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Tag Archives: Waiver

Arbitration – Motion to Compel – Waiver – Real Property – Mortgages — Commercial Foreclosure (access required)

Wells Fargo Bank, N.A. v. EGIS 521, LLC Defendants did not demand arbitration until approximately 16 months after the commencement of this commercial foreclosure action, after defendants had enjoyed the benefit of discovery, and after the plaintiff-bank had incurred time and expense in engaging in discovery and preparing its motions to compel and for summary judgment.

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Criminal Practice – PCR – Constitutional – Jury Trial Right – Waiver – Ineffective Assistance of Counsel (access required)

Moore v. State Even though petitioner’s trial counsel testified that petitioner definitely wanted a bench trial, counsel had little recollection of his discussions with petitioner about a jury trial versus a bench trial, and petitioner testified that he wanted a jury trial.

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Criminal – Sentencing – Appeals – Guilty Plea – ‘Any Sentence’ – Waiver (access required)

U.S. v. Thornsbury A convicted felon pleading guilty to possession of ammunition, who waived his right to appeal “any sentence,” cannot seek to have his sentence on the firearm charge reduced in light of his assistance to the government in prosecuting an unrelated case, and the 4th Circuit dismisses this appeal of the district court’s denial of the government’s motion for a sentence reduction pursuant to Fed. Rule Crim. P. 35(b).

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Insurance – Homeowners – Replacement Cost Provision – Breach of Contract Claim – Appraisal Process – Waiver (access required)

Coker v. Fireman’s Fund Insurance Co. The homeowners’ insurance policy at issue says that the insured must “agree to ... repair or rebuild the Dwelling or Other Structure with equivalent construction” in order for the policy’s full-cost replacement coverage provision to apply. There is no express language limiting payment until after reconstruction is complete. The defendant-insurer is not entitled to summary judgment based on the fact that plaintiffs have not yet incurred the replacement costs. The insurer’s motion for summary judgment or, in the alternative, to compel appraisal is denied.

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Constitutional – Jury Trial – Waiver – Real Property – Foreclosure — Mortgages — Promissory Note – Counterclaims – Tort/Negligence (access required)

Wachovia Bank, N.A. v. Blackburn Although the prominent jury trial waiver in defendants’ promissory notes is valid and binding, it does not apply to defendants’ counterclaims, which are based on their allegations that the bank partnered with a developer and made misrepresentations about the properties being sold and the construction of amenities. We affirm the trial court’s ruling that defendants waived their right to a jury trial in matters related to the promissory notes and other loan documents. We reverse the trial court’s ruling that defendants’ counterclaims are encompassed by the waiver.

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Arbitration – Labor & Employment – Application – Employment Contract – Merger Clause – Waiver – Litigation Participation (access required)

Davis v. KB Home of South Carolina, Inc. Even though there was an arbitration clause in the employment application that plaintiff filled out, the parties’ subsequent employment contract did not have an arbitration clause, and it did have a merger clause. Thus, plaintiff is not required to submit his wrongful termination claim to arbitration. We affirm the circuit court’s denial of defendants’ motion to compel arbitration.

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Criminal Practice – Right to Remain Silent – Miranda Warnings – Waiver – 17-Year-Old Special Education Student – Evidence – Surveillance Footage – Failure to Preserve – Grand Jury Proceedings – Prior Inconsistent Statements (access required)

State v. Moses. (Lawyers Weekly No. 011-132-10, 11 pp.) (Daniel F. Pieper, J.) Appealed from Greenville County Circuit Court. (John C. Few, J.) S.C. App. Click here for the full text of the opinion. Holding: Even though the 17-year-old special ...

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