Quinn v. Bupp - Superior Court - June 21, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a09030_08.pdf
Seller breached sales agreement concerning commercial property. The trial court ordered specific performance, but both parties appealed concerning consequential damages. The appellate court held that
1) increased cost of borrowing - Buyer could not recover increased borrowing costs due to increase in mortgage interest. Following the rule in Rusiski v. Pribonic, 515 A.2d 507 (Pa. 1986), the court held that "under contract principles, damages must be such as would naturally and ordinarily follow from the breach, must have been reasonably foreseeable and within the contemplation of the parties at the time they made the contract and must be capable of being proved with reasonable certainty. Changes in interest rates, while foreseeable, are not capable of being proven with reasonable certainty. Drastic fluctuations in interest rates over the recent past render it speculative for a court to award interest as damages in specific performance decrees.
2) lost profits - Buyer could recover the profits he lost because of the breach, since they were foreseeable, ascertainable, and readily calculable. They would have been paid to the buyer if the seller had not wrongfully refused to comply with the sales agreement
Tuesday, July 22, 2008
Monday, July 21, 2008
bankruptcy - exemption - objection - 30-day limit
In re Reilly - 3rd Circuit - July 21, 2008
http://www.ca3.uscourts.gov/opinarch/064290p.pdf
A Chapter 7 trustee who does not lodge a timely objection to a debtor’s claim of exemption of personal property may not move to sell the property if he later learns that the property value exceeds the amount of the claimed exemption.
Where, as here, the debtor indicates the intent to exempt her entire interest in a given property by claiming an exemption of its full value and the trustee does not object in a timely manner, the debtor is entitled to the property in its entirety.
Debtor is a cook with a one-person catering business. In her Schedule B and Schedule C, she listed "business equipment" as personal property with a value of $10,718 and claimed an exemption for the full value under 11 U.S.C. § 522(d)(6) and 11 U.S.C. § 522(d)(5).
The trustee did not object to the exemption within the 30-day period prescribed by Fed. R. Bank. P. 4003(b). He later sought an appraisal of the business equipment and determined it to have a value of approximately $17,200. He then filed a motion before the Bankruptcy Court to sell the business equipment in order to recoup the value, less the $10,718 exemption, for the bankruptcy estate. The Bankruptcy Court rejected this motion and agreed with the debtor that the property was fully exempt from the bankruptcy estate because the trustee had not filed a timely objection to the claim of exemption.
Under Fed. R. Bankr. P. 4003(b), the trustee, as a party in interest, has 30 days from the close of the creditors’ meeting under § 341(a) (or the date of filing any supplemental schedules or amendment to the exempt-property list, whichever is later) to object to any exemptions a debtor claimed on his or her Schedule C. If no objection is made, “the property claimed as exempt on [the Schedule C] is exempt.” 11 U.S.C. § 522(l).
Recognizing a split of authority of the issue, and relying primarily on Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), the court rejected the trustee's argument that Rule 4003 and § 522(l) only place a 30-day limit on the trustee’s ability to object to an exemption on the ground that it was not properly taken—that there is no statutory basis for claiming the exemption—and does not control objections to property valuation.
The court said that its holding "accords with bankruptcy’s promise of a fresh start. Once the period for objection lapses, all parties involved know what property belongs to the bankruptcy estate and what remains with the debtor. The debtor can then use that property with the knowledge that it is her own and will not be subject to later liquidation for the benefit of creditors. This is not the case where the debtor claims an exemption in an amount less than the value listed on the schedules. In that circumstance, the trustee is entitled to claim for the bankruptcy estate the value of the property in excess of the exemption sought, without the need for a timely objection....But where the debtor lists a value for the property and claims an exemption in the same amount, the trustee is on notice of the debtor’s valuation and has ample time to seek confirmation that the debtor’s claimed value represents the true worth of the asset."
The trustee’s concern that the holding today will encourage gamesmanship among crafty debtors who may seek to undervalue their property with the hope of having it bypass the bankruptcy estate is answer by the fact that "there are significant protections in place for both the trustee and the bankruptcy estate....Moreover, on the facts here, there is no reason to suspect bad behavior on the part of the debtor. Indeed, it is quite to the contrary. If the trusteee discovered bad faith by the debtor, bankruptcy and criminal law allow recourse."
http://www.ca3.uscourts.gov/opinarch/064290p.pdf
A Chapter 7 trustee who does not lodge a timely objection to a debtor’s claim of exemption of personal property may not move to sell the property if he later learns that the property value exceeds the amount of the claimed exemption.
Where, as here, the debtor indicates the intent to exempt her entire interest in a given property by claiming an exemption of its full value and the trustee does not object in a timely manner, the debtor is entitled to the property in its entirety.
