INS AND OUTS OF FORECLOSURE, 3d Ed. (2010)
This book, written by acknowledged experts in the areas of foreclosure law and bankruptcy, is the first, and perhaps only, reference you will need to consult when handling foreclosure matters in Arizona. It provides step-by-step instructions, lucid explanations, practice tips and ethics guidance. The Third Edition contains 3 new chapters: (1) CERCLA and WQARF Environmental Considerations in Foreclosures; (2) Residential and Commercial Leases in Foreclosure; and (3) Tax Considerations Associated with Foreclosures and Cancelation of Indebtedness.
Consensual Real Property Liens
Enforcement and Sale
Defenses to Foreclosure, Trustee’s Sale and Forfeiture
Impact of Bankruptcy
Deeds in Lieu of Foreclosure
Receiverships and Mortgagee in Possession
Preservation and Collection of Deficiencies
Rights and Liabilities of Guarantors
Extinguishment of Federal Liens
Professional Ethics and Foreclosures
Fair Debt Collection Practices
Community Associations and Lien Foreclosures
CERCLA and WQARF Environmental Considerations in Foreclosures
Residential and Commercial Leases in Foreclosure
Tax Considerations Associated with Foreclosures and Cancelation of Indebtedness
Appendices: Brief Overview of Bankruptcy Law; BAP Ninth Circuit Rules; Appeals Before Ninth Circuit BAP; and Local Rules of Bankruptcy Procedure for the District of Arizona.
KENT E. CAMMACK is a partner with the law firm of Gust Rosenfeld. His practice focuses on real estate finance litigation, commercial lease litigation, real estate litigation, corporate and other business association disputes, and general commercial litigation. He has practiced for more than thirty years in the administration and enforcement of mortgages, deeds of trust, agreements for sale, mechanics’ and materialmen’s liens, and commercial leases. He has represented owners, interim and permanent lenders, builders, and title insurers. Mr. Cammack is active in alternative dispute resolution, and has served as a private mediator of commercial real estate disputes. Mr. Cammack has been a frequent lecturer for the State Bar of Arizona, the Maricopa County Bar Association, the Arizona Trustee Association, the Arizona Bankers Association and various industry seminars on foreclosure, lender liability, and other real estate and lien enforcement issues. He has been a guest lecturer at Brigham Young University. He graduated magna cum laude from Brigham Young University with a B.A. He received his J.D. degree cum laude from Brigham Young University, where he served as an editorial associate and contributor to the Brigham Young University Law Review.
MARK DEATHERAGE is a shareholder with the law firm of Gallagher & Kennedy, P.A., where he practices in the area of commercial litigation, with an emphasis on real estate and land use litigation, business tort and contract disputes, creditors’ rights, professional sports team matters, trademark, unfair competition, and copyright cases, lender liability, and other business litigation. Mr. Deatherage graduated from the University of Iowa (B.A., Economics, 1980) and obtained his law degree, Order of the Coif, from the University of Kansas Law School (J.D., 1985). He has served for several years as a faculty member for the National Institute of Trial Advocacy Deposition Skills Program. Mr. Deatherage was named Volunteer Lawyers Program Lawyer of the Month for November 2009 for prosecuting a foreclosure rescue scam case through a successful jury trial that awarded his clients a return of their home and a verdict of over $700,000. He is author of COPYRIGHT PROTECTION FOR ARCHITECTURAL WORKS and is co-author of Arizona’s Deficiency Law, ARIZ. ATT’Y 23 (1992), and has prepared materials for and spoken at several seminars, including “Problem Loans in Arizona,” “Trustee’s Sale Update,” “Advanced Real Estate Law in Arizona,” “Fundamentals of Foreclosure, Collection and Lease Enforcement Law,” “The Use of Appraisers in Litigation,” and “Mortgage Fraud in Arizona.” Mr. Deatherage has served as a member and chairman of the State Bar Civil Jury Instructions Committee and has served as a Judge Pro Tem for the Arizona Court of Appeals.
