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JEFF SALB AND RANDY DUVALL RECOGNIZED AS VIRGINIA SUPER LAWYERS

SALE OF REAL ESTATE IN AVOIDANCE OF FORECLOSURE HELD TO BE A VALID AND ENFORCEABLE TRANSACTION

COVERAGE DECLARED BY SUPREME COURT OF VIRGINIA


JEFF SALB AND RANDY DUVALL RECOGNIZED AS VIRGINIA SUPER LAWYERS

    Breeden, Salb, Beasley & DuVall, P.L.C. is proud to announce that Jeff Salb and Randy DuVall were recognized as 2009 Virginia Super Lawyers.  Jeff Salb received recognition for his work in the practice area of civil litigation defense and Randy DuVall also received recognition for his work in the practice area of personal injury defense: general. 


SALE OF REAL ESTATE IN AVOIDANCE OF FORECLOSURE HELD TO BE A VALID AND ENFORCEABLE TRANSACTION

           Clemons v. Homes Savers, LLC

           530 F. Supp. 2d 803 (E.D. Va. 2008)

        Ms. Clemons purchased a home and took out a mortgage.  She refinanced her mortgage three times before falling behind in her payments and receiving a notice of foreclosure from her lender.  She contacted Home Savers, LLC in an attempt to avoid the foreclosure and stay in the home.  Home Savers bought the home and leased it back to her, giving her an option to repurchase it after an agreed upon period of time.  In so doing, Home Savers assumed her mortgage, paid her arrearages, and provided Ms. Clemons with sufficient funds to pay her outstanding payday loans.  In total, Home Savers paid a total of $114,624 for the property, which was assessed for $125,000 at the time of the transaction.  Although Ms. Clemons paid the rent for the property for several months, she did not comply with the terms of the option to purchase agreement.  She was unable to pay the option price by the agreed deadline.  Home Savers agreed to extend Ms. Clemons’ lease by one month, and Ms. Clemons agreed to amicably vacate the property.  Ms. Clemons did not vacate the property, and instead filed an eleven-count Complaint alleging violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., as well as the Virginia common law claims of conversion, fraud, unjust enrichment, and breach of implied covenant of good faith and fair dealing.  Randy DuVall and Darlene Bradberry represented Home Savers.  Although both sides moved for summary judgment asking the court to enter judgment in its favor, only Home Savers’ motion was granted.  The case was dismissed prior to trial.

        A pivotal issue was whether the transaction created an equitable mortgage, such that Ms. Clemons could rescind the agreement pursuant to the Truth in Lending Act.  DuVall and Bradberry took the position that the transaction was an unequivocal sale and that no mortgage had been created.  The court agreed, finding that Clemons’ “characterization of the instant transaction as an equitable mortgage is unsupported by Virginia law.”  The court therefore granted Home Savers’ motion for summary judgment on the Truth in Lending Act claim and on the state law claims as well.

        The decision was affirmed by the Fourth Circuit Court of Appeals in a per curiam opinion issued on April 14, 2008.


COVERAGE DECLARED BY SUPREME COURT OF VIRGINIA

            Heron v. Transportation Casualty Insurance Company

            274 Va. 534, 650 S.E.2d 699 (2007)

The Supreme Court of Virginia reversed the decision of the trial court in Heron.  The Court issued its mandate on February 13, 2008 in a declaratory judgment case successfully handled by Randy DuVall and Darlene Bradberry on behalf of the tort claimants to insurance coverage.  The opinion of the Court was issued on September 14, 2007 but the appellee insurance carrier had filed a petition for rehearing, which was not denied by the Court until January 23, 2008.  The result of the decision is that the family of two motorists killed in an accident with a semi-tractor in Virginia Beach will have benefit of one million dollars of liability insurance coverage.

Craig and Alma Heron were killed in 2004 in an accident with a semi-tractor owned by a trucking company located in Florida.  The driver of the tractor was specifically excluded from liability coverage under the Commercial Lines insurance policy issued in Florida to the owner.  The trucking company was registered with the Federal Motor Carrier Safety Administration to operate as an interstate motor carrier.  Registered motor carriers must have a federally-mandated form, known as MCS-90, attached to their policy as an endorsement. 

The insurance carrier, Transportation Casualty Insurance Company, had issued the MCS-90 to the owner.  The insurance carrier filed a declaratory judgment action in Norfolk Circuit Court.  It took the position that coverage was afforded under the MCS-90 only while the tractor was engaged in interstate transportation and that no coverage was afforded to the owner under the circumstances of this case because the trip on which the accident occurred was entirely intrastate and was therefore excluded from coverage by the regulations implementing the Federal Motor Carrier Act of 1980.  DuVall was hired by the attorney representing the family of the deceased claimants to oppose the declaratory judgment action and the insurance carrier.  DuVall and Bradberry took the position that the MCS-90 was clear and unambiguous in its use of language and that the MSC-90 afforded coverage to the owner of the tractor while its vehicle was involved on a wholly intrastate trip despite the weight of authority to the contrary.  The trial court agreed with the insurance carrier.  The Supreme Court of Virginia agreed with DuVall and Bradberry

Writing for a unanimous Court, Senior Justice Russell stated that “[w]ith deference to the authorities that have reached a different result”, the analysis was less complex than those courts had employed.  “[T]he question presented to us is a simple one of interpreting the plain language of a written contract”, the position that DuVall and Bradberry had advanced from the beginning.  Looking to the language of the MCS-90, the Court held that the MCS-90 afforded coverage for the intrastate trip on which the accident occurred.  The key was that the tractor itself was subject to the financial responsibility requirements of the Motor Carrier Act and thus was covered under the MCS-90 for accidents “arising from negligence in the operation of that vehicle anywhere”.  The Court declined to read into the MCS-90 terms that other courts had read into it.  The Court declined to limit the MCS-90 coverage to only those accidents occurring during interstate transportation.

It is anticipated that the two underlying wrongful death lawsuits filed in Norfolk Circuit Court and the claim of the quadriplegic daughter of the Herons will now be settled for policy limits.

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