The Financial Institutions Have Committed Fraud Against The American People
The Financial Institutions Have Committed Fraud Against The American People
The financial institution at no time ever explained to the borrower that the trust was in fact neither a,
mortgage, or a trust agreement, nor that the trustee is only in name and not in actuality a fiduciary.
Although the trust agreement has a grantor, a beneficiary any trustee, and the duties of the trustee or
those of what an actual trustee would be in a trust agreement, it appears that this is an intentional
deception on the part of the financial institution for they have at no time explained to the borrower that
a deed of trust, is neither a trust agreement under the common understanding, nor is it evidence of a
secured loan:
1.
by three-fourths (or 75%) vote: Only four of seven members affirmatively voted for the proposal with
three members absent, resulting in a four-sevenths, or 57%, vote. Therefore, the document is void. The
City's argument comes up short at the second step. A deed of trust is an encumbrance on real property
akin to a mortgage; it is not a sale. Black's Law Dictionary (10th ed. 2014) (explaining that deed of
trust "resembles a mortgage"); Maryland Nat. Mortg. Corp. v. Albanese , 26 Va. Cir. 362, 1992 WL
12033445, at *1–2 (Arlington Cnty. Cir. Ct. 1992) (rejecting argument that deed of trust is a
In re Suzanne
This statute is irrelevant. Title 62A RCW applies to commercial transactions. The deed of trust is not
such a transaction. Mr. Goe further claims the deed of trust signed by the commissioner was invalid
because he failed to take an oath as required by RCW 2.24.020:
No. C 12-03827 CRB (N.D. Cal. Feb. 25, 2013) Cited 10 times
of its conventional role as a mere lender of money." Lopez v. GMAC Mortg., No. CV F 11-1795 LJO JLT,
2011 WL 6029875, at *12 (E.D. Cal. Dec. 5, 2011) (quoting Nymark v. Heart Fed. Sav. & Loan Assn., 231
Cal. App. 3d 1089, 1096 (Ct. App. 1991). Furthermore, "[a] trustee under a deed of trust is not a true
trustee that owes fiduciary duties to the trustor." In re Cedano, 470 B.R. 522, 534 (B.A.P. 9th Cir. 2012).
In addition, "loan servicers do not owe a duty to the borrowers of the loans they service." Bascos v.
Fed. Home Loan Mortg. Corp., No. CV 11-3968-JFW JCX, 2011 WL 3157063, at *7 (C.D
CIVIL ACTION NO. 20-987 SECTION: "E" (3) (E.D. La. May. 19, 2021)
to gratify a nonpecuniary interest means a contract made "to satisfy an interest of a spiritual order," and
includes contracts to make works of art, contracts to conduct scientific research, and other contracts
pertaining to sentimental matters. As noted above, "a mortgage or loan contract does not by its nature
satisfy a nonpecuniary interest." Further, Plaintiff failed to allege that Defendants intended to aggrieve
Plaintiff's feelings, despite that being the outcome of the alleged breach of contract. Accordingly,
Plaintiff has not stated a claim that supports the award of nonpecuniary
that duty; and (3) the breach damaged the Development Company. See Roderick v. Ricks, 54 P.3d 1119,
1125 (Utah 2002) (citing elements for breach of fiduciary duty in a legal malpractice case). The
Development Company fails on the first element of this test. As general matter, a holder of a trust deed
has no fiduciary duty to the trustor. See Russell v. Lundberg, 120 P.3d 541, 545 (Utah Ct. App. 2005)
("[A] fiduciary duty arises not from the mere existence of the trustor-trustee relationship, but rather
from facts evidencing a confidential relationship above and beyond that ordinarily found
and unlawfully invested for its own account. While the distribution statutes did create a trust
relationship, they did not establish the County as a trustee of a strict trust that owed the fiduciary duties
plaintiff alleges. "Courts have aptly noted in the context of deeds of trust that, ‘ "Just as a panda is not
a true bear, a trustee of a deed of trust is not a true trustee." [Citation.]’ ( Monterey S.P. Partnership
v. W.L. Bangham, Inc. (1989) 49 Cal.3d 454, 462 [261 Cal.Rptr. 587, 777 P.2d 623].) The same can be
said here, ...." ( McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382,
First, "[t]he law is clear that foreclosing on a deed of trust does not invoke the statutory protections of
the RFDCPA." Collins v. Power Default Servs., Inc., No. 09-4838 SC, 2010 WL 234902, at *3 (N.D.Cal. Jan.
14, 2010) (collecting numerous cases). "[F]oreclosure pursuant to a deed of trust does not constitute
debt collection under the RFDCPA." Castaneda v. Saxon Mortgage Servs., Inc., 687 F.Supp.2d 1191,
1197, 2009 WL 4640673, at *3 (E.D.Cal. 2009); see also Gonzalez v. First Franklin Loan Servs., No. 1:09-
CV-00941 AWI-GSA, 2010 WL 144862, at *7 (E.D.Cal. Jan. 11, 2010)…
The "law is clear that foreclosing on a deed of trust does not invoke the statutory protections of the
RFDCPA." Collins v. Power Default Serv's., Inc., No. 09-4838 SC, 2010 WL 234902, at *3 (N.D.Cal. Jan.
14, 2010) (collecting numerous cases). "[F]oreclosure pursuant to a deed of trust does not constitute
debt collection under the RFDCPA." Castaneda v. Saxon Mortgage Servs., Inc., 687 F.Supp.2d 1191, 1197
(E.D.Cal. 2009); see also Gonzalez v. First Franklin Loan Servs., No. 1:09-CV-00941 AWI-GSA, 2010 WL
144862, at *7 (E.D.Cal. Jan. 11, 2010) ("[F]oreclosure related actions . . . do
Monterey S. Partnership v. W. L. Bangham, Inc.
that Western, as trustee under the deed of trust, was not in any event a "trustee of an express trust"
within the meaning of former section 369 The similarities between a trustee of an express trust and a
trustee under a deed of trust end with the name. "Just as a panda is not a true bear, a trustee of a
deed of trust is not a true trustee." ( Stephens, Partain Cunningham v. Hollis (1987) 196 Cal.App.3d 948,
955 [ 242 Cal.Rptr. 251].) Thus, the trustee of an express trust must consent to serve as trustee (see
Prob. Code, § 15600); must not "use or deal with trust property for the trustee's
A deed of trust cannot exist in a vacuum. Once the underlying obligation is satisfied, the deed of trust
is automatically extinguished by operation of law. (See, e.g., Alliance Mortgage Co. v. Rothwell, supra,
10 Cal.4th at p. 1235 [“A security interest cannot exist without an underlying obligation, and therefore
a.
liable for breach of fiduciary duties. For the reasons stated elsewhere, we conclude Vergara has not
pleaded any actionable irregularities in the sale. Further, Melmet, although nominally a “trustee,” was
not a trustee with fiduciary duties to Vergara. “Just as a panda is not an ordinary bear, a trustee of a
deed of trust is not an ordinary trustee.” (Stephens, Partain & Cunningham v. Hollis (1987) 196
Cal.App.3d 948, 955.) The duties of a trustee under a deed of trust are “strictly limited and defined by
the contract of the parties and the statutes.” (I. E. Associates v. Safeco Title Ins. Co
title company respondents owed any duty of care to Woodworth or that they breached any duty.
Woodworth, citing Ruth v. Lytton Sav. Loan Assn., 266 Cal.App.2d 831 [ 72 Cal.Rptr. 521], further argues
that the title company respondents were "trustees." (4) It is well established, however, that a trustee
under a deed of trust is not a trustee in the technical sense. Rather, he is the agent of all the parties to
the escrow at all times prior to performance of the conditions of the escrow and bears a fiduciary
relationship to each of them. His obligation to each is measured by an application of the
its only involvement in this case was as the original trustee on the deed of trust. (Doc. # 1, 2:11-12).
Land Title points to NRS 107.028(5) which clearly states that a trustee does not have a fiduciary duty
under a deed of trust. (Id., 6:5-7). Land Title also argues that it has long been held that a trustee under
a deed of trust does not owe fiduciary obligations. (Doc. # 52, 5:24-27). The court, however, does not
find that Land Title has satisfied its burden of establishing fraudulent joinder by clear and convincing
evidence. See Hamilton Materials, 494 F.3d at 1206. Thus, Land Title has not
title to passing title ck to the grantor/borrower in the case of payment, or to the lender in the event of
foreclosure. See Foreman v. Holloway, 122 Ark. 341, 183 S.W. 763 (1916). The lender holds the
indebtedness and is the beneficiary of the deed of trust. House, supra. A trustee under a deed of trust
is not a true trustee. Heritage Oaks Partners v. First Am. Title, Ins. Co., 66 Cal. Rptr.3d 510 (Cal.Ct.App.
2007). Under a deed of trust, the trustee's duties are limited to (1) upon default undertaking
foreclosure and (2) upon satisfaction of the debt to reconvey the deed of trust. Id. In the
the debt. Appellant argues that the trustee was under a duty to give notice of the sale to the appellant
on the basis of the trustee's relationship with appellant's predecessors in interest under general
principles of trust law. The argument misconceives the legal incidents of a trust deed. [7] An ordinary
trust deed is little more than a mortgage with power to convey. ( Bank of Italy v. Bentley, 217 Cal. 644,
654 [ 20 P.2d 940].) [8] "A trustee under a deed of trust does not assume the important obligations
which in some instances are cast upon a trustee by operation of law." ( Ainsa v
Case No. EDCV 12-00165 VAP (OPx) (C.D. Cal. Jan. 31, 2013)
and trustee (see Am. Opp'n at 9), Plaintiff misapprehends the difference between a deed of trust and an
express trust. Plaintiff argues that a trust must include three separate parties as beneficiary, trustor,
and trustee. (See id. (citing Black's Law Dictionary (4th ed.)).) A deed of trust is not actually a trust,
however. "The similarities between a trustee of an express trust and a trustee under a deed of trust
end with the name." Monterey S. P. P'ship v. W. L. Bangham, Inc., 49 Cal. 3d 454, 462 (1989) (en banc).
"The 'trustee' of a deed of trust is not a trustee at all in a technical or
of a deed of trust" creates a debtor-creditor relationship); High Knob Assocs. v. Douglas , 249 Va. 478,
484 n.4, 457 S.E.2d 349 (Va. 1995) ("A deed of trust merely creates a lien on property to secure a
debt."). And Virginia courts have consistently held in the statutory context that the holder of a deed of
trust is not an "owner," as one would expect if a deed of trust were a sale. Williams v. Fairfax Cty.
Redevelopment & Hous. Auth. , 227 Va. 309, 314, 315 S.E.2d 202 (Va. 1984) ; Loyola Fed. Sav. & Loan
Ass'n v. Herndon Lumber & Millwork, Inc. , 218 Va. 803, 805, 241 S.E.2d 752 (Va. 1978)
CIVIL ACTION NO. 3:13-CV-2557-B (N.D. Tex. Mar. 18, 2014) Cited 1 times
A plaintiff may be able to make out a viable claim for wrongful foreclosure or to quiet title by challenging
the validity of the chain of title by which a defendant purportedly attained its authority to foreclose.
Miller, 881 F. Supp. 2d at 829. A deed of trust, however, is not required to be recorded as a matter of
Texas law, nor is its assignment. Dallas County v. MERSCORP, Inc., No. 3:11-CV-2733-O, 2013 WL
5903300, at *4 (N.D. Tex. Nov. 4, 2013); Preston, 931 F. Supp. 2d at 755-56; Millet, 2012 WL 1029497, at
*3; Bittinger v. Wells Fargo Bank, N.A., 744 F. Supp. 2d 619, 625 (S.D. Tex
as trustee for every one who has an interest in the property, and account as a trustee to all. The
difference between a mortgage and a trust deed is clear enough. 3 Jones on Mortgages (8th Ed.),
Section 2292; 2 Perry on Trusts (6th Ed.), Section 749. A trustee under a trust deed has duties not at all
comparable to those of a simple mortgagee. We do not find, however, that the instrument in question
here was anything but a simple mortgage. The confusion appears to have arisen from the fact that
Bowman, as a mortgagee, was a trustee, but the fact that he was a trustee, as well as a mortgagee,
Asfaw v. Woldberhan
50 percent of the Vineland property in 2003; the gross income from the apartments was $384,000 in
2003, and the expenses were $357,000 that year. The evidence does not support the trial court's finding
that father owned only 50 percent of Vineland. A trust deed is essentially a lien and does not convey
any ownership interest in property to the trustee. Witkin explains: "The trustee takes the legal title for
security only, leaving a legal estate and the ordinary rights of ownership in the trustor." (4 Witkin,
Summary of Cal. Law (10th ed. 2005) Secured Transactions in Real Property, § 6, p
then taken over by the bankruptcy court. The principal issue raised on this appeal is whether the duties
and liabilities of Lane, as a subdivision trustee, are the same as that of a common law trustee. Lane
contends that its fiduciary duty is not as strict as that of a common law trustee because a subdivision
trust is more in the nature of a deed in trust, or mortgage, rather than a common law trust. This is a
case of first impression in this jurisdiction, and therefore in order to analyze this proposition it is
necessary to examine the nature and purposes of a subdivision trust. In Arizona a
3) Breach of fiduciary duty Cohn and Goldberg move for summary judgment on the ground that they
cannot be liable merely for acting as fiduciaries to both the grantor and the beneficiary of a deed of
trust. They argue that this dual role of the trustee under a deed of trust is sanctioned by long tradition
and does not in itself create a breach of fiduciary obligations. Plaintiffs respond to that argument with
specific allegations of misconduct. They allege that the trustees acted as attorneys for Option One
rather than fiduciaries of both parties; that they proceeded with the sale
Fin. Freedom v. Horrocks
deed of a trust. The purpose of a deed of trust is to secure to a lender the repayment of a borrower's
debt. Sonny Arnold, Inc. v. Sentry Sav. Assoc., 615 S.W.2d 333, 339 (Tex.Civ.App.-Amarillo, 1981) aff'd
633 S.W.2d 811 (Tex. 1982). To accomplish this purpose, a deed of trust creates only a lien on property
and does not constitute a conveyance of the property. Sandel v. Burney, 714 S.W.2d 40, 41 (Tex.App.-
San Antonio 1986, no writ). We hold that, as a matter of law, the Deeds of Trust did not create a life
estate in Johansen. Therefore, we turn to the summary judgment evidence submitted by
1.
be made, or presents or causes to be presented, for payment or approval . . . any claim" against the
United States. No claim has been tendered against the United States for "payment." But a claim has
been presented for "approval" in the meaning of the Act. For the United States has been induced by
fraudulent representations to insure these loans. One who has the endorsement of the United States on
his paper has acquired property of substantial value. It is a property right of value because it represents
a claim against the United States. It is of course contingent until a default occurs. But
United States ex rel. Friddle v. Taylor, Bean & Whitaker Mortg. Corp.