Debtor is a cook with a one-person catering business. In her Schedule B and Schedule C, she listed "business equipment" as personal property with a value of $10,718 and claimed an exemption for the full value under 11 U.S.C. § 522(d)(6) and 11 U.S.C. § 522(d)(5).
The trustee did not object to the exemption within the 30-day period prescribed by Fed. R. Bank. P. 4003(b). He later sought an appraisal of the business equipment and determined it to have a value of approximately $17,200. He then filed a motion before the Bankruptcy Court to sell the business equipment in order to recoup the value, less the $10,718 exemption, for the bankruptcy estate. The Bankruptcy Court rejected this motion and agreed with the debtor that the property was fully exempt from the bankruptcy estate because the trustee had not filed a timely objection to the claim of exemption.
Under Fed. R. Bankr. P. 4003(b), the trustee, as a party in interest, has 30 days from the close of the creditors’ meeting under § 341(a) (or the date of filing any supplemental schedules or amendment to the exempt-property list, whichever is later) to object to any exemptions a debtor claimed on his or her Schedule C. If no objection is made, “the property claimed as exempt on [the Schedule C] is exempt.” 11 U.S.C. § 522(l).
Recognizing a split of authority of the issue, and relying primarily on Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), the court rejected the trustee's argument that Rule 4003 and § 522(l) only place a 30-day limit on the trustee’s ability to object to an exemption on the ground that it was not properly taken—that there is no statutory basis for claiming the exemption—and does not control objections to property valuation.
The court said that its holding "accords with bankruptcy’s promise of a fresh start. Once the period for objection lapses, all parties involved know what property belongs to the bankruptcy estate and what remains with the debtor. The debtor can then use that property with the knowledge that it is her own and will not be subject to later liquidation for the benefit of creditors. This is not the case where the debtor claims an exemption in an amount less than the value listed on the schedules. In that circumstance, the trustee is entitled to claim for the bankruptcy estate the value of the property in excess of the exemption sought, without the need for a timely objection....But where the debtor lists a value for the property and claims an exemption in the same amount, the trustee is on notice of the debtor’s valuation and has ample time to seek confirmation that the debtor’s claimed value represents the true worth of the asset."
The trustee’s concern that the holding today will encourage gamesmanship among crafty debtors who may seek to undervalue their property with the hope of having it bypass the bankruptcy estate is answer by the fact that "there are significant protections in place for both the trustee and the bankruptcy estate....Moreover, on the facts here, there is no reason to suspect bad behavior on the part of the debtor. Indeed, it is quite to the contrary. If the trusteee discovered bad faith by the debtor, bankruptcy and criminal law allow recourse."
consumer - used cars - proposed FTC reg
http://edocket.access.gpo.gov/2008/pdf/E8-16634.pdf
SUMMARY: The FTC requests public comments on its Used Motor Vehicle Trade Regulation Rule.
DATES: Written comments relating to the Used Car Rule must be received by September 19, 2008.
I. Background
The Commission promulgated the Used Car Rule in 1984 and the Rule became effective in 1985.2 The Used Car Rule is intended primarily to prevent oral misrepresentations and unfair omissions of material facts by used car dealers concerning warranty coverage. \
To accomplish that goal, the Rule provides a uniform method for disclosing warranty information on a window sticker called the ‘‘Buyers Guide’’ that dealers are required to display on used cars. The Rule requires used car dealers to disclose on the Buyers Guide whether they are offering a used car for sale with a dealer’s warranty and, if so, the basic terms, including the duration of coverage, the percentage of total repair costs to be paid by the dealer, and the exact systems covered by the warranty.
The Rule additionally provides that the Buyers Guide disclosures are to be incorporated by reference into the sales contract, and are to govern in the event of an inconsistency between the Buyers Guide and the sales contract. The Rule requires Spanish language versions of the Buyers Guide when dealers conduct sales in Spanish.
III. Issues for Comment
The Commission requests written comment on any or all of the following questions. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and reference to empirical data or other evidence wherever available and appropriate.
A. General Issues
(1) Is there a continuing need for the Rule? Why or why not?
(2) What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?
(3) What modifications, if any, should be made to the Rule to increase its benefits to consumers?
0 F(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule imposes on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(4) What impact has the Rule had on the flow of truthful information to consumers and on the flow of deceptive information to consumers?
(5) What significant costs has the Rule imposed on consumers? What evidence supports the asserted costs?
(6) What modifications, if any, should be made to the Rule to reduce the costs imposed on consumers?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(7) How have the 1995 amendments to the Rule affected purchasers of used motor vehicles? How have the 1995 amendments to the Rule affected used motor vehicle dealers? Please provide any evidence that has become available since 1995 concerning the costs, benefits, and effectiveness of the Rule. Does this new information indicate that the Rule should be modified? If so, why, and how? If not, why not?
(8) What benefits, if any, has the Rule provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?
