Thursday, March 09, 2017

mortgage insurance - HAMP modification - extension of insurance premiums not proper

Fried v. JP Morgan Chase – 3d Cir. – March 9, 2017


Ginnine Fried bought a home in 2007 for $553,330. It was near high tide in the real estate market, but she had to believe she was getting a bargain, as an appraisal estimated the home’s value to be $570,000.

Fried borrowed $497,950 at a fixed interest rate to make her purchase and mortgaged the home as collateral. Because the loan-to-purchase-price ratio ($497,950 / $553,330) was more than 80%, JPMorgan Chase Bank, N.A. (“Chase”), the servicer for Fried’s mortgage (that is, the entity who performs the day-to-day tasks for the loan, including collecting payments), required her to obtain private mortgage insurance. Fried had to pay monthly premiums for that insurance until the ratio reached 78%; in other words, the principal of the mortgage loan needed to reduce to $431,597, which was projected to happen just before March 2016.

We now know that the housing market crashed in 2008, and the value of homes dropped dramatically. Fried, like many homeowners, had trouble making mortgage payments. Help came when Chase modified Fried’s mortgage under a HAMP, a federal aid program, by reducing the principal balance to $463,737. The rub was that Chase extended Fried’s mortgage insurance premiums an extra decade to 2026.


Whether it could do this depends on how we interpret the Homeowners Protection Act (“Protection Act”), 12 U.S.C. § 4901 et seq. Does it permit a servicer to rely on an updated property value, estimated by a broker, to recalculate the length of a homeowner’s mortgage insurance obligation following a modification or must the ending of that obligation remain tied to the initial purchase price of the home? We conclude the Protection Act requires the latter.

due process - impartial tribunal - actual bias v. unacceptable risk of bias - US SCt

Rippo v. Baker – US SCt – March 6, 2017


Criminal conviction reversed where defendant moved to disqualify judge, who was subject of federal investigation in with the state DA’s office had participated.

State supreme court’s use of actual bias standard was improper.  Under U.S. Supreme Court precedents “the Due Process Clause may sometimes demand recusal even when a judge “ ‘ha[s] no actual bias.’ ” Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 825 (1986). Recusal is required when, objectively speaking, “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Withrow v. Larkin, 421 U. S. 35, 47 (1975); see Williams v. Pennsylvania, 579 U. S. ___, ___ (2016) (slip op., at 6) (“The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias” (internal quotation marks omitted)).


The decision in Bracy v. Gramley, 520 U. S. 899 (1997) is not to the contrary:   Although the Court explained that the petitioner there had pointed to facts suggesting actual, subjective bias, it did not hold that a litigant must show as a matter of course that a judge was “actually biased in [the litigant’s] case,” . . . . much less that he must do so when, as here, he does not allege a theory of “camouflaging bias.” The Nevada Supreme Court did not ask the question that the  SCt precedents require: whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable.

Wednesday, March 08, 2017

arbitration - appeal - Pa. RCP 1311.1 - voluntary limit on $ damages - WCPL attorney fees not "damages"

Grimm v. Universal Medical Services, Inc. – Pa. Superior – March 1, 2017


On appeal from arbitration in breach of contract and wage case, Plaintiff elected to limit recovery money damages to $25,000, under Pa. R.C.P. 1311.1, in excchange for easing of evidentiary rules concerning introduction of documents.  Plaintiff prevailed on wage claim under Wage Payment and Collection law, 43 P.S. 260.1 et seq., which provides for attorney fees for prevailing plaintiff.   The court also granted plaintiff attorney fees.  The total award of damages plus attorney fees was greater than $25,000.00.

Held, attorney fee award under WCPL was not “damages” under Pa.R.C.P. 1311.1, citing LaRue v. McGuire, 885 A.2d 549 (Pa. Super. 2005); Dolan v. Fissel, 973 A.2d 1009 (Pa. Super. 2009); Allen v. Mellinger, 784 A.2d 762 (Pa. 2001) and language from WCPL that fee award is “in additionl to any judgment” awarded to plaintiff.