CIVIL ACTION NO. 1:06-cv-3023-JEC (N.D. Ga. Mar. 27, 2012) Cited 4 times
the United States. They sue both the corporate defendants and three individuals affiliated with the latter
for violations of the False Claims Act, 31 U.S.C. §§ 3729-3733. Relators allege that the defendants
engaged in massive mortgage fraud against the United State Government ["the Government"] by duping
the latter into guaranteeing fraudulent, high-risk loans through application materials that contained
false information. When the borrowers eventually defaulted, defendants presented claims for
repayment to the Government; relators allege that defendants' claims of entitlement to repayment
13 Civ. 02350 (ILG) (SMG) (E.D.N.Y. Mar. 12, 2014) Cited 3 times
Plaintiffs challenge a number of Defendants' lending and servicing practices, beginning with the
origination of Plaintiffs' mortgages. Plaintiffs allege that Defendants engaged in "deceptive and
predatory lending practices" by misrepresenting the risks of Plaintiffs' mortgages. These
misrepresentations include statements that the housing market was stable and exaggerations of the
expected increase in housing prices; failures to meaningfully discuss the "individual implications" of their
loans' terms,
People v. Valverde
I. Prosecution Case In the early 2000's, defendants owned Summit Mortgage One, a mortgage brokerage
firm. They committed mortgage loan fraud against a number of borrowers and lenders, misrepresenting
loan terms and costs to borrowers, deceiving lenders with regard to borrowers' financial standing, and
forging loan documents. The original and corrected iterations of the first amended indictment alleged
that one or more of the two defendants in this appeal committed these crimes between July 1, 2002,
and July 31,
In this lawsuit plaintiff First Magnus Financial Corporation (FMFC) alleges defendants entered into a
mortgage fraud scheme to induce FMFC into funding fraudulent loans. FMFC asserts a claim against the
defendants involved in the alleged scheme for a violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d), as well as eleven other
Case No. 06-2426-JWL (D. Kan. Feb. 27, 2007) Cited 6 times
In this lawsuit plaintiff First Magnus Financial Corporation (FMFC) alleges that the defendants were
involved in a mortgage fraud scheme to induce FMFC into funding fraudulent loans. On February 7, 2007,
United States Magistrate Judge David J. Waxse issued two orders directing FMFC to show cause why this
action should not be dismissed as to certain defendants (docs. #78 #79). This matter
State v. Pratt
closed. Testimony at trial indicated that payments to the construction company were made ostensibly
for construction work performed on the properties, but there was no evidence that any such work had
been done. The complaint further alleges that, in reliance on these false and misleading purchase
agreements and loan applications, the mortgage lenders involved were swindled out of loan funds.
Under Minn.Stat. § 609.52, subd. 2(4), a person is guilty of theft by swindle if the person, “whether by
artifice, trick, device, or any other means, obtains property or services from another person.”
Amended Complaint, Anna Isaacs and Jody Kimbrell are suing the Royal Bank of Canada, a Canadian
chartered bank, RBC Capital Markets Corporation, Anthony Giannini, Steven Smith and Todd Rhoades
for their involvement in extending them mortgages. Plaintiffs allege these Defendants used false and
fraudulent mortgage documents to underwrite the Plaintiffs' loans. The Amended Complaint alleges five
causes of action: Fraudulent Conveyance of Real Property, Fraudulent Mortgage Documents, Deceptive
Business Practices, Breach of Fiduciary Duty, and Gross Negligence. Plaintiffs unambiguously state the
Crofton v. Bank of America Home Loans
Case No. 11-10124 (E.D. Mich. Mar. 31, 2011) Cited 9 times
Plaintiffs allege that Countrywide and MERS violated Michigan's Mortgage Brokers, Lenders and
Servicers Licensing Act ("MBLSLA") by engaging in fraud, deceit, and/or material misrepresentations in
connection with their mortgage transaction. Specifically, Plaintiffs' allege that Defendants charged them
excessive fees and induced them to enter into a transaction that provided them little or no benefit.
(Compl. ¶¶ 25,
Plaintiff alleges that Chase committed fraud in connection with the mortgage lending process. See Am.
Compl. at 4. Fraud must be pleaded with particularity. Fed. R. Civ. P. 9(b). "The Sixth Circuit interprets
Rule 9(b) as requiring plaintiffs to 'allege the time, place, and content of the alleged misrepresentation
on which he or she relied; the
On September 11, 2013, Plaintiffs filed suit in the Circuit Court of the First Circuit for the State of Hawaii
against Deutsche Bank and US Bank. (Doc. 11.) The Complaint alleges that Deutsche Bank and US Bank
knowingly participated in a false and deceptive scheme involving the fraudulent assignment of
mortgages and mortgage notes. (Doc. 1-1 at 12-13.) This alleged scheme entailed the Defendants
knowingly accepting the assignment of these instruments from New Century Mortgage Corp. ("New
Century"), where New Century purportedly lacked an
Civil Action No.: 12-7599 (JLL) (D.N.J. Feb. 7, 2013) Cited 2 times
that representation." Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181
F.3d 410, 426 (3d Cir. 1999). Plaintiffs' Complaint alleges, in pertinent part, that "Defendants...engaged
in unconscionable commercial practices, deception, fraud, false pretense, false promise and/or
misrepresentations with regard to the subject mortgage by never disclosing the terms of the loan prior
to closing and falsifying signatures on loan closing documents." (Compl., Count One, ¶ 14). The closing
took place on September 1, 2006. (Compl., Count One, ¶ 11). Although Plaintiffs also
Case No. RWT 13-cv-2639 (D. Md. Sep. 11, 2014) Cited 2 times
in original). Second, Plaintiffs allege that Defendant "violated numerous sections" of the National Bank
Act, 12 U.S.C. § 1, et seq, but actually recite only one violation. According to the Complaint, the National
Bank Act prohibits financial institutions from "enter[ing] into mortgage agreements for real estate
beyond a 5-year period," rendering Defendant's 30-year mortgage with Plaintiffs "by operation of
law...fraudulent." Id. Third, Plaintiffs, citing U.C.C. § 3-308, "deny the validity of any signature on any
photocopy of a Promissory Note." Id. Finally, Plaintiffs, citing the Fair Debt
Zurich Am. Ins. Co. v. Diamond Title of Sarasota, Inc.
and lasted until the Spring of 2008. During the conspiracy, Rotolo made materially false statements and
representations on various mortgage documents including sale and purchase contracts, loan
applications, and HUD-lSettlement Statements. The purpose of the fraud was to obtain loans secured by
mortgages from FDIC-Insured banks and mortgage lending businesses. Examples of the false statements
Rotolo made include: the sellers and purchasers in the transactions; the familial relationships between
and among the parties to the transactions; the properties' actual purchase prices; the borrowers'
At various times during the period from November, 1951, through January, 1953, the defendants
submitted to the South Carolina National Bank, an institution approved by the Federal Housing
Administration for insurance against losses sustained from the lending of money for home
improvements, fraudulent FHA loan applications and credit reports pertaining to the financial condition
of customers of the Home Comfort Company, and conspired thereby among themselves and their
customers to defraud the United States by obtaining the approval of false and fictitious applications for
loans insured by the…
Civil Action No. DKC 14-3339 (D. Md. Jul. 20, 2015) Cited 1 times
Second, Plaintiff alleges that Defendant "violated numerous sections" of the National Bank Act, 12 U.S.C.
§ 1, et seq, but then only asserts one such violation. (Id.). According to Plaintiff, the National Bank Act
prohibits financial institutions from "enter[ing] into mortgage agreements for real estate beyond [a] 5—
year period[,]" which purportedly renders Defendant's 30-year mortgage with Plaintiff fraudulent "by
operation of law." (Id.). Third, citing U.C.C. § 3—308, Plaintiff "denies the validity of signature on any
photocopy of a Promissory Note" and requests the issuance of a subpoena
Simmons v. Reich
of the fraud will be imputed to a plaintiff if there are circumstances sufficient to alert a reasonable
person to the probability that he or she has been defrauded." Id. (citing Curi, 978 F. Supp. at 444). Here,
Plaintiffs allege that Defendants made fraudulent misrepresentations in connection with their loan
agreements, causing them to take out loans with illegally high interest rates. Assuming their allegations
are true, Plaintiffs sustained an injury when they assumed these loan obligations. See Chainani v. Dime
Sav. Bank FSB, No. 94-CV-7549, 1996 WL 622031, at *4 (S.D.N.Y. Oct. 28,
County, Logan County, Menifee County, Monroe County, Montgomery County, Nelson County, Nicholas
County, Ohio County, Oldham County, Perry County, Rockcastle County, Spencer County, Trimble County
and Wolfe County. Plaintiffs allege that the financial institutions and mortgage / title companies
Defendants devised and executed a scheme to avoid paying recording fees for mortgage assignments.
Specifically, Plaintiffs allege that the Defendants, shareholders of Defendant Mortgage Electronic
Registration Systems, Inc. ("MERS") established the MERS system in the mid-1990s to act as an
electronic
D. "Fraudulent" Mortgage Loan Scheme Finally, plaintiffs allege that defendants engaged in "fraudulent"
business acts through a fraudulent mortgage loan scheme that misled the Cabreras and other borrowers
into accepting loans that they could not afford. But plaintiffs fail to allege specific acts of fraud or
misstatement that induced other homeowners into accepting loans they could not afford. Regarding
their own mortgage, plaintiffs allege
Plaintiff, Premium Capital Funding ("PCF") alleges fraudulent real estate and mortgage loan transaction
that induced it to fund mortgage loans based on materially false information and documentation and
the omission of material information. The defendants are AR Home Loans ("AR") and Timothy Barron.
Pending before the court is AR's motion for summary judgment on plaintiff's claims for breach of
contract, negligence,
on June 16, 2010 (Docket No. 3). The Plaintiff alleges that Citizens Bank discriminated against him and
his business due to his race in the terms and conditions of loans provided to the Plaintiff by Citizens Bank
in Hartsville, Tennessee. Plaintiff also alleges that Citizens Bank engaged in fraudulent business practices
with regard to loan and property transactions. The Plaintiff further alleges that Citizens Bank engaged in
a conspiracy to shut down the Plaintiff's business, which led to the Plaintiff being unable to make timely
payments on the loans provided to him by Citizens Bank and,
activity" here. Plaintiffs' reliance on Superior Bank v. Tandem National Mortgage, Inc., 197 F. Supp.2d
298 (D. Md. 2000), is similarly misplaced. In Superior Bank, numerous defendants involved in the real
estate industry (including mortgage brokers, title companies, and property appraisers) allegedly
engaged in a scheme to induce the plaintiff to purchase 23 mortgage loans at fraudulently inflated prices
on the secondary market. Id. at 307. In denying motions to dismiss, Judge Garbis reasoned that the
"relatedness" requirement was satisfied because, drawing all inferences in favor
the mortgage until the bank took possession of the property through a foreclosure action or he sold the
home to a co-conspirator at an inflated price—obtaining a second fraudulent mortgage loan from a
different lender in the process—taking the "equity" in cash. The scheme defrauded federally insured
banks and mortgage lending companies. Using false documentation supplied by Suggs, Carlos Crespo
purchased a multi-family property. After taking possession of the property, Crespo and his grandmother,
Aida Cardona-Cruz, who is now deceased, lived in downstairs apartments, while Suggs inhabited an
From the amount of purchases and sales made by these companies, the trial court was warranted in
finding that the companies employed a substantial amount of capital in the conduct and operation of
the local business. Mortgage loan companies, domestic corporations doing business in Seattle,
engaged in soliciting loans and lending money upon mortgages upon improved real estate. In many
instances, they issued and sold bonds secured by such mortgages. The capital, surplus and undivided
profits of such companies, on March 1, 1925, were $1,800,000, and on March 1, 1926, $1,950,000. On
March 1,
“The trustee is the agent for both parties to the deed of trust and occupies a fiduciary relationship as to
both.”
O'Neal v. Ketchum
no sale took place. Therefore, Ketchum and O'Neal remain cotenants of the property in question. In
Mississippi Real Estate Foreclosure Law, it is stated that “a mortgagee can purchase property at the
foreclosure sale under Mississippi law. However, ... the trustee is the agent for both parties to the deed
of trust and occupies a fiduciary relationship as to both.” K.F. Boackle, Mississippi Real Estate
Foreclosure Law § 4–8, at 43 (2d ed.2002). ¶ 24. It is further recommended that, “[i]n the event the
mortgagee is not present, [the trustee should] accept [mortgagee's]bid as specified in his
Lee v. Lee
(Hn 1) The appellant admits that it is the general rule that a trustee cannot himself buy land at a
foreclosure sale when he is the trustee making the sale. Such is generally recognized by the authorities.
The trustee in a deed of trust is the agent of both parties, and he therefore occupies a fiduciary
relationship to both parties. Rawlings v. Anderson, et al., 149 Miss. 632, 115 So. 714. The rule is founded
upon public policy. In 37 Am. Jur., Mortgages, page 96, it is said: "A person who stands in the relation of
attorney in fact to both debtor and creditor is estopped from purchasing the
Wilson v. Irwin
law, and the statutes applicable to trustees of express trusts do not apply to deeds of trust. The trustee
of a deed of trust does not possess the personal confidence for the benefit of another required for a
true trust relationship.' [Citations.] A trustee therefore, while an agent for both the beneficiary and the
trustor, does not stand in a fiduciary relationship to either. [Citation.]" (Id. at pp. 1111-1112.) "It is true . .
. that a trustee has a general duty to conduct the sale 'fairly, openly, reasonably, and with due diligence,'
exercising sound discretion to protect the rights of the
the best possible price. The exercise of reasonable business prudence on the part of the trustee in
acceptance of cash equivalents would protect all parties under the statutory scheme, as the statute now
expressly recognizes. (3b) It is conceded by the parties that the trustee under a deed of trust, while not a
fiduciary, is the agent of both the beneficiary and the trustor. ( Lupertino v. Carbahal (1973) 35
Cal.App.3d 742, 747 [ 111 Cal.Rptr. 112].) Courts have also enunciated a duty in the trustee in the
conduct of a sale itself. "A sale under a power in a mortgage or trust deed must be
Hatch v. Collins
trust relationship." (4 Miller Starr, op. cit. supra, § 9.3, at pp. 13-14, italics added; see also Hollis, supra,
196 Cal.App.3d at pp. 955-956, holding that trustee may acquire the property at a foreclosure sale for
his own benefit.) A trustee therefore, while an agent for both the beneficiary and the trustor, does not
stand in a fiduciary relationship to either. ( Baron v. Colonial Mortgage Service Co. (1980) 111 Cal.App.3d
316, 323 [ 168 Cal.Rptr. 450].) (1d) It is true, as the Hatches repeatedly point out, that a trustee has a
general duty to conduct the sale "fairly, openly, reasonably,
The trustee of a deed of trust is not a true trustee with fiduciary obligations, but acts merely as an agent
for the borrower-trustor and lender-beneficiary. (Biancalana v. T.D. Service Co., supra, 56 Cal.4th at p.
