Troubleshooting Real Estate Transaction Problems Seminar in Philadelphia, PA

Troubleshooting Real Estate Transaction Problems Seminar in Philadelphia, PA on March 2, 2015

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, trespass, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

Mr. Dimmerman will be lecturing to other attorneys on the topic of real estate law and ethics. The full outline (copyright NBI 2015) may be accessed here: http://www.nbi-sems.com/Enbi/Faculty/68011.pdf

The outline for the ethics portion is as follows:

  1. Applying Rules of Professional Conduct in Real Estate Practice
  2. Multiple Representation and Conflicts of Interest
  3. Disclosure Requirements
  4. Dealing with Unrepresented Parties
  5. Attorney Fees

 

Philadelphia Quiet Title Lawyer

Philadelphia Quiet Title Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, trespass, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

According to the Philadelphia Common Pleas Court, an suit to quiet title may be used for the following purpose:

“Quiet Title

An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party’s title to real property against anyone and everyone, and thus “quiet” any challenges or claims to the title. It comprises a complaint that the ownership (title) of a parcel of land or other real property is defective in some fashion, typically where title to the property is ambiguous. A typical ground for complaint includes the fraudulent conveyance of a property, perhaps by a forged deed or under coercion. Unlike acquisition through a deed of sale, a quiet title action will give the party seeking such relief no cause of action against previous owners of the property.”

Keep in mind that if you believe you have been the victim of deed fraud, you have recourse and should act at once.

Philadelphia Confession of Judgment Defense

Philadelphia Confession of Judgment Defense

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

Pennsylvania’s Rules of Civil Procedure does permit a defendant to challenge a confession judgment, which is mechanism employed by commercial lenders and landlords in the Commonwealth of Pennsylvania. Upon default, the lender or landlord may confess judgment, assuming that the proper contractual disclosures have been made. This remedy is generally perceived as highly draconian, in that the party alleging a default may have the ability to take an immediate judgment against the other party and for substantial sums of money. If you are the defendant in this type of action, it is imperative that you act promptly and assert any and all defenses. A party’s failure to do this could easily result in a crippling judgment against the defendant.

The pertinent Rule of Civil Procedure provides the following:

“Striking off or Opening Judgment. Pleadings. Procedure

(a)(1)  Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment.

(2)  The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only

(i)   in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and

(ii)   as provided by Rule 2958.3 or Rule 2973.3.

(3)  If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied.

(b)  If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order

(c)  A party waives all defenses and objections which are not included in the petition or answer.

(d)  The petition and the rule to show cause and the answer shall be served as provided in Rule 440.

(e)  The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.

(f)  The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending.

(g)(1)  A judgment shall not be stricken or opened because of a creditor’s failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor.

(2)  Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date.”

Philadelphia Foreclosure Defense Lawyer

Philadelphia Foreclosure Defense Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters. If you need an attorney for settlement, negotiation, For Sale by Owner transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

It is critical that you defend the foreclosure litigation immediately, even if you may be endeavoring to achieve a short sale or work out some other agreement with the lender. Failure to respond accordingly will lead to a default judgment being taken against you, thereby making the prospect of resolving the situation amicably far more challenging. The failure to answer the complaint in foreclosure will be viewed by a court as an admission of the truth of all of the bank’s averments, some of which may not be entirely accurate. Finally, assuming that a court will simply permit the borrower to open that judgment and have a second bite at the apple, if you will, is a highly risky assumption.

Philadelphia Real Estate Lawyer

Philadelphia Real Estate Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters. If you need an attorney for settlement, negotiation, For Sale by Owner transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

Alert:

Philadelphia’s tax abatement program is a wonderful incentive for homebuyers. However, even when these abatements have been approved and advertised as such, buyers are running into a major problem upon taking ownership if the seller/selling entity has other outstanding tax liabilities with the City of Philadelphia. In these instances, the innocent buyer may not receive the benefit of the abatement, potentially costing that buyer(s) tens of thousands of dollars in unanticipated taxes. Thus, even with title insurance, it is essential that a real estate lawyer be engaged prior to closing to ensure that written documentation be obtained from the City of Philadelphia to confirm that the abatement is ripe.

Philadelphia Legal Malpractice Lawyer

Philadelphia Legal Malpractice Lawyer

Harper J. Dimmerman, Attorney, is a seasoned litigator and has recently added legal malpractice law as a new area of practice.

