By Jeffrey Messing February 28, 2016 As part of its 2003 amendment to E.R. 1.5, the Arizona Supreme Court added a new subpart 1.5(d)(3) which specifically addressed the circumstances under which a lawyer may charge a fee termed “earned upon receipt” or “nonrefundable.”1  After more than a decade of experience with the Rule, a number [...]

By Jeffrey Messing, Esq. February 20, 2015 INDEX OF TOPICS ENFORCEMENT OF COMMERCIAL LEASES ENFORCEMENT OF COMMERCIAL LEASES INTRODUCTION This article will include a discussion of legal and equitable remedies available to enforce a commercial lease. Remedies and enforcement mechanisms are authorized, in the first instance, by the terms of the lease. If the lease [...]

By Jeffrey Messing February 20, 2015 In a decision last month the Arizona Supreme Court clarified the scope of Arizona's anti-deficiency statute which applies to limit a lender's ability to collect a deficiency following a sale of residential property ";utilized for either a single one-family or a single two-family dwelling."; BMO Harris Bank, N.A. v. [...]

By Jeffrey Messing February 20, 2015 In a recent case the Arizona Court of Appeals highlighted the importance of carefully drafting any order appointing a Receiver to reflect the reality of who will be receiving the money. In MCA Financial Group Ltd. V. Enterprise Bank & Trust, ___ P.3d ____ 2014 WL 7448897 (Div. 2, 12/30/2014), [...]

By Jeffrey Messing February 20, 2015 No-contest provisions are sometimes included in wills or trusts to discourage beneficiaries from challenging their provisions after the testator/trustee has died. Generally they purport to disinherit any beneficiary who challenges the document and in some cases its administration. Such provisions in wills are unenforceable in Arizona if the beneficiary [...]

By Jeffrey Messing February 20, 2015 Most of us take the right to a jury trial for granted. It is available in virtually all criminal cases, at least those in which a penalty of more than six months can be imposed. Taylor v. Hayes, 418 U.S. 488, 495 (1974). Similarly in most civil cases, either party [...]

By Jeffrey Messing June 2, 2015 In Arizona Bank & Trust v. James R. Barrons Trust, T-Group, LLC, 1CA-CV 13 0096 (Div. One 5/28/2015), the Arizona Court of Appeals in a published opinion held that a guarantor, unlike a borrower, can waive the protection of Arizona’s anti-deficiency statute, A.R.S. § 33-814(G), if appropriate language is included [...]