rate requires that another state’s law apply, this is a good place to recite that Arkansas law applies to recording, perfection and foreclosure, and State X’s law to the rest. For opinion purposes, if you are relying on certain facts in order to choose another state’s law, say so, fact by fact.11 (10) Other Waivers – Dower, curtesy, homestead and appraisements may be waived with redemption or in some separate place, but, again, make sure all such waivers are covered somewhere, clearly and specifically. (11) Non-Merger – The lender can provide for it in the mortgage, but preventing merger of the fee and the mortgage when the lender acquires the fee almost always has to be addressed specifically in a foreclosure, not before. It generally is not an appropriate subject for an opinion at all. (12) Extensions – While a recital in the document is probably not necessary to produce that right, it is not a bad idea to suggest to the lender that the document specifically give the mortgagee the right to unilaterally effect it by recorded document, because standard form mortgages usually call for execution of an extension by both the mortgagor and the mortgagee. This may be especially important if the five-year statute of limitations is about to run and the borrower won’t or can’t (because of jail and/or bankruptcy, for instance) sign an extension.12 (13) Single Action and Partial Foreclosure – These items come up most often in the opinion context. The document may allow foreclosing on real estate collateral one piece at a time, but the law does not, and you may have to craft a qualification for your opinion that explains what is required
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to preserve priorities when, for example, a foreclosing lender has real estate collateral in different counties or states.13 (14) State Specific Riders – If the lender does not want its forms tinkered with, but is comfortable with a rider covering such things as the single-action rule and partial foreclosures, the rider can be very useful. This is not a definitive checklist by any means and you will certainly want to draft one that works for you. But, the practice of law is not going to become less stressful on its own any time soon, the pressure for greater efficiency and cost-effectiveness is clearly increasing, technology is producing tighter deadlines and shorter turn-arounds, and lawyers are squeezed to assume greater exposure for smaller fees. Hopefully, this suggested methodology will help, at least a little. Endnotes: 1. See Selig, J. S. and Barrier, W. C., “Third Party Legal Opinions: Has Some Order
Come Out of the Chaos?” The Arkansas Lawyer, October 1992 and Summer 1993. 2. Natl. Bank of Eastern Ark. v. Blankenship, 177 F. Supp. 667 (E.D. Ark. 1959). 3. Ark. Code Ann. § 14-15-402. 4. Ark. Code Ann. §§ 18-40-103 and 18-49-101. 5. Pettigrew v. Pettigrew, 172 Ark. 647, 291 S. W. 90 (1927). 6. Ark. Code Ann. § 18-49-106. 7. Ark. Code Ann. §§ 16-47-207 and 18-12-201 et seq. 8. Jacoway v. Gault, 30 Ark. 190 (1859). 9. National Home Centers v. First Arkansas Valley Bank, 366 Ark. 522, 237 S.W.3rd 60 (2006). 10. Ark. Code Ann. § 18-50-116(c). 11. Wiseman v. State Bank & Trust, 313 Ark. 289, 854 S.W.2d 725 (1993). 12. In Re Shamus Holdings, Debtor, 2009 WL 2407664 (Bkrtcy, D. Mass.); Ark. Code Ann. §§ 18-49-101 and 18-40-103. 13. Steelman v. Planters Prod. Credit Ass’n, 285 Ark. 217, 685 S.W.2d 800 (1985). n
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Call John Selva 501-291-1620 www.205NWoodrow.info THE HILLCREST EXPERTS! Vol. 46 No. 2/Spring 2011 The Arkansas Lawyer
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