(9) What modifications, if any, should be made to the Rule to increase its benefits to businesses, and in particular to small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule impose on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(10) What significant costs, including costs of compliance, has the Rule imposed on businesses, and in particular on small businesses? What evidence supports the asserted costs?
(11) What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, and in particular on small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(12) What evidence is available concerning the degree of industry compliance with the Rule? To what extent has there been a reduction in deceptive oral representations and unfair omissions made by used car dealers concerning warranty coverage since the Rule was issued? Please provide any supporting evidence. Does this evidence indicate that the Rule should be modified? If so, why, and how? If not, why not?
(13) What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?
(14) Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?
(a) What evidence supports the asserted conflicts?
(b) With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?
SUMMARY: The FTC requests public comments on its Used Motor Vehicle Trade Regulation Rule.
DATES: Written comments relating to the Used Car Rule must be received by September 19, 2008.
I. Background
The Commission promulgated the Used Car Rule in 1984 and the Rule became effective in 1985.2 The Used Car Rule is intended primarily to prevent oral misrepresentations and unfair omissions of material facts by used car dealers concerning warranty coverage. \
To accomplish that goal, the Rule provides a uniform method for disclosing warranty information on a window sticker called the ‘‘Buyers Guide’’ that dealers are required to display on used cars. The Rule requires used car dealers to disclose on the Buyers Guide whether they are offering a used car for sale with a dealer’s warranty and, if so, the basic terms, including the duration of coverage, the percentage of total repair costs to be paid by the dealer, and the exact systems covered by the warranty.
The Rule additionally provides that the Buyers Guide disclosures are to be incorporated by reference into the sales contract, and are to govern in the event of an inconsistency between the Buyers Guide and the sales contract. The Rule requires Spanish language versions of the Buyers Guide when dealers conduct sales in Spanish.
III. Issues for Comment
The Commission requests written comment on any or all of the following questions. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and reference to empirical data or other evidence wherever available and appropriate.
A. General Issues
(1) Is there a continuing need for the Rule? Why or why not?
(2) What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?
(3) What modifications, if any, should be made to the Rule to increase its benefits to consumers?
0 F(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule imposes on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(4) What impact has the Rule had on the flow of truthful information to consumers and on the flow of deceptive information to consumers?
(5) What significant costs has the Rule imposed on consumers? What evidence supports the asserted costs?
(6) What modifications, if any, should be made to the Rule to reduce the costs imposed on consumers?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(7) How have the 1995 amendments to the Rule affected purchasers of used motor vehicles? How have the 1995 amendments to the Rule affected used motor vehicle dealers? Please provide any evidence that has become available since 1995 concerning the costs, benefits, and effectiveness of the Rule. Does this new information indicate that the Rule should be modified? If so, why, and how? If not, why not?
(8) What benefits, if any, has the Rule provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?
(9) What modifications, if any, should be made to the Rule to increase its benefits to businesses, and in particular to small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule impose on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(10) What significant costs, including costs of compliance, has the Rule imposed on businesses, and in particular on small businesses? What evidence supports the asserted costs?
(11) What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, and in particular on small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(12) What evidence is available concerning the degree of industry compliance with the Rule? To what extent has there been a reduction in deceptive oral representations and unfair omissions made by used car dealers concerning warranty coverage since the Rule was issued? Please provide any supporting evidence. Does this evidence indicate that the Rule should be modified? If so, why, and how? If not, why not?
(13) What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?
(14) Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?
(a) What evidence supports the asserted conflicts?
(b) With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?
child support enforcement - medical support - federal regs
http://edocket.access.gpo.gov/2008/pdf/E8-15771.pdf
SUMMARY: This regulation revises Federal requirements for establishing and enforcing medical support obligations in Child Support Enforcement (CSE) program cases receiving services under title IV–D of the Social Security Act (the Act).
The changes: require that all support orders in the IV–D program address medical support; redefine reasonable-cost health insurance; require health insurance to be accessible, as defined by the State; and make conforming changes to the Federal interstate, substantialcompliance audit, and State selfassessment requirements.
DATES: Effective Date: This regulation is effective July 21, 2008.
SUMMARY: This regulation revises Federal requirements for establishing and enforcing medical support obligations in Child Support Enforcement (CSE) program cases receiving services under title IV–D of the Social Security Act (the Act).
The changes: require that all support orders in the IV–D program address medical support; redefine reasonable-cost health insurance; require health insurance to be accessible, as defined by the State; and make conforming changes to the Federal interstate, substantialcompliance audit, and State selfassessment requirements.
DATES: Effective Date: This regulation is effective July 21, 2008.
