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KMS Partner Jon Schwalbach Successfully Defends Dismissal in Court of Appeal

Jon Schwalbach drafted and argued the winning appellate brief in a wrongful foreclosure action against a property receiver. The firm’s client was a property manager who was appointed receiver by the court to oversee the foreclosure of four properties before they were sold. After the sales, Plaintiff sued the bank and the receiver for a wrongful foreclosure, claiming millions of dollars in damages. After several amended pleadings, Schwalbach filed a demurrer arguing that Plaintiff’s claims against his client were barred by res judicata. The Court granted the demurrer and dismissed the claims against the receiver.

Plaintiff then appealed the trial court’s dismissal. He argued there was an error in the receiver’s appointment and all his acts were void. Schwalbach argued the doctrine of res judicata barred Plaintiff from advancing a claim that he could have litigated in the foreclosure proceedings. The Court of Appeal agreed and decided the trial court correctly determined the cause of action for wrongful foreclosure was barred by the doctrine of res judicata and upheld the dismissal of the firm’s client.

Here is a copy of the unpublished decision in the client’s favor.