
These are just proofs; but, they should freshen up the web site.
240 E Tudor Rd Ste 230, Anchorage, AK 99503 — 907-375-9250
Clayton Walker
Alaska Law Offices, Inc
240 E Tudor Rd Ste 230
Anchorage, AK 99503
Dear Clayton Walker, Jr.,
Congratulations! Your reappointment for the Platting Board has been approved by the Assembly for another three years, extending to October 14, 2018.
Attached is the Assembly Memorandum No. AM 617-2015.
Thank you so much for your time, dedication and service! You are greatly appreciated!
Sandy Johnson
Municipality of Anchorage — Current Planning
[Deed of Trust Foreclosure Sales
Many attorney’s knee jerk response is that deed of trust foreclosure sales don’t get set aside. This certainly is the general rule. However, Alaska has a long history of setting aside deed of trust foreclosure sales, even if they are only rare occasions. Alaska is particularly troubling in that the statute provides for redemption rights only to the extent provided for in the deed of trust. Because the statute does not require redemption rights the banks don’t allow any redemption rights. Accordingly, the courts have allowed sales to be set aside. Due process violation allegations have been made, but the Alaska Supreme Court has not reached the question by finding other reasons to allow the sales to be set aside. Accordingly, the issue remains open whether a due process claim could be successful. The following are excerpts taken from various pleadings and briefs filed in cases in Alaska. Rather than waiting to provide a more cohesive analysis on the topic, I thought I’d make these resources generally available to those that might either use them as a launching point or to engage in debate on the issues.
Alaska Courts set aside Trustee Foreclosure Sales
“Equity Abhors a forfeiture and will seize upon slight circumstances to relieve a party therefrom.” Rosenberg v. Smidt, 727 P.2d 778, 783 (Alaska 1986) citing, Jameson v. Wurtz, 396 P.2d 68 (Alaska 1974). The remedy of setting aside the sale will be applied in cases which reach unjust extremes. Rosenberg v. Smidt, 727 P.2d 778, 783 (Alaska 1986) citing Semlek v. National Bank of Alaska, 458 P.2d 1003, 1006 (Alaska 1969). If the bidders are allowed to claim the property after paying only a small fraction of the value of the property the matter has reached an unjust extreme. See, e.g., Rosenberg v. Smidt, 727 P.2d 778 (Alaska 1986).
The Alaska Supreme Court has stated that
“. . .defects in the mechanics of the trustee’s exercise of the power to foreclose may render the foreclosure sale voidable. Generally, mere inadequacy of price is not sufficient by itself to require the inadequacy of the sale price is (1) “so gross as to shock the conscience and raise a presumption of fraud or unfairness,” or (2) is coupled with other irregularities in the sale procedures, then invalidation of the sale may be justified.
Gross inadequacy is measured by reference to the fair market value of the property at the time of the sale. Fair market value for these purposes has been defined as not the fair “forced sale” value of the real estate, but the price which would result from negotiation and mutual agreement, after ample time to find a purchaser, between a vendor who is willing, but not compelled to sell, and a purchaser who is willing to buy, but not compelled to take a particular piece of real estate. Baskurt v. Beal, 101 P.2d 1041, 1044 (Alaska 2004).
Furthermore, “. . .a trustee has a duty to take reasonable steps to act impartially and in such a way as “not to sacrifice the debtor’s property.” Id at 1046.
Alaska Deed of Trust Bidders Do Not Earn BFP Status when on Inquiry Notice of Defenses to Sale or they are Bad Faith Purchasers.
Alaska Stat. 34.90.030 grants bona fide purchasers at a foreclosure sale a conclusive presumption that the provisions for a non-judicial sale were performed if the trustee recites the factual specifics of their compliance with statutory requirements. The Alaska Supreme Court has applied the statute in Rosenberg v. Smidt, 727 P.2d 778, 784 (Alaska 1986). In Rosenberg the court stated that to qualify as a BPF the purchasers must be good faith purchasers for value and without notice of any defect. Id. Furthermore, a bad faith purchaser or one on inquiry notice does not become a BFP due to the recitations in the Trustee’s deed. Semlek v. National Bank of Alaska, 458 P.2d 1003 (Alaska 1969).
1) Foreclosure Purchaser Inquiry Notice may Defeat BFP Status:
In addressing the quality of the bidder’s “notice,” the property owner only must show the bidders were on inquiry notice of potential defects in the sale to deprive the Bidders of BPF status. Modrok v. Marshall, 523 P.2d 172 (Alaska 1974).