Friday, July 18, 2008
Pennsylvania Bulletin Highlights, July 19, 2008
Link: http://www.pabulletin.com/secure/data/vol38/38-29/index.html
Highlights of items of interest to the Poverty Law Community:
Recent Actions during the 2008 Regular Session of the General Assembly
http://www.pabulletin.com/secure/data/vol38/38-29/1316.html
DPW - child care - income limits - increase
http://www.pabulletin.com/secure/data/vol38/38-29/1339.html
DPW - MA - prior authorization (proposed) - radiology services
http://www.pabulletin.com/secure/data/vol38/38-29/1340.html
Sign language interpreters/transliterators - proposed final rules filed with IRRC
http://www.pabulletin.com/secure/data/vol38/38-29/1349.html
Highlights of items of interest to the Poverty Law Community:
Recent Actions during the 2008 Regular Session of the General Assembly
http://www.pabulletin.com/secure/data/vol38/38-29/1316.html
DPW - child care - income limits - increase
http://www.pabulletin.com/secure/data/vol38/38-29/1339.html
DPW - MA - prior authorization (proposed) - radiology services
http://www.pabulletin.com/secure/data/vol38/38-29/1340.html
Sign language interpreters/transliterators - proposed final rules filed with IRRC
http://www.pabulletin.com/secure/data/vol38/38-29/1349.html
UC - willful misconduct - drug testing - right to challenge drug test
Cinram Manufacturing, LLC v. UCBR - July 18, 2008 - Commonwealth Court - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/2051CD07_7-18-08.pdf
The court upheld the Board decision that the employer had not proved willful misconduct, despite having produced drug test results - to which claimant did not object - showing a positive drug test.
Claimant produced countervailing evidence, including a letter from his doctor detailing how having taken cough medicine and eaten a poppy seed roll could have produced a false positive result. The referee and Board found that claimant's evidence was “credible and more compelling and logical” than that presented by employer and established that the test result was a false positive.
Under Section 402(e.1) of the Law, an employee is ineligible for unemployment compensation in any week in which (a) his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, and (b) the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement. 43 P.S. § 802(e.1). The employer introduced evidence which could have satisfied all requirements of Section 402(e.1) had it been accorded different weight and persuasive value.
However, proof of the elements of sec. 402(e.1) are not, per se, dispositive. Claimant has a right to dispute the accuracy of the drug test. The court rejected as "absurd" the employer's argument that, because it established the required elements listed in sec. 402(e.1), the referee and Board should not have examined the accuracy of the drug test.
The Board found credible Claimant’s evidence that lawful items he had consumed caused his drug test to produce a false positive result. While Employer interprets this as placing an additional burden on employers, it is merely the Board serving in its capacity as fact-finder. In unemployment compensation cases, the Board serves as final fact-finder and resolves any conflicts in evidence or credibility of witnesses.
The Board did not ignore the the drug test. Rather, it was given "probative value." UGI Utilities, Inc. v. UCBR, 851 A.2d 240, 252 (Pa. Cmwlth. 2004). The Board considered the positive test result, but accorded it no credibility, instead accepting substantial evidence which impugned its reliability. The Board clearly concluded that Claimant rebutted the positive test results with credible evidence that consumption of poppy seed roll and over-the-counter medicine resulted in a false positive test. Based on that, the Board concluded that he did not violate employer’s drug policy. "We are not in a position to question the Board’s finding. Thus, there is no reason for us to reverse this decision."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2051CD07_7-18-08.pdf
The court upheld the Board decision that the employer had not proved willful misconduct, despite having produced drug test results - to which claimant did not object - showing a positive drug test.
Claimant produced countervailing evidence, including a letter from his doctor detailing how having taken cough medicine and eaten a poppy seed roll could have produced a false positive result. The referee and Board found that claimant's evidence was “credible and more compelling and logical” than that presented by employer and established that the test result was a false positive.
Under Section 402(e.1) of the Law, an employee is ineligible for unemployment compensation in any week in which (a) his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, and (b) the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement. 43 P.S. § 802(e.1). The employer introduced evidence which could have satisfied all requirements of Section 402(e.1) had it been accorded different weight and persuasive value.
However, proof of the elements of sec. 402(e.1) are not, per se, dispositive. Claimant has a right to dispute the accuracy of the drug test. The court rejected as "absurd" the employer's argument that, because it established the required elements listed in sec. 402(e.1), the referee and Board should not have examined the accuracy of the drug test.
The Board found credible Claimant’s evidence that lawful items he had consumed caused his drug test to produce a false positive result. While Employer interprets this as placing an additional burden on employers, it is merely the Board serving in its capacity as fact-finder. In unemployment compensation cases, the Board serves as final fact-finder and resolves any conflicts in evidence or credibility of witnesses.