819, 156 Cal.Rptr.3d 437, 300 P.3d 518; Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668,
677, 86 Cal.Rptr.2d 490.) While it is the trustee who
confidence.'" A. Teixeira Co. v. Teixeira, 699 A.2d 1383, 1387 (R.I. 1997) (citing Francis X. Conway, The
New York Fiduciary Concept in Incorporated Partnerships and Joint Ventures, 30 Fordham L. Rev. 297,
312 (1961)). An escrow agent has a fiduciary duty to hold the funds pursuant to the terms of the escrow
agreement; he is not an agent to either party, but a fiduciary to both of them. Kaarela v. Birkhead, 33
Mass. App. Ct. 410, 412, 600 N.E.2d 608 (citing Restatement (Second) of Agency § 14D app., reporters
note at 60 (1958)). The relevant inquiry thus becomes McAteer's status as an escrow
on a residential mortgage. "[A] trustee under a deed of trust owes fiduciary duties both to the
noteholder and to the borrower." Perry v. Virginia Mortgage and Investment Co., Inc., 412 A.2d 1194,
1197 (D.C. 1980) (internal citation omitted). "Substitute trustees under a deed of trust have, of course, a
fiduciary relationship with both the lender and the borrower." Basiliko v. Pargo Corp., 532 A.2d 1346,
1349 n. 3 (D.C. 1987). "[A]s a general proposition, trustees of deeds have only those powers and duties
imposed by the trust instrument itself, coupled with the applicable statute governing
Brueggemann v. Hodges
The complaint as amended also asserts a claim for relief against RPW for an alleged breach of a fiduciary
duty related to the nonjudicial foreclosure of Brueggemann's condominium. A trustee on a deed of trust
acts as a fiduciary for both the debtor and the creditor. Meyers Way Dev. Ltd. P'ship v. Univ. Sav. Bank,
80 Wn. App. 655, 665, 910 P.2d 1308 (1996) (citing Cox v. Helenius, 103 Wn.2d 383, 389, 693 P.2d 683
(1985)). One objective of the deed of trust act is to "provide an adequate opportunity for interested
Substitute trustees under a deed of trust have, of course, a fiduciary relationship with both the lender
and the borrower. Perry v. Virginia Mortgage and Investment Co., 412 A.2d 1194, 1197 (D.C. 1980);
National Life Insurance Co. v. Silverman, 147 U.S.App.D.C. 56, 72, 454 F.2d 899, 915 (1971); Sheridan v.
Perpetual Building Association, 112 U.S.App.D.C. 82,
510 [ 163 P. 898], "A trustee under a deed of trust does not assume the important obligations which are
in some instances cast upon a trustee by operation of law. An ordinary trust deed is little more than a
mortgage with power to convey. . . . A trustee under an ordinary deed of trust is the common agent of
both parties and is required to act impartially. . . . Some authorities hold that he is not a trustee at all in a
technical sense." With respect to foreclosure, it has been held that no constitutional right of the parties
is violated by the application of a statute, subsequently enacted,
Cox v. Helenius
Lovejoy v. Americus, 111 Wn. 571, 574, 191 P. 790 (1920); Miebach v. Colasurdo, 102 Wn.2d 170, 685
P.2d 1074 (1984). Because the deed of trust foreclosure process is conducted without review or
confirmation by a court, the fiduciary duty imposed upon the trustee is exceedingly high. [4] Washington
courts do not require a trustee to make sure that a grantor is protecting his or her own interest.
However, a trustee of a deed of trust is a fiduciary for both the mortgagee and mortgagor and must act
impartially between them. G. Osborne, G. Nelson D. Whitman, Real Estate Finance Law § 7.21 (1979)
have no relationship with each other. The sale is pursuant to a contract between the grantor, the
beneficiary and the trustee. The junior lienholder is not a party to that contract. The case law indicates
only that the trustee owes a fiduciary duty to the debtor and beneficiary: `a trustee of a deed of trust is a
fiduciary for both the mortgagee and mortgagor and must act impartially between them.' Cox, 103
Wn.2d at 389. The fact that a sale in accordance with that contract can extinguish the junior lienholder's
interest further shows that the grantor's and beneficiary's interest in
A trustee of a deed of trust is nonetheless a fiduciary for both the mortgagee and mortgagor and must
act impartially between them. Cox v. Helenius, 103 Wn.2d 383, 389, 693 P.2d 683 (1985). The trustee
must present every possible advantage to the debtor as well as the creditor. Id. In doing so, the trustee
must use good faith and "'every requisite degree of
that the indemnity agreement was a breach of Jones's fiduciary duty, per se, as a matter of law, because
the effect was to allow Jones to violate the grantors' rights with impunity, knowing he would be
indemnified by the Bank. [2, 3] A trustee of a deed of trust acts as the fiduciary for both the creditor and
debtor on a deed of trust, so must act impartially between them. Cox v. Helenius, 103 Wn.2d 383, 389,
693 P.2d 683 (1985). Because a deed of trust foreclosure is a nonjudicial proceeding, the trustee's
fiduciary duty to the debtor is "exceedingly high." Cox, 103 Wn.2d at 388-89. Despite
156 N.C. App. 477 (N.C. Ct. App. 2003) Cited 23 times
to authorize foreclosure, namely (1) a valid debt, (2) default, (3) right to foreclose under the instrument,
and (4) notice to all parties so entitled. N.C. Gen. Stat. § 45-21.16(d) (2001). We find no merit in
respondents' argument. "In deed of trust relationships, the trustee is a disinterested third party acting as
the agent of both the debtor and the creditor." In re Proposed Foreclosure of McDuffie, 114 N.C. App.
86, 88, 440 S.E.2d 865, 866 (1994). In a foreclosure proceeding, the trustee is charged with the duty to
effect service of the notice of hearing. N.C. Gen. Stat. § 45-21.16(a)
aside and declared void. Because the trustee plays such a crucial role in a foreclosure sale, the
controlling question is whether Trustee Willis acted properly with respect to the sale involved in this
case. The general rule concerning the position of a trustee under a deed of trust is that the trustee is a
fiduciary for both debtor and creditor and must act impartially between them. Rohrer v. Strickland, 116
Va. 755, 759, 82 S.E. 711, 712 (1914); Linney v. Normoyle, 145 Va. 589, 593, 134 S.E. 554, 555 (1926).
Implicit in this rule is the proposition that a trustee must refrain from placing
the acting trustee at a foreclosure sale notified an official in a company in which he owned stock that the
sale was to take place. The trustee's company was the successful bidder. The owners of the property
sued to set aside the sale. In holding that the sale should have been set aside, we stated the following
pertinent principles: 1. A trustee under a deed of trust is a fiduciary for both debtor and creditor and
must act impartially between them; 2. A trustee must not place himself in a position where his personal
interest conflicts with the interests of those for whom he acts as fiduciary;
The loan from the bank constituted a personal loan and not a home mortgage:
“ It is axiomatic that plaintiff has standing to sue if it was the lawful holder of the note and mortgage
when the action was commenced. Mortgage Electronic Registration Systems, Inc. v Coakley , 41 AD3d
674 (2nd Dept 2007). The crucial issue then is whether the written assignment, dated after the
commencement of the action but stated to be effective on a date before the commencement, was
effective to give plaintiff the requisite interest in the mortgage and thus standing to commence an
action to foreclose it. Recently, finding such post-commencement dated assignments ineffective, several
trial level courts have said "no". Countrywide Home Loans, Inc. v Taylor , 17 Misc 3d 595 (Sup Ct, Suffolk
County 2007) [Foreclosure action commenced by filing February 6, 2007 — assignment of mortgage
executed March 6, 2007]; Countrywide Home Loans, Inc. v Hovanec, 15 Misc 3d 1115 (A) (Sup Ct, Suffolk
County 2007) [Foreclosure action commenced by filing July 5, 2006 — assignment of mortgage dated
August 4, 2006]. In response, plaintiff relies on Bankers Trust Co. v Hoovis, 262 AD2d 937 (3rd Dept
1999) which held that a post-commencement assignment had retroactive effect. The facts of Bankers
Trust Co. are similar but not identical to the facts here. ‘Again, here, plaintiff offers no evidence that it
took physical delivery of the note and mortgage before commencing this action, and again, the written
assignment was signed after defendant was served. The assignment's language purporting to give it
retroactive effect, absent a prior or contemporary delivery of the note and mortgage, is insufficient to
grant it standing. Deutsche Bank Trust Co. Americas v. Peabody, 2008 N.Y. Slip Op. 51286, 3 (N.Y. Sup. Ct.
2008)
Case No. 1:17-cv-00315 (GBL/JFA) (E.D. Va. May. 11, 2017) Cited 1 times
breach of that duty, and a showing that such breach was the proximate cause of injury, resulting in damage to the
plaintiff." Blue Ridge Serv. Corp. of Virginia v. Saxon Shoes, Inc., 624 S.E.2d 55, 62 (Va. 2006). "The general rule
concerning the position of a trustee under a deed of trust is that the trustee is a fiduciary for both debtor and
creditor and must act impartially between them." Whitlow v. Mountain Trust Bank, 207 S.E.2d 837, 840 (Va.
1974). "Implicit in this rule is the proposition that a trustee must refrain from placing himself in a position where his
personal interest conflicts
CASE No. 3:09-cv-00080 (W.D. Va. Feb. 11, 2010) Cited 18 times
and duties of SIWPC, as substitute trustee, "are limited and defined by the instrument under which [it] acts,"
meaning the Deed of Trust to the Property. Powell v. Adams, 18 S.E.2d 261, 262-63 (Va. 1942). "The general rule
concerning the position of a trustee under a deed of trust is that the trustee is a fiduciary for both debtor and
creditor and must act impartially between them." Whitlow v. Mountain Trust Bank, 207 S.E.2d 837, 840 (Va.
1974); see also Preston v. Johnson, 53 S.E. 1 (Va. 1906) ("It is well-settled doctrine in this jurisdiction that a trustee
for sale is the agent of both
Civil No. 3:14cv832 (DJN) (E.D. Va. Aug. 13, 2015) Cited 4 times
[t]he general rule concerning the position of a trustee under a deed of trust is that the trustee is a fiduciary for
both debtor and creditor and must act impartially between them. Rohrer v. Strickland, 116 Va. 755, 759, 82 S.E.
711, 712 (1914); Linney v. Normoyle, 145 Va. 589, 593, 134 S.E. 554, 555 (1926). Implicit in this rule is the
proposition that a trustee must refrain from placing himself in a position where his personal interest conflicts with
the interests of those for whom he acts a fiduciary.
aside and declared void. Because the trustee plays such a crucial role in a foreclosure sale, the controlling question is
whether Trustee Willis acted properly with respect to the sale involved in this case. The general rule concerning
the position of a trustee under a deed of trust is that the trustee is a fiduciary for both debtor and creditor and
must act impartially between them. Rohrer v. Strickland, 116 Va. 755, 759, 82 S.E. 711, 712 (1914); Linney v.
Normoyle, 145 Va. 589, 593, 134 S.E. 554, 555 (1926). Implicit in this rule is the proposition that a trustee must
refrain from placing
have no relationship with each other. The sale is pursuant to a contract between the grantor, the beneficiary and the
trustee. The junior lienholder is not a party to that contract. The case law indicates only that the trustee owes a
fiduciary duty to the debtor and beneficiary: `a trustee of a deed of trust is a fiduciary for both the mortgagee and
mortgagor and must act impartially between them.' Cox, 103 Wn.2d at 389. The fact that a sale in accordance with
that contract can extinguish the junior lienholder's interest further shows that the grantor's and beneficiary's interest
in
the acting trustee at a foreclosure sale notified an official in a company in which he owned stock that the sale was to
take place. The trustee's company was the successful bidder. The owners of the property sued to set aside the
sale. In holding that the sale should have been set aside, we stated the following pertinent principles: 1. A
trustee under a deed of trust is a fiduciary for both debtor and creditor and must act impartially between them; 2.
A trustee must not place himself in a position where his personal interest conflicts with the interests of those
for whom he acts as fiduciary;
Case No. C09-0149-JCC (W.D. Wash. Mar. 15, 2011) Cited 2 times
a trustee of a deed of trust is a fiduciary for both the mortgagee and mortgagor and must act impartially between
them. The trustee is bound by his office to present the sale under every possible advantage to the debtor as
well as to the creditor. He is bound to use not only good faith but also every requisite degree of diligence in
conducting the sale and to attend equally to the interest of the debtor and creditor alike.
