A new decision in Ash v. North American Title Co. holds that (1) contract damages based upon a bankruptcy were not foreseeable, and (2) an escrow holder was  entitled to a jury instruction  as to intervening or superceding causes (i.e., the bankruptcy).  The decision also highlights a potential for some judges to try to impose greater responsibilities on escrow holders.

As the financial and housing markets headed toward freefall in September of 2008, an enterprising homeowner named Kyung Ha Chung applied for two loans, from two lenders, to be secured by two deeds of trust against her house.  The problem was, she didn’t tell the two lenders about each other, and signed the two deeds of trust on the same day, before two different notaries.

How The Problem Arose:  Document Batches Recorded Together

In a depressed economy wrought with defaulting developers, a lender in California facing a lien priority challenge should evaluate whether it would be worthwhile to secure a first priority position for its deed of trust through law and motion practice.