Jennings Strouss Attorney Richard Lieberman Appointed to American Heart Association’s Board of Directors

Jennings Strouss is pleased to announce that Richard Lieberman, a member in the firm's Phoenix office, has been elected to the Board of Directors for the American Heart Association's (AHA) Greater Phoenix Division.

"I am honored to have this opportunity to help the American Heart Association continue its critical role in research, educationand legislative initiatives impacting the heart and stroke health of all Arizonans," said Lieberman."The work of the AHA impacts so many lives, and the Board continuously strives to broaden its reach."

The American Heart Association's mission is to build healthier lives, free of cardiovascular disease and stroke. Its dedication to reducing heart disease and stroke is approached through education, research and advocacy. Here in Phoenix, the AHA has a rich tradition of fighting heart disease and stroke. The organization has received tremendous success. Most work places in Arizona are smoke free, the redesigned Halle Heart Children's Museum educates more than 30,000 elementary school students each year, and more Valley residents than ever receive powerful information about heart healthy living.

"The AHA seeks to touch the lives of each of us through its myriad of events and programs, like the Heart Walk, Jump Rope for Heart, Go Red for Women, the Heart Ball,and My Life Check, just to name a few," Lieberman said."The goal is to improve the quality of lives, not just prolong them," he continued.

Richard Lieberman is Chair of the firm's Corporate, Securities and Finance Department and serves on the firm's Management Committee. He has extensive experience in a broad range of business law issues, including mergers and acquisitions, securities, corporate governance, finance and banking, employment, executive compensation, bankruptcy and corporate restructuring, litigation and legislation.

He earned a J.D. from the University of Illinois School of Law and a B.A. also from the University of Illinois.

Arizona Case Law Updates Related to Anti-Deficiency Statutes

By David W. Elston

Arizona’s anti-deficiency statutes were enacted in 1971.  The purpose of the anti-deficiency statutes is to bar a homeowner’s personal liability after losing a qualified residential property to foreclosure under certain circumstances.  The statutes prohibit execution against and attachment of a borrower’s assets when the property foreclosed upon either judicially or through a trustee sale is (i) a qualified property and (ii) the debt is a qualified loan. The scope and breadth of the statutes have been the subject of three recent Arizona judicial decisions of which a brief summary of each are as follows: 

1.           In M&I Marshall & Ilsley Bank v. Mueller, 228 Ariz 478 (2011), the Arizona Court of Appeals expanded the scope of the Arizona anti-deficiency statutes to protect borrowers from a deficiency judgment after a foreclosure of a mortgage securing their loan in which the loan proceeds were used to construct the borrowers’ unfinished house.  Under Arizona’s anti-deficiency statutes, “utilization” of the house as a dwelling is one of three requirements that a borrower must meet in order to be protected from a deficiency judgment.  The Arizona Court of Appeals held that the Mueller case was distinguishable from prior Arizona cases in that in Mueller the borrowers used the loan proceeds to purchase and construct the property with the intent to occupy the dwelling upon its completion.  Therefore, the borrowers were protected from a deficiency judgment even though the house was not completed and had never been lived in.  On August 28, 2012, the Arizona Supreme Court denied the request of many lenders to overturn this Court of Appeals ruling.

2.           In Helveta Servicing, Inc. v. Pasquan, 229 Ariz. 493 (2012), the Arizona Court of Appeals held that a lender may obtain a deficiency judgment after a judicial foreclosure for any non-purchase money loan proceeds disbursed to the borrower (i.e., the loan proceeds were not used solely by the borrower to purchase the property, or in the case of a refinance transaction, the loan proceeds were not used solely by the borrower to pay off existing purchase money loan debt) to the extent that the non-purchase money proceeds could be segregated and traced.  The ruling, however, only applies to cases whereby a lender foreclosures upon the property in a judicial foreclosure action.  If the lender had elected to foreclose the property non-judicially pursuant to a power of sale provision, it would not have been entitled to recover a deficiency judgment against the borrower regardless of whether the refinanced loan proceeds were purchase money debt or non-purchase money debt.

The Court of Appeals in Helvetica also ruled that a construction loan qualifies as a purchase money loan if the loan proceeds are actually used to construct the house that otherwise qualifies for protection under the Arizona anti-deficiency statutes, and if the deed of trust securing the loan encumbers the land and the house built thereon.

3.           More recently, in Independent Mortgage Company v. Alaburda, 230 Ariz. 181 (2012), the Arizona Court of Appeals ruled that the owners of a vacation home (the owners owned a fractional interest in the property and they were entitled to use the property for a maximum of 28 days per year) qualified for protection under Arizona’s anti-deficiency statutes because the statutes do not limit its protection to only those that own all of the property.  The Court of Appeals rejected the lender’s argument that a 1/10^th interest in a vacation accommodation was not a “dwelling” entitled to anti-deficiency protection under the Arizona statutes in holding that what constitutes a one–family or two-family dwelling is not determined by how many families pass through the residence, but on the number of families there at a time.