The Board did not ignore the the drug test. Rather, it was given "probative value." UGI Utilities, Inc. v. UCBR, 851 A.2d 240, 252 (Pa. Cmwlth. 2004). The Board considered the positive test result, but accorded it no credibility, instead accepting substantial evidence which impugned its reliability. The Board clearly concluded that Claimant rebutted the positive test results with credible evidence that consumption of poppy seed roll and over-the-counter medicine resulted in a false positive test. Based on that, the Board concluded that he did not violate employer’s drug policy. "We are not in a position to question the Board’s finding. Thus, there is no reason for us to reverse this decision."
Wednesday, July 16, 2008
consumer - RESPA - insurance kickbacks
Alexander, et al. v. WAMU, et al. - ED Pa. - June 30, 2008
http://www.paed.uscourts.gov/documents/opinions/08d0740p.pdf
The court rejected defendants' 12(b)(6) motion to dismiss class action complaint against lender for alleged violations of RESPA, 12 USC 2601 et seq., by collecting illegal referral or kickback payments in the form of reinsurance premiums. Plaintiffs obtained loans with down payments of less than 20% and were required to pay for private mortgage insurance from an insurer with whom WAMU had alleged captive reinsurance arrangement.
filed rate doctrine does not prohibit a RESPA suit
The filed rate doctrine states that where regulated companies are required by federal or state law to file proposed rates or charges with a governing regulatory agency, then any rate approved by that agency “is per se reasonable and unassailable in judicial proceedings brought by ratepayers”....The filed rate doctrine has no fraud exception; rates that are approved are per se reasonable even if obtained by fraud....“[E]very court that has considered [the issue] has rejected the notion that there is a fraud exception to the filed rate doctrine.”
However, the court found that the filed rate doctrine "does not bar the plaintiffs’ claim that defendants violated RESPA through an alleged kickback or fee-splitting scheme through their mortgage lender’s captive reinsurance arrangement. While the doctrine bars direct challenges to the insurance rate structure set by a state, it does not prohibit plaintiffs from bringing suit under RESPA for a violation of fair business practices through the use of illegal kickback payments.
RESPA safe harbor provision
RESPA's safe harbor provision states that nothing shall prohibit “the payment to any person of a bona fide salary or compensation or other payment for goods or 8 facilities actually furnished or for services actually performed.” 12 U.S.C. § 2607(c)(2). HUD's two-prong test requires that the court evaluate: (1) “whether goods or facilities were actually furnished or services were actually performed for the compensation paid” and (2) “whether the payments are reasonably related to the value of the goods or facilities that were actually furnished or services that were actually performed.” Plaintiffs here "have sufficiently alleged that the payments in question are not covered by the safe harbor provision, since they say that some services were not actually performed.
Plaintiffs have Article III standing
The court followed the reasoning of Kahrer v. Ameriquest Mort. Co., 418 F. Supp. 2d 748 (W.D. Pa. 2006) rather than Morales v. Attorneys’ Title Ins. Fund, Inc., 983 F. Supp. 1418 (S.D. Fla. 1997) and concluded that under the plain language of the statute and its legislative history a plaintiff who is entitled to damages under § 8(d)(2) can seek three times the full amount he paid for any settlement services. Under the Kahrer line of cases, RESPA provides that plaintiffs have a right to purchase settlements services from providers who do not participate in an illegal kickback scheme. Therefore, plaintiffs’ failure to allege an overcharge for settlement services does not preclude a finding of injury in fact for the purposes of Article III standing.
Burford abstention does not apply
In Burford v. Sun Oil Co. the Supreme Court concluded that where complex issues of state administrative law are presented a federal court may in its discretion “stay its hand” and abstain from hearing the case. 319 U.S. 315, 334 (1943). The Court of Appeals has explained: Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar;” or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
“While Burford is concerned with protecting complex state administrative processes from undue federal interferences, it does not require abstention whenever there is such a process”....Burford abstention does not apply to this case, where plaintiffs are claiming that defendants through their captive reinsurance program violated the anti-kickback provision of RESPA. Plaintiffs are not pursuing a state insurance code claim or challenging a state administrative decision, so their remedies are not limited to state administrative or court proceedings, and the mere existence of a state administrative procedures for insurance claims does not require abstention. Additionally, there are no prior or ongoing state proceedings with which the present action interferes.
Further, the second prong of the Burford doctrine – whether there are difficult questions of state law impacting public policy or exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy – is not implicated in this case. Plaintiffs are not challenging the filed rate or any other state policies in this matter. They allege that defendants’ alleged kickback scheme – not defendants’ charged rate – violates RESPA, a federal statute. Therefore adjudication of this matter will not interfere with Pennsylvania’s efforts to maintain a comprehensive and coherent regulatory regime.
http://www.paed.uscourts.gov/documents/opinions/08d0740p.pdf
The court rejected defendants' 12(b)(6) motion to dismiss class action complaint against lender for alleged violations of RESPA, 12 USC 2601 et seq., by collecting illegal referral or kickback payments in the form of reinsurance premiums. Plaintiffs obtained loans with down payments of less than 20% and were required to pay for private mortgage insurance from an insurer with whom WAMU had alleged captive reinsurance arrangement.
filed rate doctrine does not prohibit a RESPA suit
The filed rate doctrine states that where regulated companies are required by federal or state law to file proposed rates or charges with a governing regulatory agency, then any rate approved by that agency “is per se reasonable and unassailable in judicial proceedings brought by ratepayers”....The filed rate doctrine has no fraud exception; rates that are approved are per se reasonable even if obtained by fraud....“[E]very court that has considered [the issue] has rejected the notion that there is a fraud exception to the filed rate doctrine.”