Tuesday, February 28, 2017

UC - late appeal - confusion/breakdown in admin. process



Court held that claimant was entitled to late appeal, nunc pro tunc, in overpayment case, because of

- UCSC failure to follow Referee’s remand instructions, issuing new determinations rather than investigating claimant’s allegations that her niece had hacked her UC account and that no UC payments had been deposited into claimant’s bank account

- confusion caused multiple (10) determinations - By making new decisions, on remand, under brand new docket numbers, the Service Center created sufficient confusion to constitute a breakdown in the administrative system. Indeed, the very number of decisions that were flying about created confusion and a consequent breakdown in the administrative system.

The court also found that the failure of Counsel’s secretary to log the appeal deadlines was not dispositive.   “[I]t was the breakdown in the administrative process that brought Claimant back for a second round of proceedings. “[H]ad the unemployment authorities conducted an investigation … on the issue of whether or not any type of identity theft, fraud by a third party, had occurred, [Claimant] probably wouldn’t have these cases filed.” . . . .Counsel took action to get the appeals filed as soon as he learned of  his secretary’s error, and there is no evidence to indicate that the lateness of Claimant’s appeals prejudiced the Department.”

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)



Monday, February 27, 2017

UC - due process - notice of issues



Held:  Claimant denied due process where notice of determination indicated one critical time period, but another period was subject of the hearing.

Claimant appeared at the hearing with documentary evidence detailing his work injury, medical treatment, and leave of absence during the period of November 20, 2014 through December 1, 2014,  identified in the Notice of Determination as the basis for his ineligibility for unemployment benefits. However, the Referee based the decision on events that allegedly took place on December 2, 2014 through December 8, 2014.

Claimant had no notice that these events could form the basis for denying him unemployment compensation.  Claimant was clearly without notice that he would need to produce witnesses for another time period, given that both Employer and Claimant testified that a coworker was present with Claimant during the events that allegedly took place December 2, 2014 through December 8, 2014 and that he acted as an interpreter for Claimant at work.

Whether or not Claimant would have chosen to call this coworker to offer testimony to dispute Employer’s version of events, due process requires that Claimant must be given the opportunity to do so and to otherwise defend against any allegations that would serve as a basis to deny him unemployment compensation benefits. The lack of proper notice of the grounds for denying him unemployment benefits denied Claimant due process of law. Hanover Concrete Co. v. Unemployment Compensation Board of Review, 402 A.2d 720, 721 (Pa. Cmwlth. 1984).

In Sterling v. UCBR, 474 A.2d 389 (Pa. Cmwlth. 1984), it was held that a claimant’s right to due process is violated when a referee issues a decision based on facts that were not addressed by the Department’s Notice of Determination and were instead raised for the first time at a hearing before a referee,

It has long been accepted that the constitutional guarantee of due process of law is equally applicable to administrative proceedings as it is to judicial proceedings. Included in this concept of due process is the requirement that such notice must at the very least contain a sufficient listing and explanation of any charges so that the individual can know against what charges he must defend himself if he can. Thus notice is integrally linked to the right to be heard, for without notice, litigants are ill-equipped to assert their rights and defend against claims.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)



UC - vol. quit - child care issues - on-call job - short advance notice

Vital Support Home Health Care Agency v. UCBR – Cmwlth. Court – Feb. 24, 2017 – unreported memorandum decision


Claimant had good cause to quit her job as home health aid where, after her long-time client moved, employer offered her only on-call work with only one-hour advance notice.  Claimant had three young children and needed child care.

The inability to find childcare on short notice, with communication to the employer, may constitute a necessitous and compelling cause for voluntarily terminating employment. Truitt v. UCBR, 589 A.2d 208, 210 (Pa. 1991); Blakely v. UCBR, 464 A.2d 695, 696 (Pa. Cmwlth. 1983). However, generally in order to justify quitting based on lack of childcare, a claimant must establish that he or she exhausted all other alternative childcare arrangements before voluntarily terminating employment. Beachem v. UCBR, 760 A.2d 68, 72 (Pa. Cmwlth. 2000).  Claimant did so in this case
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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)



Sunday, February 26, 2017

civil procedure - limited partnership - representation by non-attorney general partner allowed

Jamestown Condominium, v. Sofayov et al. – Cmwlth. Court – unreported memorandum opinion – February 22, 2017