Civil No. 3:14cv832 (DJN) (E.D. Va. Aug. 13, 2015) Cited 4 times
of action lies for a breach of fiduciary duty where the alleged fiduciary duty existed solely from a contractual
relationship. Augusta Mut. Ins. Co. v. Mason, 274 Va. 199, 207-08, 645 S.E.2d 290, 295 (2007). The Virginia
Supreme Court, however, has also indicated that a trustee under a deed of trust acts as "a fiduciary for both
debtor and creditor and must act impartially between them." Whitlow v. Mountain Trust Bank, 215 Va. 149, 152,
207 S.E.2d 837, 840 (1974) (citing linney v. Normoyle, 145 Va. 589, 593, 134 S.E. 554, 555 (1926); Rohrer v.
Strickland, 116 Va. 755, 759, 82 S.E. 711, 712
Cox v. Helenius
Lovejoy v. Americus, 111 Wn. 571, 574, 191 P. 790 (1920); Miebach v. Colasurdo, 102 Wn.2d 170, 685 P.2d 1074
(1984). Because the deed of trust foreclosure process is conducted without review or confirmation by a court, the
fiduciary duty imposed upon the trustee is exceedingly high. [4] Washington courts do not require a trustee to make
sure that a grantor is protecting his or her own interest. However, a trustee of a deed of trust is a fiduciary for both
the mortgagee and mortgagor and must act impartially between them. G. Osborne, G. Nelson D. Whitman, Real
Estate Finance Law § 7.21 (1979)
sale must be set aside because the trustee did not “refrain from placing himself in a position where his personal
interest conflicts with the interests of those for whom he acts as a fiduciary.” 207 S.E.2d at 840 ; id. (“The general
rule concerning the position of a trustee under a deed of trust is that the trustee is a fiduciary for both the debtor
and creditor and must act impartially between them.”). The Amended Complaint does allege that the White firm
violated a common law duty of impartiality. However, that allegation is conclusory and fails to meet the requisite
pleading standards. By
that the indemnity agreement was a breach of Jones's fiduciary duty, per se, as a matter of law, because the effect
was to allow Jones to violate the grantors' rights with impunity, knowing he would be indemnified by the Bank. [2,
3] A trustee of a deed of trust acts as the fiduciary for both the creditor and debtor on a deed of trust, so must act
impartially between them. Cox v. Helenius, 103 Wn.2d 383, 389, 693 P.2d 683 (1985). Because a deed of trust
foreclosure is a nonjudicial proceeding, the trustee's fiduciary duty to the debtor is "exceedingly high." Cox, 103
Wn.2d at 388-89. Despite
Case No. 4:13-CV-1354 (CEJ) (E.D. Mo. Jun. 13, 2014) Cited 1 times
held valid title as successor trustee prior to foreclosure. Defendant argues that plaintiffs failed to allege any facts to
show that it had a duty to protect plaintiff, or that a breach of that duty resulted in damages. "A trustee in a deed of
trust acts in a fiduciary capacity and he must act with complete integrity, fairness, and impartiality toward both the
debtor and the creditor. The duties and powers of a trustee are fixed by the terms of the contract, namely, the deed
of trust." Spires v. Edgar, 513 S.W.2d 372, 378 (Mo. 1974) (en banc). Accordingly, the deed of trust must set forth
any
A trustee of a deed of trust is nonetheless a fiduciary for both the mortgagee and mortgagor and must act
impartially between them. Cox v. Helenius, 103 Wn.2d 383, 389, 693 P.2d 683 (1985). The trustee must present
every possible advantage to the debtor as well as the creditor. Id. In doing so, the trustee must use good faith and
"'every requisite degree of
following: (1) the existence of a fiduciary relationship between the parties; (2) breach of that duty; (3) causation; and
(4) harm. Zakibe v. Ahrens & McCarron, Inc., 28 S.W.3d 373, 381 (Mo. Ct. App. 2000). A fiduciary relationship
exists between the trustee of a deed of trust and both the debtor and creditor, and the trustee should "perform the
duties of the trust with impartiality and integrity." Killion v Bank Midwest, N.A., 987 S.W.2d 801, 813 (Mo. Ct.
App. 1998). When requested by the creditor to foreclose, "the trustee may proceed without making any affirmative
investigation unless the
that because the deed of trust does not contain any provision directing it to investigate the property's title, or clear
title if it becomes clouded, it owed no duty to Plaintiff which it could have breached. Under Missouri law, "[a]
trustee in a deed of trust acts in a fiduciary capacity and he must act with complete integrity, fairness, and
impartiality toward both the debtor and the creditor." Spires v. Edgar, 513 S.W.2d 372, 378 (Mo. 1974). "The
duties and powers of a trustee are fixed by the terms of the contract, namely, the deed of trust." Id. Where the deed
of trust does not contain a
Spires v. Edgar
knowledge. There is nothing alleged here which shows that the trustee actually knew of anything which should
legally prevent the foreclosure when he was directed to act. He did not receive any payments on the note. A trustee
in a deed of trust acts in a fiduciary capacity and he must act with complete integrity, fairness, and impartiality
toward both the debtor and the creditor. Edwards v. Smith, 322 S.W.2d 770 (Mo. 1959); West v. Axtell, 322 Mo.
401, 17 S.W.2d 328 (1929). The duties and powers of a trustee are fixed by the terms of the contract, namely, the
deed of trust. Adams v. Boyd, 332
after receiving said amount at a foreclosure sale, thus breaching his contractual and fiduciary responsibility. The
duties and powers of a trustee are fixed by the terms of the contract, namely, the deed of trust. A trustee in a deed of
trust acts in a fiduciary capacity and he must act with complete integrity, fairness, and impartiality toward both
the debtor and the creditor. Spires v. Edgar, 513 S.W.2d 372, 378 (Mo. banc 1974). Treating as true the allegations
that Woodward failed to pay over the excess proceeds from the foreclosure sale as required by the deed of trust,
Count I states a
B. Count II A trustee for a deed of trust acts in a fiduciary capacity and is required to act with "complete integrity,
fairness, and impartiality toward both the debtor and the creditor." Spires v. Edgar, 513 S.W.2d 372, 378 (Mo. banc
1974). The Hallquists allege that Millsap & Singer:
The grantors and beneficiary under the deed of trust were the real parties in interest and as such were named
defendants in the tax lien suit. See 26 U.S.C. § 7403(b) (1970). A trustee under a deed of trust is, of course, the
agent of both grantor and beneficiary, of debtor and creditor, and as such "is bound to stand neutral and impartial
between them." Stull v. Harvey, 112 Va. 816, 824, 72 S.E. 701, 704 (1911). Thus as a mere holder of legal title, the
trustee was not required to be present so long as both grantor and beneficiary were sui juris and were before the
court. Cf. id.
4 Cal.App. 131-135, [87 P. 343]; Hollywood Lumber Co. v. Love, 155 Cal. 270-273, [ 100 P. 698]; MacLeod v.
Moran, 153 Cal. 97-99, [ 94 P. 604]; Tyler v. Currier, 147 Cal. 31-36, [ 81 P. 319]; Weber v. McCleverty, 149 Cal.
316-321, [ 86 P. 706].) A trustee under an ordinary deed of trust is the common agent of both parties and is
required to act impartially. (Cook on Corporations, 7th ed., p. 3050; Jones on Mortgages, 6th ed., sec. 1771.) Some
authorities hold that he is not a trustee at all in a technical sense. (28 Am. Eng. Ency. of Law, 2d ed., p. 765.)
Appellant cites authorities to the
The Gossens' causes of action for violation of the provisions of the Deed of Trust Act (Wrongful Foreclosure,
Separation of Note and Deed of Trust, No Holder in Due Course) are subject to dismissal. The Gossens allege a
breach of a fiduciary duty. A trustee on a deed of trust acts as a fiduciary for both the debtor and the creditor.
Meyers Way Dev. Ltd. P'ship v. Univ. Sav. Bank, 80 Wash.App. 655, 665, 910 P.2d 1308 (1996); Cox v. Helenius,
103 Wash.2d 383, 389, 693 P.2d 683 (1985). The Gossens have failed to plead any facts that would support a
finding of a breach of the trustee's
Brueggemann v. Hodges
The complaint as amended also asserts a claim for relief against RPW for an alleged breach of a fiduciary duty
related to the nonjudicial foreclosure of Brueggemann's condominium. A trustee on a deed of trust acts as a
fiduciary for both the debtor and the creditor. Meyers Way Dev. Ltd. P'ship v. Univ. Sav. Bank, 80 Wn. App. 655,
665, 910 P.2d 1308 (1996) (citing Cox v. Helenius, 103 Wn.2d 383, 389, 693 P.2d 683 (1985)). One objective of the
deed of trust act is to "provide an adequate opportunity for interested
The general rule concerning the position of a trustee under a deed of trust is that the trustee is a
fiduciary for
of attorney's fees. Moreover, the aggrieved creditor is not left without a remedy, as it may, in
appropriate circumstances, bring an action for breach of fiduciary duty against the trustee. See id. at
665–66, 6 S.E.2d at 549–50. This Court long has recognized that the trustee of a deed of trust stands in a
fiduciary relationship with both the debtor and creditor. See, e.g., id. at 669–70, 6 S.E.2d at 552–53;
Gregg v. Williamson, 246 N.C. 356, 360, 98 S.E.2d 481, 485 (1957) (recognizing that “[t]he trustee must
be impartial in the performance of his duties” and cannot “give an unfair
Brueggemann v. Hodges
The complaint as amended also asserts a claim for relief against RPW for an alleged breach of a fiduciary
duty related to the nonjudicial foreclosure of Brueggemann's condominium. A trustee on a deed of trust
acts as a fiduciary for both the debtor and the creditor. Meyers Way Dev. Ltd. P'ship v. Univ. Sav. Bank,
80 Wn. App. 655, 665, 910 P.2d 1308 (1996) (citing Cox v. Helenius, 103 Wn.2d 383, 389, 693 P.2d 683
(1985)). One objective of the deed of trust act is to "provide an adequate opportunity for interested
deposit on the bid. In fact, there is no contract, and the high bidder has no contractual right for delivery
of the subject property, until the high bidder tenders the full purchase price. Id. at 316, 344 S.E.2d at
560. A deed of trust creates the trustee's rights and duties, and a trustee to a deed of trust only stands in
a fiduciary relationship with the creditor and debtor. If there is a high bidder at a foreclosure proceeding,
the trustee's only obligation to that bidder is to tender the deed upon payment of the purchase price.
Sprouse at 316, 344 S.E.2d at 559. Respondent has not cited
provision; (2) the Killions could not pay off the promissory note through refinancing until the contingent
interest dispute was decided; and (3) the Killions would lose their property and equity in the property if
a foreclosure sale was held. A fiduciary relationship does exist between the trustee of a deed of trust and
the debtor and creditor. Spires v. Edgar, 513 S.W.2d 372, 378 (Mo. banc 1974). The trustee is considered
to be the agent of both the debtor and creditor and should perform the duties of the trust with
impartiality and integrity. Edwards v. Smith, 322 S.W.2d 770, 777 (Mo
the trust agreement without exposing itself to liability. • 1, 2 In both the trust deed and the trust
agreement, the parties expressly provided for the creation of a trust relationship, and the provisions of
the trust instruments must be given effect. The fact that a trustee under a trust deed is a fiduciary has
been repeatedly recognized. ( E.g., White v. Macqueen (1935), 360 Ill. 236, 195 N.E. 832, 98 ALR 1115;
Meyer v. Kenmore-Granville Hotel Co. (1st Dist. 1941), 308 Ill. App. 78, 31 N.E.2d 330.) It has also been
said that the trustee of a trust deed is required by the fundamental law
the acting trustee at a foreclosure sale notified an official in a company in which he owned stock that the
sale was to take place. The trustee's company was the successful bidder. The owners of the property
sued to set aside the sale. In holding that the sale should have been set aside, we stated the following
pertinent principles: 1. A trustee under a deed of trust is a fiduciary for both debtor and creditor and
must act impartially between them; 2. A trustee must not place himself in a position where his personal
interest conflicts with the interests of those for whom he acts as fiduciary;
have no relationship with each other. The sale is pursuant to a contract between the grantor, the
beneficiary and the trustee. The junior lienholder is not a party to that contract. The case law indicates
only that the trustee owes a fiduciary duty to the debtor and beneficiary: `a trustee of a deed of trust is a
fiduciary for both the mortgagee and mortgagor and must act impartially between them.' Cox, 103
Wn.2d at 389. The fact that a sale in accordance with that contract can extinguish the junior lienholder's
interest further shows that the grantor's and beneficiary's interest in
Meyers Way v. University Savings
that the indemnity agreement was a breach of Jones's fiduciary duty, per se, as a matter of law, because
the effect was to allow Jones to violate the grantors' rights with impunity, knowing he would be
indemnified by the Bank. [2, 3] A trustee of a deed of trust acts as the fiduciary for both the creditor and
debtor on a deed of trust, so must act impartially between them. Cox v. Helenius, 103 Wn.2d 383, 389,
693 P.2d 683 (1985). Because a deed of trust foreclosure is a nonjudicial proceeding, the trustee's
fiduciary duty to the debtor is "exceedingly high." Cox, 103 Wn.2d at 388-89. Despite
Our emphasis on "negligence" analysis should not be taken as an implicit rejection of Wycalis's
contention that a trust deed trustee is a fiduciary held to a standard higher than one of ordinary care.
On the contrary, courts have recognized that a trust deed trustee is a fiduciary. See, e.g., McIntyre v.
Ticor Title Ins. Co., 658 F. Supp. 944, 950 (D.Alaska 1986); Hoffman v. First Bond Mort. Co., 116 Conn.
320, 164 A. 656, 658 (1933). See also Spruill v. Ballard, 58 F.2d 517, 519 (D.C.App. 1932) ("trustee named
in a deed of trust to
McHugh v. Church
While this California case may tend to slightly underemphasize the fiduciary nature of the obligation of
trustees under deeds of trust in the District of Columbia, it does point out the limited nature of the
powers and duties conferred on trustees by a deed of trust. However, it is well recognized in this
jurisdiction that a trustee under a deed of trust owes fiduciary duties both to the noteholder and to the
borrower.
the relevant facts; the claimed breach of fiduciary duty; and the requested relief. D.C. Code § 42-815
(2001) governs mortgage foreclosure sales and § 42-815.01 sets forth the procedure for a mortgagor to
cure a default on a residential mortgage. "[A] trustee under a deed of trust owes fiduciary duties both to
the noteholder and to the borrower." Perry v. Virginia Mortgage and Investment Co., Inc., 412 A.2d 1194,
1197 (D.C. 1980) (internal citation omitted). "Substitute trustees under a deed of trust have, of course, a
fiduciary relationship with both the lender and the borrower." Basiliko
A. In this jurisdiction "a trustee under a deed of trust owes fiduciary duties both to the noteholder and to
the borrower." S G Investment Inc. v. Home Federal Savings and Loan Association, 164 U.S.App.D.C. 263,
270 n. 21, 505 F.2d 370, 377 n. 21 (1974) (citing National Life Insurance Co. v. Silverman, 147
U.S.App.D.C. 56, 454 F.2d 899 (1971); Maynard v
O'Neal v. Ketchum
no sale took place. Therefore, Ketchum and O'Neal remain cotenants of the property in question. In
Mississippi Real Estate Foreclosure Law, it is stated that “a mortgagee can purchase property at the
foreclosure sale under Mississippi law. However, ... the trustee is the agent for both parties to the deed
of trust and occupies a fiduciary relationship as to both.” K.F. Boackle, Mississippi Real Estate
Foreclosure Law § 4–8, at 43 (2d ed.2002). ¶ 24. It is further recommended that, “[i]n the event the
mortgagee is not present, [the trustee should] accept [mortgagee's]bid as specified in his
Substitute trustees under a deed of trust have, of course, a fiduciary relationship with both the lender
and the borrower. Perry v. Virginia Mortgage and Investment Co., 412 A.2d 1194, 1197 (D.C. 1980);
National Life Insurance Co. v. Silverman, 147 U.S.App.D.C. 56, 72, 454 F.2d 899, 915 (1971); Sheridan v.
Perpetual Building Association, 112 U.S.App.D.C. 82,
Cox v. Helenius
Lovejoy v. Americus, 111 Wn. 571, 574, 191 P. 790 (1920); Miebach v. Colasurdo, 102 Wn.2d 170, 685
P.2d 1074 (1984). Because the deed of trust foreclosure process is conducted without review or
confirmation by a court, the fiduciary duty imposed upon the trustee is exceedingly high. [4] Washington
courts do not require a trustee to make sure that a grantor is protecting his or her own interest.
