjust Enrichment – Washington State Law The terms “restitution” and “unjust enrichment” are the modern designations for the older “quasi contracts” terminology.127 WAPRAC § 5.51 The Washington court has adopted the unjust enrichment terminology, but continues to use the quasi contractual terminology interchangeably: “Quasi contracts” are not true contracts but are obligations created by the law when money or property has been placed in one person’s possession under such circumstances that in equity and good conscience, he ought not to retain it. [Citation omitted.] Thus, the substance of an action for unjust enrichment lies in a promise, implied by law, that one will render to the person entitled thereto that which in equity and good conscience, belongs to the latter. At common law, such actions are brought under the principles of assumpsit, and where the cause of action arises from a tortious wrong, it is the general rule, whether or not there be an express contract, that the injured party may waive the tort and sue in assumpsit, in which case the law will imply a contract on the part of the tort-feasor to pay the injured party a just remuneration for the damages suffered to his property.2Bill v. Gattavara, 34 Wash. 2d 645, 209 P.2d 457 (1949), (4-1 decision). In unjust enrichment terms, two basic elements must be established in quasi-contractual actions: the person receiving a benefit (such as money) must be unjustly enriched, and the party conferring the benefit must not be a volunteer.3Lynch v. Deaconess Medical Center, 113 Wash. 2d 162, 776 P.2d 681 (1989); Trane Co. v. Randolph Plumbing & Heating, 44 Wash. App. 438,...