Non-attorney general partner of a limited partnership had the right to represent the partnership in court under the rationale set out in In re Lawrence County Tax Claim Bureau, 998 A.2d 675 (Pa. Cmwlth. 2010), and sec. 2501(a) of the Judicial Code, 42 Pa. C.S. 2501(a). (In all civil matters before any tribunal every litigant shall have a right to be heard, by himself and his counsel, or by either of them.)


civil procedure - post-trial motions - supporting brief not required - Pa. R.C.P. 227.1(b)(2)

Williston Township v. Main Line Gardens, Inc., et al. – Supreme Court of Pa. – February 22, 2017

Held:  Pa. R.C.P. 227.1(b)(2) concerning preservation of issues for appeal in a motion for post-trial relief does not require the moving party to file a supporting brief.

Post-trial motions serve an important function in the adjudicatory process because they provide the trial court with an opportunity to correct errors in its ruling and avert the need for appellate review. . . .In 1984, this Court adopted Rules 227.1 through 227.4 to establish uniform procedures for post-trial relief in actions at law and equity, and actions tried with or without a jury. . . .

Rule 227.1 addresses waiver at the trial court level, “as a matter of the trial court’s post-trial power.”  . . .Rule 227.1(b)5 establishes that issues not preserved either before or at trial, see Pa.R.C.P. 227.1(b)(1), or in post-trial motions, see Pa.R.C.P. 227.1(b)(2), are waived. As this Court ruled in Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998), Rule 227.1 “requires parties to file post-trial motions in order to preserve issues for appeal,” and “[i]f an issue has not been raised in a post-trial motion, it is waived for appeal purposes.” Id. at 54.

The Commonwealth Court erred in ruling that Main Line waived the issues set forth in its post-trial motions for failing to file briefs in support thereof. Main Line conformed with the dictates of Rule 227.1 to preserve its issues for appeal by filing post-trial trial motions that complied with Rule 227.1(b)(2). Main Line’s post-trial motions set forth the requested grounds for relief and the theories in support thereof. Importantly, Rule 227.1(b)(2) contains no requirement that parties file briefs or present argument with respect to the issues specified in the motion in order to preserve them for appeal.” [emphasis in original].


Wednesday, February 08, 2017

UC - vol. quit - medical issues - duty to preserve employment

St. Clair Hospital v. UCBR – Cmwlth. Court – en banc (4-3) – February 2, 2017


Held that claimant “did nokt take all reasonable and necessary steps to preserve her employment,” where
- employer game her list of 132 open positions
- employer specified two job from list that CL could do
- CL did not contact ER about the two job or apply for any open position specified by employer.

The two primary cases discussed were
- Genetin v. UCBR – 451 A.2d 1353 (Pa. 1982), and
-  Nolan v. UCBR – 797 A.2d 1042 (Pa. Cmwlth. 2002)

The dissents argued that
- the record “lacked sufficient evidence that the employer is able to provide...suitable work”
- the majority opinion ran counter to Genetin – employer did not take steps to provide suitable work once CL told ER of medical issue
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This case is also reported in the PLAN Legal Update  http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.
If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


Thursday, January 26, 2017

consumer - FCRA - unauthorized disclosure of personal information - injury - standing

In re Horizon Healthcare Services – 3d Cir. – January 20, 2017


The dispute at the bottom of this putative class action began when two laptops, containing sensitive personal information, were stolen from health insurer Horizon Healthcare Services, Inc.

The four named Plaintiffs filed suit on behalf of themselves and other Horizon customers whose personal information was stored on those laptops. They allege willful and negligent violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., as well as numerous violations of state law.    Essentially, they say that Horizon inadequately protected their personal information.

The District Court dismissed the suit under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. According to the Court, none of the Plaintiffs had claimed a cognizable injury because, although their personal information had been stolen, none of them had adequately alleged that the information was actually used to their detriment.  We will vacate and remand.

In light of the congressional decision to create a remedy for the unauthorized transfer of personal information, a violation of FCRA gives rise to an injury sufficient for Article III standing purposes. Even without evidence that the Plaintiffs’ information was in fact used improperly, the alleged disclosure of their personal information created a de facto injury. Accordingly, all of the Plaintiffs suffered a cognizable injury, and the Complaint should not have been dismissed under Rule 12(b)(1).
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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


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