CHRISTOPHER M. MCNICHOL is a partner with the law firm of Gust Rosenfeld P.L.C. in Phoenix, Arizona. His practice emphasizes commercial and real estate transactions, including sale and purchase, development, lease title insurance and construction issues, and related commercial litigation. He is co-chair of his firm’s real estate section. He also handles creditors’ rights matters, including loan workouts, judicial and non-judicial foreclosures, deeds in lieu, receiverships, deficiency and guarantor actions, and bankruptcy. He represents real estate developers, retail landlords and tenants, contractors, brokers, banks, mortgage lenders and brokers, title and escrow companies, and individuals. Mr. McNichol has lectured and written extensively for the State Bar of Arizona, the Maricopa County Bar Association, Professional Education Systems, Lorman Education Services, the Arizona Trustee Association, the Arizona Mortgage Lender’s Association, Land Title Association of Arizona, and the Phoenix Board of Realtors, on real property, civil remedies, and litigation matters. He is a member of the Maricopa County Bar Association, the State Bar of Arizona and the American Bar Association, and is licensed to practice in Arizona, the District of Columbia, Oregon (inactive), Washington (inactive), and Wyoming (inactive), as well as before the District Court for the District of Arizona and the United States Court of Appeals for the Ninth Circuit. He received his B.A. in 1981 from Temple University and his J.D. from Villanova University School of Law in 1986
THOMAS J. SALERNO is a partner in, and co-chair of, the International Insolvency Restructuring Group in the Phoenix office of the international law firm of Squire, Sanders & Dempsey, L.L.P. Mr. Salerno graduated from Rutgers University (B.A., summa cum laude) and Notre Dame Law School (J.D., cum laude), where he served as an editor of the Notre Dame Law Review. Mr. Salerno has authored APPELLATE STRUCTURE AND PROCEDURE UNDER THE NEW BANKRUPTCY RULES (CLE Press 1984); and co-authored THE EXECUTIVE GUIDE TO CORPORATE BANKRUPTCY SECOND EDITION (Beard Books 2010); BANKRUPTCY LITIGATION AND PRACTICE: A PRACTITIONER’S GUIDE, 4TH ED. (Aspen Publications 2009); PRE-BANKRUPTCY PLANNING FOR THE COMMERCIAL REORGANIZATION: A BRIEF GUIDE FOR THE CEO, CFO/COO, GENERAL COUNSEL AND TAX ADVISOR—SECOND EDITION (American Bankruptcy Institute 2008) (winner of the ABI’s Publication Award, 1997); Pre-Bankruptcy Planning for Professionals and ERISA-Qualified Pension Plans: Are State Created Statutory Exemptions D.O.A. in Bankruptcy Proceedings? 94 COMMERCIAL LAW JOURNAL 229 (Fall 1989); Environmental Law and Its Impact on Bankruptcy Law—The Saga of Toxins-R-Us, 25 REAL PROPERTY, TRUST AND PROBATE JOURNAL 261 (Summer 1990); and Technology Licenses Under Section 365(n) of the Bankruptcy Code: The Protections Afforded the Technology User, 95 COMMERCIAL LAW JOURNAL 170 (Summer 1990); A Prepackaged Bankruptcy Strategy, JOURNAL OF BUSINESS STRATEGY 36 (Jan./Feb. 1991); and Making the Best of Bankruptcy, BANKERS MONTHLY 21 (Apr. 1991).
Mr. Salerno was a faculty member of the first Bankruptcy Advocacy trial program put on by the National Institute for Trial Advocacy conducted in 1992 and 1993 in Dallas and Miami, and is chair of the Materials Committee, and a faculty member, for the program entitled Problems In Bankruptcy Litigation And Advocacy being co-sponsored by the American Bankruptcy Institute and Emory University Law School.
He is a contributor to NORTON BANKRUPTCY LAW & PRACTICE and the ABI JOURNAL. He is a member of the board of directors and the executive committee of the American Bankruptcy Institute and the American Bankruptcy Board of Certification, Inc., both based in Washington, D.C., and was co-chairman of the Subcommittee on Uniformity in Professional Fees in Bankruptcy of the ABI. Mr. Salerno was chair of the Arizona State Bar Bankruptcy Section from 1988 to 1990. He is a member of the faculty for McGeorge School of Law’s International Law Program, and has taught both Comparative International Insolvency and International Commercial Arbitration in both London and Salzburg. Mr. Salerno has been included in THE BEST LAWYERS OF AMERICA since 1992, and named as one of twelve Outstanding Bankruptcy Lawyers by TURNAROUNDS & WORKOUTS (1998 and 2002).
Hon. Michael Yarnell, Associate Professor of Law and Director of Externships
HON. MICHAEL A. YARNELL is Associate Professor of Law and Director of Externships at the Phoenix School of Law. He retired as a trial judge in the Superior Court of Maricopa County, Arizona in January 2005, and serves as a private mediator, arbitrator, and special master. At the Phoenix School of Law Judge Yarnell teaches Property Law, Civil Procedure, and is in charge of the student externship program. He is a former shareholder in the firm of Myers, Barnes & Jenkins in Phoenix, and a former director and member of the law firm of Streich Lang, P.A. Prior to assuming the bench in 1991, Judge Yarnell practiced for twenty years in the area of general commercial litigation with an emphasis on real estate transactions and construction law. His law practice included extensive experience with the drafting, administration, and enforcement of real property security devices in residential and commercial settings; he has represented owners, interim and permanent lenders, builders, contractors, architects, and title insurers. Judge Yarnell is a member of the State Bar of Arizona, the American Bar Association, and the Maricopa County Bar Association. He is admitted to practice before the United States Court of Appeals, Ninth Circuit, and before the United States Supreme Court. Judge Yarnell has extensive lecturing experience on the civil rules of procedure, real property law and construction law. He has been a guest lecturer at Arizona State University College of Law and has lectured at the University of Canberra School of Law in Canberra, Australia. He served as Adjunct Professor-Judicial Education, Courts & Technology, Online Legal Education [June 2004 – July 2007], University of Canberra, Canberra, AU. Judge Yarnell lectured internationally on the topics of “Ethics and Professionalism in ADR” and “Discovery in Arbitration” at the Summer Academy in International Commercial Arbitration sponsored by the Georgia State University Law School in co-operation with at Johannes Keppler Universitaet, during the summer of 2009. Judge Yarnell in years past prepared and presented a one week seminar on corporate governance and ethics to the Chamber of Auditors of Romania and a one week seminar on corporate governance to country leaders and the private sector in Georgetown, Guyana, both through USAID. He received in 1988 the State Bar of Arizona’s award for Outstanding Contribution to Continuing Legal Education. Judge Yarnell graduated from Arizona State University with a B.S. degree and received his J.D. degree, with honors, from the University of Illinois. At the University of Illinois, he received the Order of the Coif and was Projects Editor for the University of Illinois Law Forum, 1969-70. Judge Yarnell received his Master of Arts degree in Education in 2004.
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