However, a trustee of a deed of trust is a fiduciary for both the mortgagee and mortgagor and must act
impartially between them. G. Osborne, G. Nelson D. Whitman, Real Estate Finance Law § 7.21 (1979)
Murray v. Wells Fargo Home Mortgage
on a residential mortgage. "[A] trustee under a deed of trust owes fiduciary duties both to the noteholder and to
the borrower." Perry v. Virginia Mortgage and Investment Co., Inc., 412 A.2d 1194, 1197 (D.C. 1980) (internal
citation omitted). "Substitute trustees under a deed of trust have, of course, a fiduciary relationship with both the
lender and the borrower." Basiliko v. Pargo Corp., 532 A.2d 1346, 1349 n. 3 (D.C. 1987). "[A]s a general proposition,
trustees of deeds have only those powers and duties imposed by the trust instrument itself, coupled with the
applicable statute governing
Johnson v. Nadel
217 Md. App. 455 (Md. Ct. Spec. App. 2014) Cited 13 times
have “discretion to outline the manner and terms of the sale, provided their actions are consistent with the deed
of trust and the goal of securing the best obtainable price.” Fagnani v. Fisher, 418 Md. at 384–85, 15 A.3d 282
(citations omitted). In short, there is no dispute that a trustee on a deed of trust is a fiduciary for all parties. The
question becomes whether the submission of the final offer of $650,000 should have compelled the trustees to
halt the sale or reopen it once they learned of the existence of the latest offer. On this record, we are not
persuaded that the trustees
Landberg v. Equity Trust Co.
A trustee of a deed of trust is nonetheless a fiduciary for both the mortgagee and mortgagor and must act
impartially between them. Cox v. Helenius, 103 Wn.2d 383, 389, 693 P.2d 683 (1985). The trustee must present
every possible advantage to the debtor as well as the creditor. Id. In doing so, the trustee must use good faith and
"'every requisite degree of
Lambrecht v. Lee
"It was designed for the benefit of holders of obligations under trust mortgages, usually the general public who rely
on others for financial guidance, and is to be given effect to that end." On its face this instrument contains all of the
elements of a trust mortgage. "No particular form of words, however, is required to create a trust, and whether one
exists is to be ascertained from the intention of the parties as manifested by the words used and the circumstances of
the particular case." 26 R. C. L. p. 1180.
191 Md. App. 482 (Md. Ct. Spec. App. 2010) Cited 12 times
omitted) (emphasis added). The deed of trust, executed on May 24, 2006, contains the names of the grantor and
grantee, the interest or estate intended to be granted, and it was executed and acknowledged on that date. R.P. § 4-
101(a). Thus, it contains all of the requisite attributes of a valid deed of trust, with the exception of a description of
the property. The parties clearly intended Exhibit A to provide the legal description of the property. The deed of
trust defines "land" as "all that lot of ground situated in Prince George's County, Maryland, as more particularly
described on
Leyva v. Natl. Default Serv., 125 Nev. Adv. Op. No. 40, 55216 (2011)
assignment, it claims that because it provided a certified copy of the deed of trust and a notarized statement from its
employee claiming that it was the rightful owner of the deed of trust, no written assignment was necessary. We
disagree. A deed of trust is an instrument that "secure [s] the performance of an obligation or the payment of any
debt." NRS 107.020. This court has previously held that a deed of trust "constitutes a conveyance of land as defined
by NRS 111.010." Ray v. Hawkins, 76 Nev. 164, 166, 350 P.2d 998, 999 (1960). The statute of frauds governs when
a conveyance creates
deed of trust in June 2007. At that time, the property in question was owned by SBD. Yet, the bank's deed of trust
lists SB Holdings as the grantor of the deed of trust. Anchor asserts that, as a result of this defect, the 2007 deed of
trust was void. We agree. A deed of trust is "a conveyance of an interest in real property to secure a debt." Levine v.
March, 266 S.W.3d 426, 438 (Tenn. Ct. App. 2007). It stands to reason that a person or entity cannot effectively
convey an interest it does not possess. Pursuant to Tenn. Code Ann. § 66-4-201, part of the champerty statutes, "[n]o
person shall
Paunescu v. Eckert
business assets for the trust, uses the trust's general assets for the purpose of the trust, and can guarantee "on behalf
of the trust" any loan to the business or secure a loan with "any other property of the trust." RCW 11.98.070(21)(e).
Thus, a trust can be a legal beneficiary of a deed of trust when it holds the promissory note secured by the deed of
trust. The Paunsecus point to inconsistencies in how the trust name is described, arguing that the deed of trust is
invalid because the loan proceeds came from "the Eckert Family Trust" but the quit claim deed granted the property
from "The
See e.g., Franklin Plant Farm, Inc. v. Nash, 118 Va. 98, 111, 86 S.E. 836, 840 (1915). We have construed deeds of
trust as mere liens, and permitted a grantor, as the holder of legal title, to maintain an action in ejectment.
Providence Properties, Inc. v. United Virginia Bank, 219 Va. 735, 748, 251 S.E.2d 474, 482(1979). The essence of a
deed of trust is that it creates a lien on property to secure a debt. Interstate Railroad Co. v. Roberts, 127 Va. 688,
692, 105 S.E. 463, 464 (1920). G. Glenn, Mortgages, Deeds of Trust and Other Security Devices as to Land Sec. 20
(1943) points out:
R.L.D.S. v. Thomas
religious documents do so in secular terms, rather than relying on religious precepts or concepts. Jones v. Wolf, 443
U.S. 595, 602-604, 99 S.Ct. 3020, 3024-3026, 61 L.Ed.2d 775 (1979); Presbytery of Elijah Parish Lovejoy v. Jaeggi,
supra at 473-474. A deed which simultaneously creates a trust and conveys land to a trustee is a valid trust
instrument. Restatement (Second) of Trusts § 17(b) (1959); Penrod v. Henry, 706 S.W.2d 537, 540-541 (Mo.App.
1986); Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022, 1028 (1926). In resolving latent ambiguities in deeds, the
trial court must determine the
304 Mich. App. 599 (Mich. Ct. App. 2014) Cited 16 times
§ 351, p. 2574.] In concluding that no trust existed, the circuit court emphasized that plaintiff had not identified a
separate document naming a “Duncan Park Trust.” The circuit court failed to consider that the trust deed itself
qualified as the trust document. The trust deed's language fulfills all the criteria necessary to create a trust.
Starting from the end, the document refers to itself as a “Trust Deed.” Our caselaw recognizes that a trust may be
created by a deed, with a document called a trust deed. In re Sweetser's Estate, 109 Mich. 198, 204, 67 N.W. 130
(1896). See also Thatcher v
Kagan v. Moody
trust, disclose the names of the beneficiary, or beneficiaries, and recite not only the subject and object of the trust,
but also the functions and duties of the trustee. See 89 C.J.S. Trusts Sec. 42, pages 771-772, where it is stated: `The
declaration must contain sufficient words to create the trust, and it must embody all the essential elements of a trust.
It must express the intention to create a trust * * * and state with certainty the terms, subject, persons, and object of
the trust; and it has been stated that the trustee must be authorized and directed to perform certain duties and
In re Certified Question
Such trusts are generally created by an instrument or instruments pointing out directly and expressly the property,
persons, and purpose of the trust, or by an agreement or contract between the parties expressing the intended trust.
The declaration must contain sufficient words to create the trust, and it must embody all the essential elements of a
trust. It must express the intention to create a trust . . . and state with certainty the terms, subject, persons, and object
of the trust; and it has been stated that the trustee must be authorized and directed to perform certain duties and
Chebatoris v. Moyer
real estate may be affected in law or equity." Neb. Rev. Stat. § 76-211 (Reissue 2003) lists the minimal requirements
for an instrument to qualify as a deed, including that it be signed by the grantor or grantors, and be acknowledged or
proved and recorded. Moyer's trust document satisfies each of the statutory requirements for a deed of real
property. Moyer signed the trust agreement as the settlor of the trust, thus satisfying the requirement of signature by
the grantor of the property. Moyer and Ron also signed the agreement as cotrustees, indicating their acceptance of
the trusteeship. The
Smehyl v. Hammond
the holding by the Chancellor below, confirming the report of the General Master, to the effect that a conveyance
from X to Y, as trustee for A, B, and C, in and of itself created a valid express trust. A trust may be created by the
execution of a conveyance in trust. The conveyance, however, must contain the essential elements of a trust. One of
these so-called essentials is an intention of the settlor specifically to create a trust and not to do something else. Vol.
1, Bogert on Trusts and Trustees, § 45, et seq. With respect to the instrument before us, the only intent, as shown by
all the
Chebatoris v. Moyer
The district court did not err in granting summary judgment for Brad, Dan, and db Ag Land. The trust agreement
executed by Moyer fulfills the statutory requirements for a deed in land, and the language is unambiguous.
Similarly, the trust document operated to transfer Moyer's personal property to the trust. We therefore affirm the
decision of the Otoe County District Court.
191 Md. App. 482 (Md. Ct. Spec. App. 2010) Cited 12 times
omitted) (emphasis added). The deed of trust, executed on May 24, 2006, contains the names of the grantor and
grantee, the interest or estate intended to be granted, and it was executed and acknowledged on that date. R.P. § 4-
101(a). Thus, it contains all of the requisite attributes of a valid deed of trust, with the exception of a description of
the property. The parties clearly intended Exhibit A to provide the legal description of the property. The deed of
trust defines "land" as "all that lot of ground situated in Prince George's County, Maryland, as more particularly
described on
no set phrases, and require only that they be in praesenti, expressed in unequivocal language, admit of but one
reasonable interpretation; and that settlor, intent, property, object, consideration, and beneficiaries appear with
reasonable certainty. This trust deed satisfies every requirement of equity to constitute a declaration of the trust as
aforesaid. In so far as terms are concerned, they might be proven by parol, and are found in the deeds of the lands to
the vendees for whose benefit the trust was created. Adverting to the circumstances, the settlor was promoting an
irrigated lands
Civil Action No. 01:10-cv-848 (E.D. Va. Sep. 7, 2011) Cited 4 times
an essential purpose of the contract." Horton v. Horton, 254 Va. Ill, 115 (Va. 1997). GMACM states in its letter that
Plaintiffs "have the right to assert or defend the non-existence of a default and you may have other rights under state
law . . . ." This language materially complies with the deed of trust and is sufficient under Virginia law. It provides
Plaintiffs with reasonable notice regarding the right to assert a legal defense despite the absence of the words "to
bring a court action." Although Plaintiffs argue that GMACM's failure to include this exact language is of
consequence, any
304 Mich. App. 599 (Mich. Ct. App. 2014) Cited 16 times
We evaluate the trust deed against this legal backdrop. To survive the statute of uses the writing had to create an
active trust. The trust deed fulfills this requirement. Moreover, the language of the document is quintessentially that
of a trust designed to place fee ownership of the land in the trustees rather than in the beneficiary.
Hogg v. Clemmons
and the children of Judson Briggs. That a trust was intended to be created by Sarah Hogg sufficiently appears from
the preamble of the deed, from the conveyance to Judson Briggs as Trustee, and from the statement of the terms of
the trust. Even if the deed does not in terms create a trust, it is sufficient evidence in writing of the creation of the
trust. It is not essential that the trust be created in writing under the Statute, Civil Code 1922, § 5453; it is sufficient
if it be "manifested and proved" thereby. Elliott v. Mackorell, 19 S.C. 238. Rutledge v. Smith, 1 McCord, Eq., 119.
Brown
estate, including homestead, may create a tenancy by the entirety by conveying a deed to both spouses as joint
holders of title. Fla. Stat. § 689.11(1). The Florida Constitution expressly permits homestead property to be
conveyed in this manner. See Fla. Const., art. X, § 4 (c). The 2007 Deed satisfies these requirements. It is in writing,
it is signed by Linda Morales and it is subscribed to by two witnesses. Nevertheless, Linda Morales argues that the
2007 Deed is invalid because (1) there are discrepancies in the names used to transfer title to the Property; and, (2)
she did not intend to
Reagh v. Kelley
and discretion vested in the trustee regarding the administration, management, and investment of the trust res and the
distribution and payment of the trust income to Muller. In view of the foregoing we conclude that the Declaration
suffices to create a trust which binds the trustee since it contains with reasonable certainty all the elements required
by section 2222 and the requirements of certainty as to its material terms. We thus have the creation of a trust with
Kelley as trustee to hold in trust for the purposes therein and stated for the benefit of the beneficiaries therein
designated,
Reagh v. Kelley
In holding that a valid trust was created we are in essence determining that the Declaration, in conjunction with the
Deed as a conveyancing instrument, satisfies the essentials of a valid express trust. In making this determination our
consideration has been limited to the matters herein discussed having to do with the creation of a valid trust. We
observe, in this regard, that the trial court
{¶105} Our construction of the warranty deed is not altered by the terms of the general agreement or the memo of
understanding. {¶106} The Supreme Court of Ohio has held that "'[i]n order to engraft a trust upon an absolute
deed, the declaration of such trust must be contemporaneous with the deed, and the evidence relied upon must be
clear, certain and conclusive and must establish the existence of the trust beyond a reasonable doubt.'" Gammarino
v. Hamilton Cty. Bd. of Revision, 84 Ohio St.3d 155, 158, 702 N.E.2d 415 (1998), quoting Hill v. Irons, 160 Ohio
St. 21, 113 N.E.2d
Berry v. McCourt
There have been numerous comments to the effect that the trust instrument here created something which resembles
a corporation. It is not a corporation, and it is not helpful to analogize it to corporate law or to use corporate terms.
The plain fact is that the instrument meets all the obvious prerequisites of a valid private trust. See 54 American
Jurisprudence, 43, Trusts, Section 30, and 89 Corpus Juris Secundum 775, Trusts, Section 43. There was a person
competent to create a trust. The instrument shows an unequivocal intent to do so. There is a corpus and a complete
Lambrecht v. Lee
"It was designed for the benefit of holders of obligations under trust mortgages, usually the general public who rely
on others for financial guidance, and is to be given effect to that end." On its face this instrument contains all of the
elements of a trust mortgage. "No particular form of words, however, is required to create a trust, and whether one
exists is to be ascertained from the intention of the parties as manifested by the words used and the circumstances of
the particular case." 26 R. C. L. p. 1180.
Poag v. Winston
"Summary of Terms of Laura Winston Irrevocable Charitable Remainder Unitrust" was duly executed by Mr.