However, the court found that the filed rate doctrine "does not bar the plaintiffs’ claim that defendants violated RESPA through an alleged kickback or fee-splitting scheme through their mortgage lender’s captive reinsurance arrangement. While the doctrine bars direct challenges to the insurance rate structure set by a state, it does not prohibit plaintiffs from bringing suit under RESPA for a violation of fair business practices through the use of illegal kickback payments.
RESPA safe harbor provision
RESPA's safe harbor provision states that nothing shall prohibit “the payment to any person of a bona fide salary or compensation or other payment for goods or 8 facilities actually furnished or for services actually performed.” 12 U.S.C. § 2607(c)(2). HUD's two-prong test requires that the court evaluate: (1) “whether goods or facilities were actually furnished or services were actually performed for the compensation paid” and (2) “whether the payments are reasonably related to the value of the goods or facilities that were actually furnished or services that were actually performed.” Plaintiffs here "have sufficiently alleged that the payments in question are not covered by the safe harbor provision, since they say that some services were not actually performed.
Plaintiffs have Article III standing
The court followed the reasoning of Kahrer v. Ameriquest Mort. Co., 418 F. Supp. 2d 748 (W.D. Pa. 2006) rather than Morales v. Attorneys’ Title Ins. Fund, Inc., 983 F. Supp. 1418 (S.D. Fla. 1997) and concluded that under the plain language of the statute and its legislative history a plaintiff who is entitled to damages under § 8(d)(2) can seek three times the full amount he paid for any settlement services. Under the Kahrer line of cases, RESPA provides that plaintiffs have a right to purchase settlements services from providers who do not participate in an illegal kickback scheme. Therefore, plaintiffs’ failure to allege an overcharge for settlement services does not preclude a finding of injury in fact for the purposes of Article III standing.
Burford abstention does not apply
In Burford v. Sun Oil Co. the Supreme Court concluded that where complex issues of state administrative law are presented a federal court may in its discretion “stay its hand” and abstain from hearing the case. 319 U.S. 315, 334 (1943). The Court of Appeals has explained: Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar;” or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
“While Burford is concerned with protecting complex state administrative processes from undue federal interferences, it does not require abstention whenever there is such a process”....Burford abstention does not apply to this case, where plaintiffs are claiming that defendants through their captive reinsurance program violated the anti-kickback provision of RESPA. Plaintiffs are not pursuing a state insurance code claim or challenging a state administrative decision, so their remedies are not limited to state administrative or court proceedings, and the mere existence of a state administrative procedures for insurance claims does not require abstention. Additionally, there are no prior or ongoing state proceedings with which the present action interferes.
Further, the second prong of the Burford doctrine – whether there are difficult questions of state law impacting public policy or exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy – is not implicated in this case. Plaintiffs are not challenging the filed rate or any other state policies in this matter. They allege that defendants’ alleged kickback scheme – not defendants’ charged rate – violates RESPA, a federal statute. Therefore adjudication of this matter will not interfere with Pennsylvania’s efforts to maintain a comprehensive and coherent regulatory regime.
child abuse - expungement - discretionary authority of DPW
G.M. v. DPW - Commonwealth Court - July 16, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/300CD08_7-16-08.pdf
DPW did not act in bad faith, fraudulently, capriciously or otherwise abuse its power in rejecting petitioner's 2007 petition alleging that there was good cause to expunge a founded report of child abuse which took place in 1987. A court order was entered at that time, finding that petitioner had sexually abused his daughter. There was no appeal from that finding.
Petitioner alleged that there was good cause for his record to be expunged because he was rehabilitated. He said that (1) he had undergone medical and psychiatric treatment and therapy; (2) he deeply regretted his actions; (3) at the time of the abuse, he was going through a divorce, but he now is in a stable relationship; (4) he has rebuilt his relationship with his daughter; (5) he currently is enrolled in nursing school; and (6) the founded child abuse report harmed his chances of obtaining gainful employment
The Law provides that the DPW Secretary may amend or expunge any record at any time upon good cause shown and notice to the appropriate subjects of the report. 23 Pa. C.S. §6341(a)(1). This section grants the Secretary the discretionary authority to amend any record upon good cause shown. J.C. v. Department of Public Welfare, 720 A.2d 193 (Pa. Cmwlth. 1998). Our courts will not review the actions of government bodies or administrative tribunals involving the exercise of discretion in the absence of bad faith, fraud, capricious action or abuse of power, which did not exist here.