“It is a settled rule of property that circumstances, which suggest outstanding equities in third parties, impose a duty upon the purchaser’s to make a reasonable investigation into the existence of a claim. Given suspicious facts, the status of bona fide purchaser turns upon whether there was a prudent inquiry into their import.” Modrok v. Marshall, 523 P.2d 172 at 174 (Alaska 1974).
Facts that put bidder on inquiry notice of Defects of sale include:
1) Insufficiency of the Sale Price in comparison to the fair market value of the property sold;
2) Absence of the Owner at the Sale along with insufficient Trustee recitation of facts regarding the owners actual notice of the sale date.
When the owner is absent from the sale and the trustee’s deed fails to recite factual details in the deed then a bidder is on inquiry notice and is deprived of BFP status. The court explained that requiring factual recitals tends to assure the requirements of law concerning mailing and delivery are complied with. In the present case the trustee’s deed identifies the notice of sale which contained a specific sale date which was different than the actual sale date. The trustee’ deed is completely silent on why the sale was continued or whether any factual steps were taken to apprise the owner of the new sale date. This lack of any facts addressing this absence of notice to the Owner placed the Bidders on inquiry notice and deprived them of their BFP status.
2) Bad Faith Purchaser Conduct Defeats BFP Status:
A bad faith purchaser or one on inquiry notice does not become a BFP due to the recitations in the Trustee’s deed. Semlek v. National Bank of Alaska, 458 P.2d 1003 (Alaska 1969). The Plaintiff’s following conduct caused their conduct to be bad faith:
1) They created a collusive buying group to chill the sale and lower the auction price.
2) They failed to address make sufficient inquiry into the items in which they were on inquiry notice;
3) They failed to notify the owner of the sale so that she could timely object to the sale during the free statutory sale cancellation procedure.
Bidders had a duty to not chill the sale and take deliberate steps to lower the auction sale price. .” Cf. McHugh v. Church, 583 P.2d 210, 214 (Alaska 1978). The trustee must take “reasonable appropriate steps to avoid sacrifice of the debtor’s property and his interest. Id. “The trustee under a deed of trust generally regarded as owing a fiduciary duty to both the trustor and the beneficiary and is required to perform his duties impartially. McHugh v. Church, 583 P.2d 210, 214 (Alaska 1978). The trustee must take “reasonable appropriate steps to avoid sacrifice of the debtor’s property and his interest. Id. The Bidders were on notice that the borrowers were occupying the house before bidding on the property.
3) Possible factual Allegations
Considering all the moving parts and implications of the government shutdown what should Alaska contractors focus on now. In short, brace yourself, what is happening now is not a one-off situation; this is ground-zero for the foreseeable future.
Sequestration happened in March. During that time federal job losses averaged 9,000 per month, or 72,000 jobs lost. We anticipate that federal payroll decline will escalate.
We expect continued:
1. Reduction in new contracts;
2. Changes in administration contract administration on existing contracts;
3. Changes in procurement type;
4. Increase in Bid Protest activity; and
5. Increase in CDA Claims activity
Cost and need will drive new contracts. The government will likely focus on existing programs over long-term projects. On vehicle usage, conservatism should be anticipated as the rule; the Fed has lots of flexibility for greater restrictions – so dot the I’s and cross the T’s. You can expect a frequent use legacy indefinite in quantity contracts (IDIQ) and a desire to lock contractors in to Firm Fixed Price contracts.
Alaska Contractors can expect the government to offload risk to the contractor community. Alaska Contractors will need to manage this increased risk. Alaska Contractors should approach opportunities with a focus on discipline and rigorous risk evaluation. Fully-funded contracts and phases should be safe; forward phases and contract options are at risk and should be re-negotiated as soon as possible.
The same applies to your IDIQ task-orders. The funded task or delivery orders should be safe. Those that are not are at risk. You should determine 1) whether your contract relates to a sequestration exempt program; 2) whether it is impacted by any new congressional budget, 3) whether it is fully or incrementally funded, 4) when the agency anticipates exercise of options or issuance of task orders, and 5) what changes are planned.
With scarce contract opportunities; we expect an impact on Bid Protests and CDA Claims. The GAO shutdown creates doubt that protests will trigger an automatic stay. If the GAO protests fails to stop disputed contracts, you may reconsider rolling the dice in more expensive litigation at the U.S. Court of Federal Claims. However, if you decide to engage the GAO; the Agency has issued guidance to federal contractors about how bid protests and related filings will be handled during this period.