Weingart on October 21, 1974. He evidenced a clear intent to create a binding written agreement and his signature
was witnessed by William S. Kroger and Luta King. That document contains all essential elements of a valid
declaration of trust. It identifies the trustor, the trustees, the beneficiary (respondent for the remainder of her lifetime
and an existing charitable trust thereafter), the corpus ($2 million in tax-free municipal bonds), the benefits to be
enjoyed and the manner of their
The most recent pronouncement of the Supreme Court of Ohio upon this subject is in the case of Hill v. Irons, 160
Ohio St. 21, 113 N.E.2d 243, 245. The first syllabus of this case reads as follows: "In order to engraft a trust upon
an absolute deed, the declaration of such trust must be contemporaneous with the deed, and the evidence relied
upon must be clear, certain and conclusive and must establish the existence of the trust beyond a reasonable doubt."
In the opinion, Middleton, J., quoted from Russell v. Bruer, 64 Ohio St. 1, 59 N.E. 740, as follows:
Andrusiak v. Buyle
trust, "the Trustee shall deliver to the Settlor all or the designated portion of the trust assets." This delivery was
accomplished by the 2007 trust and the concurrently executed assignment of property because they were sufficient
to transfer and deliver the property. (See ibid. [holding trust satisfied elements of a valid deed, including delivery].)
John seeks to support these arguments with testimony from the attorney who prepared the 2004 trust: "And this
states if the trust is revoked, the trustee—this is standard language, the trustee would deliver back to the settlor any
trust property
In re Estate of Brown
64.2-729(A)(1). "A trust is created only if: 1. [t]he settlor has capacity to create a trust . . . ; 2. [t]he settlor . . .
indicates an intention to create the trust; 3. [t]he trust has a definite beneficiary or is: a. A charitable trust . . ." Va.
Code § 64.2-720. The Brown Trust meets all the requisite elements of a valid trust. Broaddus v. Gresham, 181 Va.
725, 731 (1942) ("Any words 'which unequivocally show an intention that the legal estate was vested in one person,
to be held in some manner or for some purpose on behalf of another, if certain as to all other requisites, are
sufficient'
trust turns on compliance with certain minimum requirements: A deed of trust may be created, renewed or extended
only by a writing "executed with the formalities required in the case of a grant of real property." (Civ. Code, §
2922.) Thus, in accordance with this general rule, delivery to the beneficiary is requisite to the validity and
operation of a trust deed. Whether a deed of trust has been delivered depends on the intention of the parties.
Nevertheless, here, we are concerned not with the creation, renewal or extension of a deed of trust. While it is
common for the payoff and discharge
the principle that mortgages may be made in various forms. Wherein, then, does the instrument in question fall short
of being a mortgage within the definitions and various descriptions given in the several provisions of the statute
cited? But it may also contain the elements of a trust deed, as described in the statute, and fall within the definition
of or embrace a trust. But is it any the less a mortgage? If the mortgage contains a power of sale to 'any other
person' than the mortgagee, and the Code says it may, it necessarily embraces a trust; but it does not necessarily
carry the right of
In trusts not charitable it is not always necessary that the cestui que trust should be in existence at the time of the
creation of the trust. 1 Perry on Trusts (7th Ed.), § 66. We think the mortgage contains the necessary elements of a
trust mortgage. The conveyance was made to the Federal Bond Mortgage Company, "but in trust nevertheless for
the benefit and security of any and all persons and parties and their respective successors, executors, administrators,
and assigns who may at any time hold any of the
Milbank v. Jones
provide that Jones should pay to Milbank five thousand dollars, but that "the said money (the receipt of which had
been acknowledged), to be returned to said Milbank in case the resolution shall not be passed and take effect before
the tenth of July next." Clearly such a transaction contains every element essential to the creation of a valid trust.
( Day v. Roth, 18 N.Y. 448 -453.) It is the tendency of judicial decision to discountenance all attempts to influence
the deliberations and determinations of public bodies and officers other than by arguments which, being openly
made, bear directly
People v. Holder
v. Davenport (1939) 13 Cal.2d 681, 690, 91 P.2d 892.) As defendant correctly points out, the investor's transaction
involved a loan of money to CFC with the expectation only of interest paid on the investment and repayment of the
initial investment. The transaction, however, includes the other elements of a deed of trust and a promissory note.
Because of these additional elements in the transaction, People v. Davenport is not controlling. The transactions in
question are undoubtedly securities under People v. [212 Cal.Rptr. 210] Schock, supra, 152 Cal.App.3d 379, 199
Cal.Rptr. 327. That
In trusts not charitable it is not always necessary that the cestui que trust should be in existence at the time of the
creation of the trust. 1 Perry on Trusts (7th Ed.), § 66. We think the mortgage contains the necessary elements of a
trust mortgage. The conveyance was made to the Federal Bond Mortgage Company, "but in trust nevertheless for
the benefit and security of any and all persons and parties and their respective successors, executors, administrators,
and assigns who may at any time hold any of the
A deed of trust is security "for the performance of an act" and constitutes a lien on real property. (Civ. Code, §
2920, subd. (a); see Monterey S.P. Partnership v. W. L. Bangham, Inc. (1989) 49 Cal.3d 454, 460; Dieckmeyer v.
Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 258.) A deed of trust often secures the
obligation to
Bart v. Sribnik
a decree holding that the title is good, and the defendant ordered to comply. From this decree this appeal is taken.
The plaintiff claims that the agreement between Casper Bart and his wife, though informal, is in effect a trust deed,
and words of inheritance are unnecessary. The agreement has no element of a trust deed. Casper Bart had a legal
obligation to support his wife, and she had a legal right to inchoate dower. It was agreed that all of the wife's claim
against her husband should be met by the use of the property turned over to her for her use during her life. No title
passed, nor is
250 Ill. App. 293 (Ill. App. Ct. 1928) Cited 1 times
appellants here, in their reply brief attempt to distinguish this case from Creighton v. Roe, supra, on the theory that
the deed in the Creighton case was a warranty deed and not a trust deed, as in the case before us. In legal effect there
is no difference between a warranty deed and a trust deed so far as delivery is concerned. A trust deed is a warranty
deed with a condition of defeasance on payment of the debt secured by the trust deed. The decree in the record is
amply supported by the probative force of the evidence, and consequently the decree of the circuit court is affirmed
Eardley v. Greenberg
intent from the absence of express permission for an agent to execute a notice of substitution of trustee. Our
conclusion is also consistent with the nature and purpose of deeds of trust and the role of the trustee in the statutory
scheme. A deed of trust is simply an instrument that conveys property to a trustee "to secure the performance of a
contract." A.R.S. § 33-801(5). "In practical effect, a deed of trust is little more than a mortgage with a power to
convey upon default." In re Bisbee, 157 Ariz. 31, 34, 754 P.2d 1135, 1138 (1988). "`[T]he trustee is generally held
to have bare legal
Andrusiak v. Buyle
trust, "the Trustee shall deliver to the Settlor all or the designated portion of the trust assets." This delivery was
accomplished by the 2007 trust and the concurrently executed assignment of property because they were sufficient
to transfer and deliver the property. (See ibid. [holding trust satisfied elements of a valid deed, including delivery].)
John seeks to support these arguments with testimony from the attorney who prepared the 2004 trust: "And this
states if the trust is revoked, the trustee—this is standard language, the trustee would deliver back to the settlor any
trust property
Brown v. Copp
of which such grantee had actual or constructive notice, or are reserved by the deed. ( Callahan v. Martin, 3 Cal.2d
110, 113, 114 [ 43 P.2d 788, 101 A.L.R. 871]; Standard Oil Co. v. J.P. Mills Organization, 3 Cal.2d 128, 132 [ 43
P.2d 797].) Generally, a valid deed of trust vests the whole estate in the trustee, subject to the execution of the trust.
(Civ. Code, § 863) However, every estate not embraced in an express trust, and not otherwise disposed of, is left in
the author of the trust or his successors. (Civ. Code, § 866) [4] A trustee's deed conveys the absolute legal title to the
A deed of trust is a conveyance of real property. I.C. § 45-1513. To be valid, a conveyance of property requires
delivery of the instrument. McLaws v. Casey, 88 Idaho 348, 353, 400 P.2d 386, 389 (1965); see also Walter E.
Wilhite Revocable Living Trust v. Northwest Yearly Meeting Pension Fund, 128 Idaho 539, 547, 916 P.2d
No. 1 CA-CV 17-0228 (Ariz. Ct. App. Feb. 22, 2018) Cited 1 times
also argues the court erred by denying his motion to "reverse" the trustee's sales of the properties. ¶13 "The deed of
trust scheme is a creature of statutes." BT Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 300, ¶ 9 (2012)
(quotation omitted). A deed of trust conveys property to a trustee "to secure the performance of a contract." A.R.S.
§ 33-801(8) (2018); see also Steinberger v. McVey ex rel. County of Maricopa, 234 Ariz. 125, 132, ¶ 25 (App.
2014). The borrower, or trustor, retains possession and enjoys the benefits of the property, but transfers "bare legal
title" to the
Bank in its capacity as the beneficiary under the trust deed in the federal suit. ¶ 8 In arguing whether Bates and the
Bank are privies, the parties rely on the statutory definitions of a trust deed, trustee, and beneficiary. A trust deed is
a “deed ... conveying real property to a trustee in trust to secure the performance of an obligation of the trustor ...
to a beneficiary.” Utah Code Ann. § 57–1–19(3) (LexisNexis 2010). The beneficiary is “the person ... designated in
a trust deed as the person for whose benefit a trust deed is given,” while the trustee is “a person to whom title to real
Chebatoris v. Moyer
real estate may be affected in law or equity." Neb. Rev. Stat. § 76-211 (Reissue 2003) lists the minimal requirements
for an instrument to qualify as a deed, including that it be signed by the grantor or grantors, and be acknowledged or
proved and recorded. Moyer's trust document satisfies each of the statutory requirements for a deed of real
property. Moyer signed the trust agreement as the settlor of the trust, thus satisfying the requirement of signature by
the grantor of the property. Moyer and Ron also signed the agreement as cotrustees, indicating their acceptance of
the trusteeship. The
Bitzenburg v. Bitzenburg
the purchase price of the property, that the house was not worth this amount, and that she had no "figures to go by"
in inserting this amount in the note and deed of trust. A deed of trust is not valid unless it is founded upon a
sufficient consideration. The existence of an obligation is an essential element of a valid deed of trust or mortgage.
Munday v. Austin, 358 Mo. 959, 218 S.W.2d 624 (en Banc); Cobble v. Garrison, 219 S.W.2d 393, 394 (Mo. Sup.)
and authorities cited therein. A note secured by a deed of trust prima facie imports a consideration, and respondent,
in her attack upon the
see also Sam Paulsen Masonry v. Higley, 276 Or. 1071, 1075, 557 P.2d 676 (1976) (mortgage or trust deed creates
only lien on real property). Indeed, a trust deed creates two distinct interests—a legal interest and a beneficial
interest. First, a trust deed “conveys an interest in real property to a trustee in trust to secure the performance of an
obligation.” ORS 86.705(7). That legal interest includes the power to sell the obligated property in the manner
prescribed in the statute on the grantor's default. ORS 86.710. However, if the trustee utilizes its power of sale, the
proceeds of the
are implicated. This state observes a "first in time, first in right" system of lien priorities where, generally,
competing enforceable interests have priority among themselves "according to the time of their creation." (§ 2897.)
As to determining the enforceability of such interests, a trust deed must sufficiently describe the property securing it
to be enforceable. ( Saterstrom v. Glick Bros. Sash, Door & Mill Co. (1931) 118 Cal.App. 379, 5 P.2d 21.) "To be
sufficient the description must be such that the land can be identified or located on the ground by use of the same."
( Edwards v
Shipp v. State
AL - Ct. Civ. App.AL - Ct. Crim. App.AK - Supr. Ct.AK - Ct. App.AZ - Supr. Ct.AZ - Ct. App.
1.
is unique in its provisions, scope and purpose, partaking of the nature of the grantor's last will and
testament. Respecting the law in the interpretation of wills, in Thurlow v. Berry, 249 Ala. 597 (604), 32
So.2d 526, 532, this court said: "It has been authoritatively stated that the intent and purpose of the
settlor of the trust is the law of the trust. Lovelace v. Marion Institute, et al., 215 Ala. 271, 272, 110 So.
381. And, again, ' "The fundamental and cardinal rule in the interpretation of wills is that the intention
of the testator, if not inconsistent with some established rule of
Farlow v. Adams
"It has been authoritatively stated that the intent and purpose of the settlor of the trust is the law of the
trust. Lovelace v. Marion Institute, et al., 215 Ala. 271, 272, 110 So. 381. And, again, `The fundamental
and cardinal rule in the interpretation of wills is that the intention of the testator, if not inconsistent
with some established rule of law
"The intent and purpose of the settlor is the law of the trust." Albright v. United States, 308 F.2d 739, 743
(5th Cir. 1962). In determining the settlor's intent, consideration must be given to the language of the
instrument as a whole, rather than to isolated passages. Id. (construing inter vivos trust agreement);
Estate of
Thurlow v. Berry
without a deviation therefrom, and whether or not such deviation would foreshadow the ultimate
destruction of the trust, is a question of law and fact to be determined by the court in the light of the
evidence adduced on the trial. It has been authoritatively stated that the intent and purpose of the
settlor of the trust is the law of the trust. Lovelace v. Marion Institute et al., 215 Ala. 271, 272, 110 So.
381. And, again, " 'The fundamental and cardinal rule in the interpretation of wills is that the intention
of the testator, if not inconsistent with some established rule of law
wills, is the intention of the maker. As Chief Justice FULLER said in Y. W. C. H. v. French, 187 U.S. 401,
"the intention of a testator expressed in his will, or clearly deducible therefrom, must prevail if
consistent with the rules of law." The intention of a settlor of a deed of trust must likewise prevail if
consistent with the rules of law. It is clear that the testator had no intention of discriminating against any
of his children. It remains only to say that appellants' suggestion that the disputed deduction ought not
in any event to exceed the present value of a remainder interest
McPherson v. McPherson
307 Ga. App. 548 (Ga. Ct. App. 2011) Cited 17 times
concerning Howard's intended treatment of them. And the result of this exercise of discretionary power
was equal per stirpes distributions, keeping in reserve their capacity (as they later testified) to meet any
"extraordinary need" on "a case-by-case basis." "In trust law, the cardinal rule is that the trustor-settlor's
intention be followed." Griffith v. First Nat. Bank Trust Co., 249 Ga. 143, 146 (1) ( 287 SE2d 526) (1982).