The trial court’s orders were presumptive evidence that the child abuse report was accurate, and petitioner did not dispute the finding of abuse.
http://www.courts.state.pa.us/OpPosting/CWealth/out/300CD08_7-16-08.pdf
DPW did not act in bad faith, fraudulently, capriciously or otherwise abuse its power in rejecting petitioner's 2007 petition alleging that there was good cause to expunge a founded report of child abuse which took place in 1987. A court order was entered at that time, finding that petitioner had sexually abused his daughter. There was no appeal from that finding.
Petitioner alleged that there was good cause for his record to be expunged because he was rehabilitated. He said that (1) he had undergone medical and psychiatric treatment and therapy; (2) he deeply regretted his actions; (3) at the time of the abuse, he was going through a divorce, but he now is in a stable relationship; (4) he has rebuilt his relationship with his daughter; (5) he currently is enrolled in nursing school; and (6) the founded child abuse report harmed his chances of obtaining gainful employment
The Law provides that the DPW Secretary may amend or expunge any record at any time upon good cause shown and notice to the appropriate subjects of the report. 23 Pa. C.S. §6341(a)(1). This section grants the Secretary the discretionary authority to amend any record upon good cause shown. J.C. v. Department of Public Welfare, 720 A.2d 193 (Pa. Cmwlth. 1998). Our courts will not review the actions of government bodies or administrative tribunals involving the exercise of discretion in the absence of bad faith, fraud, capricious action or abuse of power, which did not exist here.
The trial court’s orders were presumptive evidence that the child abuse report was accurate, and petitioner did not dispute the finding of abuse.
Tuesday, July 15, 2008
consumer - arbitration clause - duress, unconscionability - discovery
Hopkins v. Newday Financial, LLC - ED Pa. - June 30, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0759P.pdf
This memorandum order is meant to clarify a previous "limited discovery" order concerning "whether the arbitration agreements at issue are valid."
stay of legal actions if arbitration agreement is valid and binding
Under the Federal Arbitration Act, 9 U.S.C. § 3, federal courts are instructed to stay any suit in which an issue in dispute is properly referable to an arbitrator under a valid written arbitration agreement.
Before doing so, however, the court is obliged to satisfy itself that the arbitration agreement is valid and binding. Great W. Mortgage Corp. v. Peacock, 110 F.3d 222, 228 (3d Cir. 1997) (“Under the FAA the district court must be satisfied that the parties entered into a valid arbitration agreement.”). In making that determination, “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).
challenge to validity based on allegations of duress and unconscionability
In this case, plaintiffs seek to invalidate the arbitrations agreements on the grounds of duress and unconscionability. To consider these defenses, the court looks primarily to the law of Pennsylvania, because it is the forum state and appears to have a strong relationship with the agreements at issue. Gay v. CreditInform, 511 F.3d 369, 388 n.13 (3d Cir. 2007)
a) duress - Under Pennsylvania law, “[d]uress is defined as ‘that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness’”....
When the nature of the threat is economic, rather than physical, the doctrine of economic duress applies. “The important elements in the applicability of the doctrine of economic duress or business compulsion are that (1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate legal remedy”....Duress will not lie where the aggrieved party had the opportunity to consult with counsel before entering into the allegedly coercive contract.
According to the named plaintiffs, they were forced to sign arbitration agreements in a compressed span of time under threat that their employment would terminate if they did not agree....[T]hey attest that, because the time for signing was so short, they were accorded no opportunity to seek the review of counsel. Id. Plaintiffs’ affidavits appear to present a set of circumstances that are at least arguably coercive enough to constitute duress under Pennsylvania law.
b) unconscionability - In Pennsylvania, “a contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Salley v. Option One Mortgage Corp., 925 A.2d 115, 119 (Pa. 2007). Unconscion- ability, then, has procedural and substantive aspects.
As to procedural unconscionability, the touchstone is whether the party challenging the agreement had any meaningful choice regarding acceptance of its provisions. Thibodeau v. Comcast Corp., 912 A.2d 874, 886 (Pa. Super. Ct. 2006). Here, the plaintiffs have averred that they were presented with a contract of adhesion, and were given no opportunity to negotiate. An agreement is substantively unconscionable if it is “unreasonably favorable to the drafter”....
Plaintiffs argue that the arbitration agreement is unreasonably favorable to [defendant] NewDay, inter alia, because the arbitral forum’s rule prohibiting plaintiffs from proceeding as a class action, and forcing them instead to proceed individually. A series of Pennsylvania cases have held that limiting the use of the class-action vehicle, if it raises costs to the point of effectively preventing individual redress, is substantively unconscionable. See, e.g., Thibodeau, 912 A.2d at 883-84. The open question here is whether the forum’s rules raise costs to that level.