Short Sale - Applicability of Anti-Deficiency Statutes.

Generally, while the specific language of the Arizona anti-deficiency statutes refer to qualifying properties sold by “trustee sale” or through a “judicial foreclosure”, any deficiency is also waived by the lender if it approves a short sale and releases the deed of trust or mortgage securing the debt, unless there is evidence of an agreement to the contrary made by the lender and borrower (i.e., where the lender agrees to release its mortgage or deed of trust to allow the short sale but requires that the borrower sign documentation thereby agreeing that a portion of the debt is still owed to the lender upon the short sale closing and release of the deed of trust or mortgage by the lender). 

Jennings Strouss Gains Six New Attorneys and Two New Areas of Practice

Phoenix (September 4, 2012) – Jennings, Strouss & Salmon, PLC is pleased to announce that six attorneys have joined the firm’s Phoenix office, expanding the firm’s services to include Surety, Fidelity and Family Law.   

Jay M. Mann, Richard S. Wisner, Scott F. Frerichs, Andy J. Chambers and Patrick F. Welch are members of the firm’s new surety and fidelity law practice, and bring additional experience in the areas of construction law and commercial litigation. Norma Izzo Milner leads the firm’s family law and domestic relations practice.

“Jay Mann, Dick Wisner and their team are Arizona’s preeminent attorneys in the area of surety and fidelity law. They fit very well in the firm’s overall plan for growth,” states J. Scott Rhodes, managing attorney at Jennings, Strouss & Salmon, PLC. “Norma Izzo Milner has established herself as a leading practitioner in family law and domestic relations, especially in the areas of mediated and collaborative divorces. Norma’s addition to the firm illustrates our commitment to evolve our services to meet the needs of the community.”

Jay M. Mann is chair of the firm's Surety and Fidelity Group. He is a frequent lecturer and author in the areas of construction, surety and fidelity law. Mann is also active in numerous professional and civic organizations, including the American Bar Association, where he serves as a Vice Chair of the  Fidelity and Surety Law Committee, the State Bar of Arizona, the Maricopa Bar Association, as well as numerous other organizations focused on construction, surety and fidelity law. He earned a J.D., with honors, from Loyola University of Chicago and a B.A. from the University of Illinois.

“Jennings Strouss is a high caliber firm with a reputation for quality client service,” says Jay M. Mann, chair of the firm’s new Surety and Fidelity Law Group. “We look forward to building on the Jennings Strouss legacy with the addition of these new legal services.”

Richard S. Wisner is special counsel in the Surety and Fidelity Group.  He is recognized as a leader in the fidelity and surety field, and  is the recipient of Lifetime Achievement Awards from the American Bar Association, Fidelity and Surety Law Committee ("FSLC") and the National Bond Claim Association. Wisner is a Past Chair of FSLC and currently serves on the Board of Directors of the Surety & Fidelity Claims Institute. Wisner earned a J.D. from DePaul University and a B.A. from Loyola University.

Scott F. Frerichs is a member in the Surety and Fidelity group. He focuses his practice in the areas of commercial and construction litigation, personal injury defense, professional and products liability, and appellate law. Frerichs earned both a J.D., cum laude, and B.S. from Arizona State University. 

Andy J. Chambers is a member in the Surety and Fidelity group. He focuses his practice on fidelity law, commercial litigation, and surety and construction law. Chambers earned a J.D., cum laude, from the Washington College of Law at American University and a B.A. from the University of California, Santa Barbara.

Patrick F. Welch is an associate in the Surety and Fidelity group. He focuses his practice in the areas of commercial litigation, construction, fidelity and surety, and employment. Welch earned a J.D. from the New England School of Law and B.A. from Connecticut College.

Norma Izzo Milner is a member and leads the firm’s Family Law and Domestic Relations practice, which includes collaborative divorce, mediation, arbitration, parent coordination, custody and child support.  Ms. Izzo Milner has been appointed as a judge pro tempore for the Family Court Division and IV-D Court of the Superior Court of Arizona in Maricopa County. She also serves on the State Bar of Arizona Committee for Family Law Rules of Practice and Procedure and on the Board of Directors for the Maricopa County Bar Association. She earned a J.D. from Arizona State University and a B.A. from Northern Arizona University.

“Jennings Strouss is a firm with a long history of providing top notch service to their clients,” states Izzo Milner. “I look forward to being a part of such a dynamic team of attorneys.”

About Jennings, Strouss & Salmon

Jennings Strouss & Salmon is one of the Southwest's leading law firms, providing legal counsel for nearly 70 years through its offices in Phoenix, and Peoria, Arizona; and Washington, D.C. The firm's primary areas of practice include bankruptcy, reorganization and creditors’ rights; corporate, securities and finance; energy; family law and domestic relations; health care; intellectual property; labor and employment; litigation; real estate; sports and entertainment; surety and fidelity; tax; and trust and estates.  For additional information please visit www.jsslaw.com.

~JSS~

Contact:  Dawn O. Anderson  |  danderson@jsslaw.com  |  602.495.2806