As the Revised Trust Code and the common law agree, moreover, a court may interfere with an exercise
of discretion by a trustee only if that discretion is "infected with
you, reflects the meaning intended by Claire Clement Candler is a matter solely for your determination
based upon the evidence before you. Notwithstanding Reliance's argument otherwise, we cannot say
that the foregoing jury instruction was legally erroneous. "In trust law, the cardinal rule is that the
trustor-settlor's intention be followed." (Citation omitted.) McPherson, supra, 307 Ga. App. at 552 (1) (b);
see also Smith v. Hallum, 286 Ga. 834 ( 691 SE2d 848) (2010) ("The cardinal rule in construing a trust
instrument is to discern the intent of the settlor and to effectuate that intent
of Ms. Frazer. We first examine trust law to determine the trustee's duty in this matter and to whom this
duty was owed. Under Georgia law, as in most jurisdictions, "[a] trust may be created for any lawful
purpose." Ga. Code Ann. § 53-12-23 (1997). "In trust law, the cardinal rule is that the trustor-settlor's
intention be followed." Griffith v. First Nat'l Bank Trust Co., 287 S.E.2d 526, 529 (Ga. 1982), see also
Perling v. Citizens S. Nat'l Bank, 300 S.E.2d 649, 651 (Ga. 1983). In discerning the intent of the settlor in
an express trust, "we look first and foremost to the language
315 Ga. App. 495 (Ga. Ct. App. 2012) Cited 5 times
you, reflects the meaning intended by Claire Clement Candler is a matter solely for your determination
based upon the evidence before you. Notwithstanding Reliance's argument otherwise, we cannot say
that the foregoing jury instruction was legally erroneous. “In trust law, the cardinal rule is that the
trustor-settlor's intention be followed.” (Citation and punctuation omitted.) McPherson, supra, 307
Ga.App. at 552(1)(b), 705 S.E.2d 314; see also Smith v. Hallum, 286 Ga. 834, 691 S.E.2d 848 (2010) ( “The
cardinal rule in construing a trust instrument is to discern the intent of the settlor and
Hasty v. Castleberry
that the trial court erred in concluding that questions of fact remained as to whether he breached his
fiduciary duty by failing to diversify the Trust assets and retaining the Wachovia stock that comprised
nearly all of the Trust assets. We disagree. “In trust law, the cardinal rule is that the trustor-settlor's
intention be followed.” (Citations omitted.) Griffith v. First Nat. Bank & Trust Co., 249 Ga. 143, 146(1),
287 S.E.2d 526 (1982). Here, the Trust language specifies that “any investment made or retained by [the
Trustee] in good faith and with reasonable prudence shall be proper.”
argue that the encroachment language gave to First National broad discretion in determining the size
and frequency of encroachments against either trust. Consequently, they argue the trustee had the
power to charge the encroachments to either trust. We agree. In trust law, the cardinal rule is that the
trustor-settlor's intention be followed. Love v. Fulton Nat. Bank, 213 Ga. 887, 891 ( 102 S.E.2d 488)
(1958); McVay v. Anderson, 221 Ga. 381, 385 ( 144 S.E.2d 741) (1965). By giving First National the
discretion (1) to encroach upon either trust for Mrs. Griffith's support, (2) to determine the
Peterson v. Peterson
To begin, we note that "the cardinal rule in trust law is that the intention of the settlor is to be followed."
Rollins v. Rollins , 294 Ga. 711, 714, 755 S.E.2d 727 (2014). Moreover,
In re Estate of Warden
2010 Pa. Super. 121 (Pa. Super. Ct. 2010) Cited 14 times
by whom the title to the property is held to equitable duties to deal with the property for the benefit of
another person. . . ." In re Trust of Hirt, 832 A.2d 438, 447-48 (Pa.Super. 2003) (citing Restatement
(Second) of Trusts, § 2). The settled law in Pennsylvania is that "the pole star in every trust . . . is the
settlor's . . . intent and that intent must prevail." Estate of Pew, 440 Pa.Super. 195, 655 A.2d 521, 533
(1994) ( "Pew") (quoting In re Trust Estate of Pew, 411 Pa. 96, 106, 191 A.2d 399, 405 (1963)). The
settlor's intent may be divined by considering the trust document as a whole
Brozman v. Brozman
Brozman v. Brozman
B. General Rules Regarding Trust Interpretation Under Florida law, "the intent of the settlor of a trust is
controlling. [Citations.]" (Knauer v. Barnett (Fla. 1978) 360 So.2d 399, 405 (Knauer).) "However, it is the
intention which the testator expresses in the instrument that governs, not that which he might have had
in mind when it was executed. [Citation.]" (Barnett First Nat
1. Interpretation of Trusts "'[T]he primary rule in construction of trusts is that the court must, if possible,
ascertain and effectuate the intention of the trustor or settlor.' [Citation.] 'The intention of the transferor
as expressed in the [trust] instrument controls the legal effect of the dispositions made in the
instrument.'" (Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1206.) The following rules of construction
"apply where the intention of the transferor is not
Ostrosky v. Permann
Permann's wire and cable business. It thus concluded Ostrosky's work for Custom Model Products did
not satisfy the employment condition. We agree. " '[T]he primary rule in construction of trusts is that the
court must, if possible, ascertain and effectuate the intention of the trustor or settlor.' [Citation.] 'The
intention of the transferor as expressed in the [trust] instrument controls the legal effect of the
dispositions made in the instrument.' (Prob. Code, §§ 21101, 21102.)" (Crook v. Contreras (2002) 95
Cal.App.4th 1194, 1206.) "An ambiguity in a written instrument exists when, in light
intended by the Settlor, in which Riccardi would be willing and able to pay the fair market value of Jones'
one-half share of the Property's equity." " '[T]he primary rule in construction of trusts is that the court
must, if possible, ascertain and effectuate the intention of the trustor or settlor.' [Citation.] 'The intention
of the transferor as expressed in the [trust] instrument controls the legal effect of the dispositions made
in the instrument.' (Prob. Code, §§ 21101, 21102.)" (Crook v. Contreras (2002) 95 Cal.App.4th 1194,
1206.) " ' " 'The interpretation of a written instrument,
Freuler v. Freuler
Knauer v. Barnett
from Charles, William Barnett did not consider Charles to be his son. Consequently, William purportedly
did not intend, by use of the term "blood issue," that Charles receive the trust assets should he survive
the death of the former. This Court is cognizant of the well-established principle that the intent of the
settlor of a trust is controlling. West Coast Hospital Ass'n v. Florida National Bank, 100 So.2d 807 (Fla.
1958); Watson v. St. Petersburg Bank Trust Co., 146 So.2d 383 (Fla. 2d DCA 1962). However, unless the
trust instrument is ambiguous the intent of the settlor must be
This Court is cognizant of the well-established principle that the intent of the settlor of a trust is
controlling. However, unless the trust instrument is ambiguous the intent of the settlor must be
ascertained from that which lies within the four corners of the instrument itself, and no extrinsic
evidence of the settlor's intent is admissible. . . . No
trust's terms, it would certainly have been a breach of trust. But Hervey Aycock was also the creator of
the trust, as settlor, with fulsome powers to revoke it at any time at his discretion. Hence, he had the
power to terminate the trust on his own. It is axiomatic that the intent of the settlor is an important
consideration in enforcing a trust. Richards v. Worthen Bank Trust Co, 261 Ark. 890, 552 S.W.2d 228
(1977); Anderson v. Ryland, 232 Ark. 335, 336 S.W.2d 52 (1960). By not transferring the stock to his
children after they were educated and were age twenty-one or older, Aycock as settlor
1616 Second Avenue Restaurant, Inc. v. New York State Liquor Authority
e.g., Texaco, Inc. v Federal Trade Commn., 336 F.2d 754, supra; and Cinderella Career Finishing Schools v
Federal Trade Commn., 425 F.2d 583, supra]). Finally, we do not fault the Chairman for responding as he
did to the questions put to him. His agency is accountable to the Legislature and he therefore has an
obligation to respond to their inquiries. Having done so, however, especially in terms that pronounced
petitioner's guilt, he was obligated to recuse himself from the adjudicatory proceeding. Inasmuch as the
findings of the Administrative Law Judge are not compromised by the Chairman's
Limstrom v. Ladenburg
A basic policy of RCW 42.17 is to protect the public interest in "free and open examination of public
records." RCW 42.17.340(3). Thus, government agencies have a duty to respond promptly to disclosure
requests. RCW 42.17.320. One means of enforcing this duty is the requester's right to bring a motion
when that requester believes the agency has not given a reasonable estimate as to when it will respond
to the request. RCW 42.17.340(2). Then, the trial court, in its
has been notified that it must engage in an interactive process with the requestor to clarify and respond
to the request. Hobbs v. Wash. State Auditor's Office, 183 Wn. App. 925, 941 n.12, 335 P.3d 1004
(2014). Where an agency has been alerted to the fact that its statutory responsibilities have been
triggered, it is reasonable to hold the agency accountable for its responsiveness. By contrast, where an
agency has not been so alerted and, moreover, it is within the requestor's power to put the agency on
notice, it is unreasonable to hold the agency responsible for its lack of response. The
Com. v. Browne
a properly administered district attorney's office. Here, the District Attorney's Office "blew it" and they
did so because a routine diary or docket system was apparently not in place. That constitutes a failure to
exercise due diligence. It has been held that "due diligence" imposes the obligation on the government
to "read its mail and respond intelligently." United States v. Salzmann, 417 F. Supp. 1139, 1155
(D.C.E.D.N.Y., 1976). We hold that due diligence likewise imposes on the government the duty to
employ simple recordkeeping systems in circumstances such as this. Unlike Commonwealth v
Com. v. Payton
a properly administered district attorney's office. Here, the District Attorney's Office `blew it' and they
did so because a routine diary or docket system was apparently not in place. That constitutes a failure to
exercise due diligence. It has been held that `due diligence' imposes the obligation on the government to
`read its mail and respond intelligently.' United States v. Salzmann, 417 F. Supp. 1139, 1155
(D.C.E.D.N.Y., 1976). We hold that due diligence likewise imposes on the government the duty to
employ simple recordkeeping systems in circumstances such as this. Unlike Commonwealth v
The Tax Claim Bureau had a duty to respond to the Taxing Districts' directive. Indeed, once the taxes
were paid, at least in part, the factual basis to the Tax Claim Bureau's petition evaporated, creating a
responsibility in the Tax Claim Bureau to take some action even without the Taxing District's directive.
Sargent v. Seattle Police Deparment
¶ 18 The statute, however, does not say that. The purpose of the PRA is to provide full public access to
existing, nonexempt records. The legislature requires agencies of government to respond to requests in
a timely and clear fashion. But it does not require that agencies provide updates to previous responses,
or monitor whether documents 167 Wash. App. 11 properly withheld as exempt may later become
subject to disclosure.
State v. Hogan
State and as a member of the Executive Branch, is ultimately answerable to the people. That is not to
suggest that the Attorney General may denigrate or act in derogation of individual rights to satisfy public
opinion or for political considerations. But the Attorney General owes the duty to respond to the
legitimate concerns of the citizenry. The judiciary has no power to ordain that the Attorney General be
insensitive to such public concerns. The sad but true fact is that a substantial segment of the public
doubts the ability and willingness of the law enforcement community to enforce the
deadline for the City to request a ruling under section 552.301(b) was merely tolled during the period
the City was waiting for a response from Hill, and did not reset once the City received Hill's clarification.
According to the Attorney General, such a construction is necessary to ensure that governmental bodies
comply with their duty to respond promptly to requests for public information. See TEX. GOV'T CODE §
552.221(a). If the ten-day period were reset rather than tolled by a clarification request, the Attorney
General argues, governmental bodies could extend the deadline to respond to a
224 Mich. App. 370 (Mich. Ct. App. 1997) Cited 30 times
response has been allowed or has expired is a jury question. However, where reasonable minds cannot
differ, summary disposition is appropriate. We do not mean to imply by this holding that an insurer may
procrastinate in responding to its insured. Insurers have a duty to respond to correspondence and
queries from their insureds in a reasonably timely manner. However, insureds must also afford the
insurance company a reasonable time to offer a response, particularly before taking any action that
conflicts with the explicit terms of the policy. In the present case, plaintiffs' counsel allowed
People v. Bergerud
conflicts be used to obstruct the orderly administration of justice. See, e.g., John Doe No. 1, 272 F.3d at
122. Of course, a defendant's conduct is often bridled by an impression that he must engage a court
through his lawyers. As such, a defendant will be held to have discharged his duty where he makes a
reasonable effort to bring the matter to the court's attention. During the six months leading up to the
trial, the trial court held several hearings on pre-trial motions, with Bergerud present, at which
Bergerud's court-appointed attorneys examined potential trial witnesses. In doing so,
RCW 42.17.340(3). The agency bears the burden of proving that refusing to disclose "is in accordance
with a statute that exempts or prohibits disclosure in whole or in part of specific information or
records". RCW 42.17.340(1). Agencies have a duty to provide "the fullest assistance to inquirers and the
most timely possible action on requests for information". RCW 42.17.290. Finally, agencies "shall not
distinguish among persons requesting records, and such persons shall not be required to provide
information as to the purpose for the request" except under very limited circumstances. RCW
are to take into account the Act's policy "that free and open examination of public records is in the
public interest, even though such examination may cause inconvenience or embarrassment to public
officials or others". RCW 42.17.340(3). The agency bears the burden of proving that refusing to disclose
"is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific
information or records". RCW 42.17.340 (1). Agencies have a duty to provide "the fullest assistance to
inquirers and the most timely possible action on requests for information". RCW 42.17.290
RCW 42.17.340(3). The agency bears the burden of proving that refusing to disclose "is in accordance
with a statute that exempts or prohibits disclosure in whole or in part of specific information or
records". RCW 42.17.340(1). Agencies have a duty to provide "the fullest assistance to inquirers and the
most timely possible action on requests for information". RCW 42.17.290. Finally, agencies "shall not
distinguish among persons requesting records, and such persons shall not be required to provide
information as to the purpose for the request" except under very limited circumstances. RCW
In re A.G.
or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment
numbers; and other identifying data." (In re Francisco (2006) 139 Cal.App.4th 695, 703; In re Mary G.
(2007) 151 Cal.App.4th 189, 209.) To fulfill its responsibility, the Agency has an affirmative and
continuing duty to inquire about, and if possible obtain, this information. (In re S.M. (2004) 118
Cal.App.4th 1108, 1116; § 224.2, subd. (a)(5)(C); 25 C.F.R. 23.11(d)(3); rule 5.481(a)(4).) Thus, a social
worker who knows or has reason to know the child is Indian "is required to make further inquiry
Humboldt Cnty. Dep't of Health & Human Servs. v. Kate K. (In re Layla O.)
In re A.G.