Statutes of limitation in any litigation matter in Pennsylvania oftentimes present serious roadblocks for otherwise viable claims. In the realm of legal malpractice, generally two years is the operative time frame which an aggrieved party has to bring a claim. Potential plaintiffs frequently ask when this clock begins to run, if you will. The simple answer is that this period commences as soon as the conduct which forms the basis of the action occurs: the happening of the alleged breach of duty. For practical purposes then, this clock may start even during the representation period, with the lawyer or law firm that could possibly be the subject of that very legal malpractice suit.

 

Partition and Philadelphia Real Estate Law

Partition and Philadelphia Real Estate Law by Harper J. Dimmerman, Attorney at Law. Mr. Dimmerman handles real estate litigation and partition matters. Contact him now for a consultation – (215) 545-0600. His office is located in center city Philadelphia, Pennsylvania.

Co-owners of real estate have a right to partition. This is supported by the Pennsylvania Rules of Civil Procedure.

In a Philadelphia Common Pleas Court decision handed down in November, 2012, the trial court was asked to consider a partition claim by an ex-husband. More specifically, ex-husband argued that he still have a right to real estate, despite not having perfecting his economic claims during the divorce proceeding. Post-divorce, ex-husband filed a suit in partition (approximately one year later) and contended that an oral agreement existed which required the preparation and recording of a deed during the marriage; this never happened. The ex-wife denied the existence of such an agreement. The Philadelphia trial court analyzed the statute of frauds, in light of the claim that there was an oral contract. That statute prohibits the creation of interests in any land by parol evidence. This is particularly true where a spouse seeks to compel the specific performance of such a contract by the other spouse. Also, the payments of repairs and mortgage installments does not take the case away from the statute of frauds. Here the ex-husband could not meet the particularly high burden of proof required to prove the existence of an oral contract. These parties were not even tenants by the entireties while they married, stated the trial court.

Bottom line: always get every deal in writing.  

Philadelphia Legal Malpractice Lawyer

Philadelphia Legal Malpractice Lawyer

What follows is a snippet of the law courts in Pennsylvania will apply to a claim for legal malpractice:

In a trespass [legal malpractice] action, the plaintiff [the aggrieved client] must establish three (3) elements in order to recover: (1) the employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that the attorney’s failure to exercise the requisite level of skill and knowledge was the proximate cause of damage to the plaintiff. Bailey v. Tucker, 533 Pa. 237, 246, 621 A.2d 108, 112 (1993). An attorney will be deemed “negligent” if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances. Collas v. Garnick, 425 Pa. Super. 8, 13, 624 A.2d 117, 120, appeal denied, 535 Pa. 672, 636 A.2d 631 (1993).

Please keep these factors mind when considering your own circumstances (even if you are still being represented by that attorney or law firm). It is incumbent on the client to bring suit within two (2) years time and therefore any questions should be communicated confidentially to a legal malpractice firm and as expeditiously as possible. Attorney Dimmerman provides free, initial consultations — so call now: (215) 545-0600. He is now considering legal malpractice matters. This is a recently added practice area for Mr. Dimmerman.

Real Estate Law and Fraud Article co-authored by a Philadelphia Attorney

Real Estate Law and Fraud Article co-authored by a Philadelphia Attorney. Attorney Dimmerman offers free, initial consultations.

The Superior and Commonwealth Court Getting Aligned on the UTPCPL, “Legal Intelligencer” Article

Forcing adversaries to prove intent is where adept attorneys can easily earn their keep. Mounting the offensive is never an easy feat, especially when allegations of fraud require such a stringent inquiry into the mental processes of an oftentimes shrewd defendant. The stakes can be especially high too, with punitive damage or treble damage claims laying out there, as the case may be. And the icing on the crumbling cake of exposure are those occasional instances where the individual owner(s) of an entity behaves in a manner that gives rise to the potential for personal liability, losing the protection of the corporate veil.

Just last month, our Pennsylvania Superior Court handed down a critical decision in Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC (Pa. Super. Ct., 1302 MDA 2011), a case that forms yet another chapter in the storied history of the well-intended Uniform Trade Practices Consumer Protection law. Perhaps at least a limited discussion of the origin of the Act is in order. Originally conceived as a statute affording private remedies to consumers of “goods or services”, the Act allowed for treble damages to be imposed on those who ran afoul of the statute. The Superior Court, in Gabriel v. O’Hara, 534 A.2d 488 (1987), expanded the Act’s scope by ruling that sales of residential real estate are also within its purview, a great day for righteous plaintiffs lawyers indeed. Resultantly, unfair trade claims are now included routinely in fraud litigation versus realtors, sellers, inspectors and developers.

