Author Archives: kern

Court Limits Scope Of Guarantor Waivers

Note to readers: This brief post covers only one key aspect of this important case. There are other ramifications for contractual relationships that could impact you. Check with us for more details if you have an interest, or any concerns.

In the recent court case of California Bank & Trust v. Del Ponti, the court set an important precedent that applies to disputes on commercial loans between property developers and lenders.  In effect, a commercial lender cannot enforce waivers in guarantee agreements which are unlawful or otherwise contravene public policy.  Guarantor waivers are limited to certain legal and statutory defenses specifically set forth in the agreements, but not equitable defenses.  Continue reading

Failure to Pay Dividend Led to Chapter 13 Case Dismissal

The Failure To Pay The Promised Dividend To Unsecured Creditors Was Ruled Grounds For Dismissal Of A Chapter 13 Case, Even If The Debtor Makes All Monthly Plan Payments. 

 In the recent opinion issued in Schlegel v. Billingslea (In Re Schlegel), 14 C.D.O.S. 3166 (March 31, 2015), the United States Bankruptcy Appellate Panel of the Ninth Circuit addressed for the first time whether a Chapter 13 case with a confirmed plan may be dismissed for the debtors’ failure to pay the approved percentage dividend to unsecured nonpriority creditors during the applicable commitment period, even though the debtors otherwise made all monthly payments due under the confirmed plan.  Continue reading

Legal Tactic Switcheroo in Landlord-Tenant Dispute Fails Due to Missing “Rent Due” Notification

Timing of 3-Day Notice to Pay Rent or Quit was not preceded by written notice that the lease in question was reinstated and that rent was again due.

In December 2014, the Appellate Court issued an Opinion in the Santa Clara County case of Kruger v. Reyes, 14 C.D.O.S. 14116 (December 17, 2014) that illustrates the importance of adequate notice to the tenant of rent due when a terminated lease has been reinstated, particularly in cases where the tenant pays rent by directly depositing funds into the landlord’s bank account. Continue reading

Negotiations Resolved Lien Priority Dispute

Our Negotiation Techniques Resolve Lien Priority Dispute Before Complaint Served

We recently settled a lien priority dispute that resulted in the recovery of several hundred thousand dollars for our client, consisting of 100% of all principal, interest and attorneys’ fees due her. Continue reading

Insurance Claim for Pre-foreclosure Damage May Be Barred By Full Credit Bid at Foreclosure Sale

Foreclosing lenders in secured transactions who intend to make a claim under an insurance policy for pre-foreclosure damage should be wary of making a full credit bid at the foreclosure sale.  Continue reading

Poniatowski Leding Parikh Helps Local Horse Ranch Operation Obtain Conditional Use Permit

horse business attorneyWe recently helped a horse boarding and stables operation in the San Francisco Bay Area to successfully obtain a conditional use permit from Alameda County to continue in business at their long-time existing location. Prior to our involvement, the process had been hung up for over two years without resolution. Continue reading

Resolving Tenant-Owner Commercial Property Claims

Commercial vs Residential Use, Property Damage Liability and Lawful Detainers

We defended the owner of a commercial property (a lender that had foreclosed and credit bid at the foreclosure sale) in a civil action by the former tenant of the property that had been evicted in an unlawful detainer action we prosecuted for the owner/lender. Continue reading

Navigating Pre-Judgment Remedies and California Anti-Deficiency Rules

Taking our client through a complex legal environment successfully

PLP recently represented a large financial institution in a commercial collections matter in Alameda County.  We successfully obtained expedited orders for Writs of Attachment on the debtor’s commercial and residential properties, and immediately recovered substantial Continue reading

Commercial Lease Extension

Signed With National Franchisor As Tenant

We recently completed the successful negotiation and drafting of a  commercial lease extension on behalf of our client, the Landlord and owner of commercial property in Hayward, California (East Bay).  The Tenant is a large, national automotive repair franchisor. 

Hayward Landlord Tenant

The Tenant had allowed its option to renew to expire, allowing us to negotiate and draft lease modification language to provide for an increase in rents to market with annual CPI increases and 3%  minimum annual increases.  Market conditions also allowed us to  eliminate a right of first refusal that the Tenant previous enjoyed, thereby increasing the marketability of the property  for a potential sale by the Landlord.  

Commercial Lease Contracts

We are seeing a significant increase in activity in the commercial real estate leasing market  while representing  landlords, tenants, brokers and property managers.  Our clients are advising us the rents are increasing and inventory is low, making it a landlord’s market as the San Francisco Bay Area economy continues to improve.

More about commercial lease contracts or tenant representation

Forbearance Agreements Do Not Violate California Usury Laws

If your judgment debtor is offering to pay you a fee to forbear collection of your judgment, rest assured the forbearance agreement is not usurious. 

In the recently-decided case, Bisno v. Kahn, 14 C.D.O.S. 4439 (April 25, 2014), the Court made clear that a forbearance agreement is a separate contract, wholly separate from a judgment and the sums owed under a judgment. 

In Bisno, a judgment debtor offered to pay to the judgment creditors a fee in exchange for the judgment creditors’ agreement to forbear from enforcing the judgment while the judgment debtor closed an unrelated real estate transaction. After the judgment was fully satisfied, that same judgment creditor sought to recover the forbearance fees he paid to the judgment creditors, claiming the payment of the forbearance fees was a violation of California’s usury laws. 

Following a thorough summary of the legislative history of California’s usury laws and the intent behind those laws, the Court held that the usury laws do not prohibit a judgment creditor from receiving forbearance fees in addition to statutory post-judgment interest. The Court further held that while a forbearance fee does not constitute a recoverable cost under the Enforcement Of Judgments Law (see Code of Civil Procedure section 685.040, which allows a judgment creditor to recover “the reasonable and necessary costs of enforcing a judgment”), there is no provision in the Enforcement Of Judgments Law that prohibits parties from entering into private agreements to forbear collection of a judgment. 

Note: “Forebearance” is defined in legal terms as “the action of refraining from exercising a legal right, especially enforcing the payment of a debt.”