204 Cal.App.4th 1390 (Cal. Ct. App. 2012) Cited 115 times
death; current and former addresses; tribal enrollment numbers; and other identifying data.” ( In re
Francisco (2006) 139 Cal.App.4th 695, 703, 43 Cal.Rptr.3d 171; In re Mary G. (2007) 151 Cal.App.4th 184,
209, 59 Cal.Rptr.3d 703.) To fulfill its responsibility, the Agency has an affirmative and continuing duty to
inquire about, and if possible obtain, this information. ( In re S.M. (2004) 118 Cal.App.4th 1108, 1116, 13
Cal.Rptr.3d 606; § 224.2, subd. (a)(5)(C); 25 C.F.R. 23.11(d)(3); rule 5.481(a)(4).) Thus, a social worker
who knows or has reason to know the child is Indian “is required to
ours.) The public disclosure act requires public agencies to make all "public records" available for public
inspection. The act requires agencies to "adopt and enforce reasonable rules and regulations . . . to
provide full public access to public records . . ." and permits agencies to "impose . . . reasonable
charge[s] for providing copies of public records. . . ." Agencies must make prompt response to requests
for public records. In addition, if the request for public disclosure is denied, "[d]enials of requests must
be accompanied by a written statement of the specific reasons" for denial
In re Omar H.
to intervene. (25 U.S.C. § 1912(a); see also § 224.3, subd. (b).) If the identity or location of the tribe
cannot be determined, the notice must be given to the Bureau of Indian Affairs (BIA). (25 U.S.C. §
1912(a).) Further, the social services agency has an affirmative and continuing duty to investigate and
obtain, if possible, the information necessary to give the required notices. (In re A.G. (2012) 204
Cal.App.4th 1390, 1396; § 224.2, subd. (a)(5)(C); 25 C.F.R. § 23.11(d)(3) (2015); Cal. Rules of Court, rule
5.481(a)(4).) A "minimal showing" is all that is required to trigger inquiry and
State v. Gonzalez
S.W.3d at 538. But it held that the State's immunity was waived under section 101.060(a)(2), because
the vandalism was "so severe and pervasive it constitutes a `condition' of the sign, signal or traffic
control device." 24 S.W.3d at 538. Under these circumstances, the court of appeals concluded, the State
"has a duty to respond to the [vandalism's] frequency." 24 S.W.3d at 538. The court of appeals also held
that, under section 101.060(a)(2), a plaintiff need not show "that the State had actual knowledge that
the sign was down on the day of the accident." 24 S.W.3d at 538. We granted TxDOT's
L.A. Cnty. Dep't of Children & Family Servs. v. Ashley J. (In re Destiny M.)
that "In order to establish tribal identity, it is necessary to provide as much information as is known on
the Indian child's direct lineal ancestors including, but not limited to, the information delineated at
paragraph (d)(1) through (4) of this section." (25 C.F.R. § 23.11(b) (2012), italics added.) The regulations
require inclusion of specified information, "if known" (25 C.F.R. § 23.11(d)(3) (2012), italics added;
accord, § 224.2, subd. (a)(5)(C).) Thus, the Department's obligation is to provide known and meaningful
information. (In re Francisco W., supra, 139 Cal.App.4th at p. 703.)
In re Destiny M.
that “In order to establish tribal identity, it is necessary to provide as much information as is known on
the Indian child’s direct lineal ancestors including, but not limited to, the information delineated at
paragraph (d)(1) through (4) of this section.” (25 C.F.R. § 23.11(b) (2012), italics added.) The regulations
require inclusion of specified information, “if known.” (25 C.F.R. § 23.11(d)(3) (2012), italics added;
accord, § 224.2, subd. (a)(5)(C).) Thus, the Department’s obligation is to provide known and meaningful
information. (In re Francisco W., supra, 139 Cal.App.4th at p. 703.)
Bonnette v. State
The plaintiffs' EMTALA claim clearly sounds in tort. Thus, the State has waived its immunity. Further, the
Louisiana Supreme Court has found that even though medical malpractice claims and "dumping" claims
may overlap, the federal cause of action arising from EMTALA is separate and distinct from a state
malpractice cause of action. Spradlin, 758 So.2d at 121. Next, MCLNO
Lee v. State
care leave, is not permitted or that employees would have no recourse if they were terminated or
retaliated against for taking self-care leave. Furthermore, the state employees testified they knew it was
illegal to terminate or retaliate against someone for using FMLA leave. Thus, the State has waived any
immunity through its conduct. The district court entered judgment against the State for the back-pay
damages as determined by the jury, in addition to reinstatement of employment and benefits, front pay,
liquidated damages, attorney fees, and educational training for supervisors.
Lee v. State
765 N.W.2d 607 (Iowa Ct. App. 2009) Cited 1 times
FMLA is explained in their personnel policies handbook and posted in the Clerk of Court's office.
Employees are aware that they have the right under the FMLA to take leave for their own illnesses.
Nowhere did Defendants indicate that one specific type of leave, self-care leave, is not permitted or that
employees would have no recourse if they were terminated or retaliated against for taking self-care
leave. Furthermore, State employees testified they knew it was illegal to terminate or retaliate against
someone for using FMLA leave. Thus, the State has waived any immunity through its conduct.
or not is to be considered, the claimants must establish negligence on the part of the state. Primarily,
the state is not liable for negligence; and this has been recently decided in the case of Smith v. State of
New York, 227 N.Y. 405, and many cases cited therein. And it can only be made liable when the state
waives its immunity. In this case the state has assumed liability and waived its immunity, but with the
proviso, however, in the legislative enactment assuming such liability that the state would only be liable
under the same circumstances and state of facts that individuals would be
235 App. Div. 275 (N.Y. App. Div. 1932) Cited 4 times
present form since long before State highways were thought of, and it clearly refers to town highways,
when, in speaking of the town's liability, it uses the words, "its highways." Who, if anybody, is liable for
injuries caused by reason of defects in State highways? The State is only liable where it waives its
sovereign immunity. By section 176 High. of the Highway Law the State waives immunity from liability
for such injuries occurring between May first and November fifteenth of any year. Section 176 further
provides, in substance, that liability for such injuries occurring between November
Imposing a duty on the state under § 7-163a would be tantamount to imposing liability on the state
because the breach of that duty would give rise to liability. Indeed, this court expressly has
acknowledged that a statute that imposes a duty on the state represents a waiver of the state's
sovereign immunity from liability with respect to a breach of that duty. See St. George v. Gordon, supra,
264 Conn. 550-51 (indicating that General Statutes § 5-141d, which imposes duty of indemnification on
state, waives state's sovereign immunity from liability);
treated by Department employees who negligently promised confidentiality and then ignored those
promises in disclosing his identity to suspects under investigation. The jury decided that he should be
compensated for injuries caused by the Department's negligence. The state, however, is liable only if its
governmental immunity has been waived. York holds that "the Legislature has not, by clear and
unambiguous language, eliminated governmental immunity for injuries resulting from the misuse of
information, even if that information is recorded in writing." Id. at 179. However unfairly Benson was
observes and protests, "[I]t is not the tangible physical file that counts, but the mental informational
content, which [the court] concludes is not 'tangible.' " Id. at 180. Appellee treated DeWitt poorly in the
handling of his worker's compensation claim. However, the state is liable only if its governmental
immunity has been waived. York holds that "the Legislature has not, by clear and unambiguous
language, eliminated governmental immunity for injuries resulting from the misuse of information, even
if that information is recorded in writing." Id. at 179. Because DeWitt's cause of action
More importantly, a State's "duty to negotiate" under IGRA cannot be enforced. A state may avoid its
duty, as Florida has effectively done, by asserting its immunity. Seminole Tribe, 517 U.S. at 47, 116 S.Ct.
1114. Therefore, although IGRA requires a state to negotiate, it does not impose any duty on a state's
governor. Moreover, IGRA does not prescribe the terms of a compact, see 25 U.S.C. § 2710(d), and it
does not
More importantly, a State's "duty to negotiate" under IGRA cannot be enforced. A state may avoid its
duty, as Florida has effectively done, by asserting its immunity. Seminole Tribe, 517 U.S. at 47, 116 S.Ct.
1114. Therefore, although IGRA requires a state to negotiate, it does not, impose any duty on a state's
governor. Moreover, IGRA does not prescribe the terms of a compact, see 25 U.S.C. § 2710(d), and it
does not
If a governmental entity is required to prepare a TIA and fails to do so, sovereign immunity to suit and
liability under the Act is waived "to the extent of liability created by [the Act]." Id. § 2007.004(a). A
governmental action requiring a TIA is void if the TIA is not prepared, and a "private real property owner
affected by a governmental action taken without the preparation of a [TIA]" may bring suit for a
declaration of the invalidity of the governmental action. Id. § 2007.044(a).
has been granted." 453 S.W.2d at 813. If the State did not waive immunity from liability by executing a
contract, then it would have no obligation at all to the contracting party for its breach. The State can
waive immunity from liability, thus recognizing its obligation, but retain immunity from suit, thereby
requiring that the party present its claim of obligation to the Legislature for its consent to sue. The
dissenting opinion may feel that the State ought to waive immunity from suit by executing a contract,
but there is nothing in the mere execution of a contract that expressly waives
2. The recognition that this concept should apply to the states has been woven into the fabric of the
United States constitution and our case law. See, e.g., U.S. Const., amend XI; Bergner v. State, supra.
Today, it is axiomatic that in the absence of a statute specifically waiving the state's immunity and
granting permission to sue, the state is protected from liability by its sovereign status. Struckman v.
Burns, supra, 558; Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963). Municipal immunity is
generally described as a court made rule and has its origins in the case of Russell v
for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act
by invoking the prohibitions of the Eleventh Amendment." Gunter v. Atlantic Coast Line Railroad Co.,
200 U.S. 273, 284 ( 26 Sup. Ct. 252, 50 L.Ed. 477). "The first question is whether the State has waived the
immunity it now claims. Immunity from suit under the Eleventh Amendment is a personal privilege
which may be waived." State of Missouri v. Fiske, 290 U.S. 18, 24 ( 54 Sup. Ct. 18, 78 L.Ed. 145). To the
foregoing authorities might be added innumerable others from the Federal courts
position under the law regarding mutual contractual obligations? There can be no doubt that if the State
chose to sue Green on the contract, the State would face no impediment to suit. Why should Green face
such an impediment? Our courts have declared that when the Legislature creates an agency with the
ability to "sue or be sued," the State waives its immunity from suit. See Industrial Constr. Management v.
DeSoto Indep. Sch. Dist., 785 S.W.2d 160 (Tex.App. — Dallas 1989, no writ). This waiver is premised on
the equitable principle that if an agency is entitled to take a private citizen to
RSMo 1986). Subsequent versions of Section 537.600 through 2005 clarified whether the inclusion of
interstate compact agencies as public entities retroactively applied to prior decisions. See Section
537.600.4-5, Cum. Supp. RSMo 1989. As a sovereignly immune public entity, Bi-State's immunity against
liability is waived only to the extent provided by statute. See Section 537.600.1; Brancati, 571 S.W.3d at
636. Missouri allows the waiver of sovereign immunity to the extent that the public entity insures
against judgment—but only to the extent insured. See Sections 537.600, .610; Brancati, 571
that the DNR is not merely an arm of the state and can consequently be sued as an "independent going
concern." "The legislature may create an agency with independent proprietary powers or functions and
sufficiently independent of the state to be sued as such. when the state so creates an agency, it waives
its sovereign immunity in that respect." Townsend v. Wisconsin Desert Horse Asso., 42 Wis.2d 414, 423,
167 N.W.2d 425 (1969). See also Majerus v. Milwaukee County, 39 Wis.2d 311, 159 N.W.2d 86 (1968);
Sullivan v. Board of Regents of Normal Schools, 209 Wis. 242, 244 N.W. 563 (1932); Metzger v
because it is a State administrative agency, an action for monetary damages cannot be maintained
against it in Supreme Court, thus necessitating the dismissal of this action based on a lack of subject
matter jurisdiction. Additionally, it argues that pursuant to the principle of "sovereign immunity," New
York State is wholly immune from suit unless it waives its sovereign immunity. Defendant further argues
that to the extent that this litigation seeks review of the March 9, 2012 DAFH, it can only be commenced
as a CPLR Art. 78 proceeding, which must be commenced within four months after the
Mitchell v. State
C.A. No. 08C-05-052 JRJ (Del. Super. Ct. Aug. 11, 2008)
6. The General Assembly has waived sovereign immunity in certain areas such as 18 Del. C. § 6511.
Under this provision, the State is deemed to have waived sovereign immunity where it has obtained
insurance to cover the alleged loss.
N.W.2d 431 (1967). However, there is no merit in Kegonsa's claim that the DNR is of such an
independent character that it comes under this traditionally narrow exception. The department, despite
its broad powers, is only an administrative body, an arm or agency of the state. The state's immunity
therefore extends to it. Plaintiff makes the vague assertion that the DNR might be amenable to suit on
an estoppel theory. Plaintiff's reliance on this doctrine is misplaced. As the court declared in Lister,
supra, 72 Wis.2d at 294: "As a general rule the legislature is the proper body to authorize
174 Wn. App. 615 (Wash. Ct. App. 2013) Cited 5 times
embezzles funds or commits manslaughter, because RCW 43.101.390 protects it from both civil and
criminal liability. But, even if these scenarios are very real, they result from a legislative policy choice.
Whether or not we agree with broad immunity for the CJTC as a matter of public policy is irrelevant.
Riksem v. City of Seattle, 47 Wash.App. 506, 511, 736 P.2d 275 (1987). The State has authority to
determine whether it will be immune from liability for its acts. Const. art. II, § 26. Therefore, any
challenge to the wisdom of such broad immunity is an issue to be taken to the legislature
Dillard v. Austin I. S. D
.107 (1986 Supp. 1991). An important corollary is that the state is generally not liable for the acts of
public servants. E.g., Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976); Whitfield v. City of
Paris, 84 Tex. 431, 19 S.W. 566, 567 (1892) (doctrine of respondeat superior does not apply against the
state); City of Galveston v. Posnainsky, 62 Tex. 118, 125 (1884); Tex.Civ.Prac. Rem. Code Ann. Secs.
104.001-.008 (1986 Supp. 1991) (state liability for conduct of public servants). A critical exception,
however, is that the state waives its immunity from liability when it contracts:
the LAD failure-to-accommodate claim had he known that defendant would assert sovereign immunity.
Plaintiff urges this Court to reinstate the claim because the ADA and the LAD failure-to-accommodate
claims are identical and implicate the same facts. Defendant emphasizes that only the State may define
the extent of its own sovereign immunity. Defendant also stresses that sovereign immunity is a well-
established defense to ADA claims in federal courts, and that plaintiff could have pursued both the LAD
and ADA claims for failure to provide reasonable accommodations. Defendant argues that,