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COMMERCIAL LEASE DEFINITIONS PRIMER
Commercial leases contain terms that many people don’t know and definitions would help them. Some commercial leases are the subject of complex, lengthy, and intense negotiations. To be proficient at such negotiations, one must be familiar with certain basic concepts and be able to anticipate and protect one’s client from problems that may occur during the term of the lease. This post addresses definitiions of some of the principal legal and financial terms applicable to commercial leases. The most important legal and financial terms in commercial leases include the following:
Rent, including base rent, percentage rent, increases in rent, taxes, and operating expenses, and rent abatement;
Rules and regulations of landlord
Continue reading “ALASKA COMMERCIAL LEASE DEFINITIONS PRIMER”
It’s good to get out and take in the views on a sunny day. From Wolverine Peak across the Chugach Range. Lots of people were out for the adventure. I wound up meeting with a judge, a former board member and client at various points along the hike.
It’s good to get out and take in the views on a sunny day. From Wolverine Peak across the Chugach Range. Lots of people were out for the adventure. I wound up meeting with a judge, a former board member and client at various points along the hike.
Anchorage Bike to Work Day is a local celebration of the national event initiated in 1956 by the League of American Bicyclists. Each May, the event provides a stimulus to get bodies and bicycles in shape for a season of riding. Teams are organized among coworkers and other social groups for education and mutual support. Team registration has quadrupled since 2007; more than 3,800 cyclists were counted at key intersections in May of 2012.
PRESS RELEASE
The American Bar Association (ABA) Forum on the Construction Industry will hold its annual meeting, entitled “Surfing the Next Wave: The Future of Construction Law and Practice,” April 25-27 in Dana Point, Calif. The event will focus on technological advances for construction projects; the future of government regulation for preference programs and workforce issues; the future of construction insurance, bonding, and construction law practice; and the globalization of construction alternative dispute resolution.
The construction industry is finally focusing on its lack of productivity and efficiencies compared to other industries and is looking to advanced technology to change the paradigm. This session looks at the potential roles of emerging super hi-technology in construction, including robotics, modular construction, new contracting and administration techniques, and some key legal issues that may arise with the use of these new and emerging construction concepts, methods and materials.
This session is an opportunity to learn about future trends in federal, state and local government procurement, and particularly the expansion of programs to involve disadvantaged, small and local, disabled veteran-owned, minority-owned, and women-owned contractors, subcontractors, and suppliers, to require use of U.S. and local products and services (Buy America, ARRA and state/local initiatives) to protect particular industry sectors (anti-bid shopping laws), and to provide greater access to bonding
What is the future of construction insurance and bonding and the law that governs them? Will domestic and international underwriting standards, coverages, and policy language begin to merge? Will there continue to be coverage for construction defects? Will subcontractor default insurance continue to make inroads into the surety market and will law governing it develop? Will legislatures eliminate the statutory requirements for bonds?
(Presented in conjunction with the ABA Law Practice Management Section)
The ABA Model Rules of Professional Conduct now state that a lawyer should keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.” This session showcases both hardware and software beneficial to a construction lawyer’s practice, while both in and out of the office. These new practice management tools have the potential to enhance client service many-fold, and are likely integral to the new paradigm that is “practicing construction law” in the 21st Century.
New technologies are revolutionizing the way projects are bid, negotiated, memorialized, and managed. This session examines the legal services that will likely be spawned by future advances in procurement and back office project management, such as internet-based procurement, reverse online auctions, on-line real time simultaneous contract drafting and
This session explores how the construction business is changing and where the practice of construction law is headed. Given the dramatic need for construction services in the developing world, how will this globalization of the industry impact U.S. construction lawyers? What effect will the emergence of the “non-firm” law firm, contract lawyers, and outsourcing of legal services have? How will growing pressure to control fees and costs drive law firms’ use of technology and the possible use of construction litigation funding? Future consumers of legal services will likely demand counsel with higher levels of specialization, so how can small firms and solo practice lawyers compete in a more segmented legal market?
The project may be in your backyard, but the architect is from Sweden, the general contractor is owned by a Spanish conglomerate, and the steel is from China. Your local project may use the FIDIC contract forms, not AIA; and the UN Convention on the International Sale of Goods, not the UCC; and the New York Convention, not the Federal Arbitration Act, may be the governing law. Dispute resolution is as likely to be under ICC, ICDR, LCIA, or UNCITRAL rules as AAA. International norms are revolutionizing construction contracting and will influence the dispute resolution process. This session will explore the impacts of globalization on the future of domestic dispute resolution.
For more information on the event click here:
http:://www.americanbar.org/groups/construction_industry.html.
For more information regarding this seminar, you can contact Mr. Walker at chwalker@q69.990.myftpupload.com or visit our website at www.aloinc.com.
If you need to know where to go look here:
Polling Places are open 7:00 a.m. – 8:00 p.m. Election Day, April 2, 2013.