Up until the mid-90’s, 1996 to be precise, the Act addressed only “fraudulent conduct.” And naturally this required a plaintiff to prove all the elements of common law fraud: proof that a material misrepresentation was made intentionally, or with reckless disregard of its truth inducing justifiable reliance and injury based on such reliance. Now however, the Act we have is the result of a concerted effort to expand the definition of conduct deemed to be “unfair or deceptive acts or practices.” This 1996 amendment broadened the definition of deceptive conduct within the “catchall” definition.

Despite the 1996 legislative amendment that added the phrase “deceptive conduct,” the Superior Court, by its own admission, required an aggrieved party to establish the elements of common law fraud under Act for liability to attach. In arguing for a reversal of the jury’s decision, Mr. Colledge, the Appellant here, heavily relied on Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super 2002), which held that there must be a showing of common law fraud. Hence, it was argued that not only should the UPTCL claim never have been submitted to a jury but also, in the alternative, the charge employing the phrase “misleading conduct” constituted misleading and reversible error.

A great deal of the Masterpiece Court’s analysis was consumed by the court’s defense of its holding that the trial judge’s instruction to the jury that “misleading conduct” under the Act’s “catchall” provision was not an error warranting reversal. But to get there, the Court had to explain away its line of cases that did in fact require the proof of fraud, cases handed down as late as2010. The Masterpiece Court cited to a litany of decisions in which either the Commonwealth of Eastern District Courts permitted liability based on the less stringent deceptive conduct standard. Holding otherwise would have led to a result that “ignore[d] the textual changes of the 1996 amendment as well as the rules of statutory construction.” “[W]here words of a statute differ from those of a previous one on the same subject they presumably are intended to have a different construction.”… and that “every word, sentence and provision of a statute must be given effect.” The legislature “does not intend a result that is absurd, unreasonable or impossible of execution.”

The Masterpiece case notably involved two (2) set of plaintiffs, the Bennett’s and Hoefferle’s, couples who felt compelled to commence an action against the same builder of their new homes. Apparently, numerous building deficiencies were endemic in both properties. The Hoefferles’ home contained non-grade lumber, floors that sagged and bounced, improperly installed insulation and clearances and ventilation and electrical systems completed in violation of code. Not only was a gas smell evident emanating from a basement, but the Masterpiece Court accepted the testimony of an engineering expert who opined that if corrective action had not been taken by Hofferle’s, there would have been structural failure in the sloping roof surface area. That expert also testified for the Bennett’s concerning foundational concerns and other comparable issues.

A bifurcated jury eventually concluded liability was founded under contract, warranty and UPTCPL theories. The statutory multiplier was utilized as well, awarding the Bennett’s about 50k and the Hoefflere’s a bit under 175k, inclusive of attorney’s fees. Critically also, as to piercing, it was determined that the assurances of the appellant, Mr. Colledge, rose to the level of a personal guarantee. The Court cited to statements such as “I will take care of it” and “I guarantee it,” which in its estimation constituted specific assumptions of personal liability.

Prior to the Masterpiece decision, the Pennsylvania Superior Court had repeatedly ruled that a plaintiff suing under the Act’s catchall provision must still prove all elements of common law fraud. However, the Masterpiece case now brings the Superior Court’s reading of the catchall phrase in line with the Commonwealth Court, the Bankruptcy Court and most rulings from the United States District Courts. Cohesion and clarity will assuredly make pursuing arguably deceptive consumer practices far easier. Sellers and service providers would be wise to take heed.

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Harper J Dimmerman is also an adjunct professor at Temple University’s Fox School of Business. His firm represents clients in general litigation, legal malpractice law, various land use, residential, commercial real estate and criminal law matters. They also provide approved attorney title insurance services and real estate consulting statewide. He can be reached via e-mail at harper@hjdlaw.net or telephone at 215-545-0600. James M. Lammendola is an Instructor at Temple University’s Fox School of Business who was in private practice for twenty years. He may be reached via e-mail at james.lammendola@temple.edu or telephone 267-254-3324.
Unauthorized reproduction is prohibited. ALM. 2012.

Legal Malpractice/Philadelphia County, Pennsylvania

The elements of a legal malpractice claim are straightforward enough.

The claim requires proof of (1) employment of the attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such failure was the proximate cause of damage to the plaintiff.  See Knopick v. Connelly, 639 F.3d 600, 606 n.7 (3d Cir. 2011).

If you believe that you have a valid claim, call Harper Dimmerman now:  (215) 545-0600.

All initial consultations are free.

Legal malpractice is a new practice area added for Mr. Dimmerman