In addition, plaintiffs allege systemic bias on the part of the arbitral forum. If proved, such bias could potentially render the arbitration agreement fundamentally unfair to plaintiffs. But, as plaintiffs admit, they cannot prove that claim without discovery.
c) discovery - It is the court’s view that plaintiffs’ submissions, at the very least, highlight several questions of fact relevant to the validity of the arbitration agreements. When faced with a fact-intensive question regarding the arbitrability of a dispute, it is within the court’s discretion to allow for limited discovery into whether the arbitration agreements at issue are valid....That was the intent of this court’s order....It was not the court’s intent to limit discovery only to the question of the arbitral forum’s alleged bias, but to allow discovery more broadly into all of the defenses to arbitration raised by plaintiffs, as all appear to call for the resolution of factual questions.
http://www.paed.uscourts.gov/documents/opinions/08D0759P.pdf
This memorandum order is meant to clarify a previous "limited discovery" order concerning "whether the arbitration agreements at issue are valid."
stay of legal actions if arbitration agreement is valid and binding
Under the Federal Arbitration Act, 9 U.S.C. § 3, federal courts are instructed to stay any suit in which an issue in dispute is properly referable to an arbitrator under a valid written arbitration agreement.
Before doing so, however, the court is obliged to satisfy itself that the arbitration agreement is valid and binding. Great W. Mortgage Corp. v. Peacock, 110 F.3d 222, 228 (3d Cir. 1997) (“Under the FAA the district court must be satisfied that the parties entered into a valid arbitration agreement.”). In making that determination, “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).
challenge to validity based on allegations of duress and unconscionability
In this case, plaintiffs seek to invalidate the arbitrations agreements on the grounds of duress and unconscionability. To consider these defenses, the court looks primarily to the law of Pennsylvania, because it is the forum state and appears to have a strong relationship with the agreements at issue. Gay v. CreditInform, 511 F.3d 369, 388 n.13 (3d Cir. 2007)
a) duress - Under Pennsylvania law, “[d]uress is defined as ‘that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness’”....
When the nature of the threat is economic, rather than physical, the doctrine of economic duress applies. “The important elements in the applicability of the doctrine of economic duress or business compulsion are that (1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate legal remedy”....Duress will not lie where the aggrieved party had the opportunity to consult with counsel before entering into the allegedly coercive contract.
According to the named plaintiffs, they were forced to sign arbitration agreements in a compressed span of time under threat that their employment would terminate if they did not agree....[T]hey attest that, because the time for signing was so short, they were accorded no opportunity to seek the review of counsel. Id. Plaintiffs’ affidavits appear to present a set of circumstances that are at least arguably coercive enough to constitute duress under Pennsylvania law.
b) unconscionability - In Pennsylvania, “a contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Salley v. Option One Mortgage Corp., 925 A.2d 115, 119 (Pa. 2007). Unconscion- ability, then, has procedural and substantive aspects.
As to procedural unconscionability, the touchstone is whether the party challenging the agreement had any meaningful choice regarding acceptance of its provisions. Thibodeau v. Comcast Corp., 912 A.2d 874, 886 (Pa. Super. Ct. 2006). Here, the plaintiffs have averred that they were presented with a contract of adhesion, and were given no opportunity to negotiate. An agreement is substantively unconscionable if it is “unreasonably favorable to the drafter”....
Plaintiffs argue that the arbitration agreement is unreasonably favorable to [defendant] NewDay, inter alia, because the arbitral forum’s rule prohibiting plaintiffs from proceeding as a class action, and forcing them instead to proceed individually. A series of Pennsylvania cases have held that limiting the use of the class-action vehicle, if it raises costs to the point of effectively preventing individual redress, is substantively unconscionable. See, e.g., Thibodeau, 912 A.2d at 883-84. The open question here is whether the forum’s rules raise costs to that level.
In addition, plaintiffs allege systemic bias on the part of the arbitral forum. If proved, such bias could potentially render the arbitration agreement fundamentally unfair to plaintiffs. But, as plaintiffs admit, they cannot prove that claim without discovery.
c) discovery - It is the court’s view that plaintiffs’ submissions, at the very least, highlight several questions of fact relevant to the validity of the arbitration agreements. When faced with a fact-intensive question regarding the arbitrability of a dispute, it is within the court’s discretion to allow for limited discovery into whether the arbitration agreements at issue are valid....That was the intent of this court’s order....It was not the court’s intent to limit discovery only to the question of the arbitral forum’s alleged bias, but to allow discovery more broadly into all of the defenses to arbitration raised by plaintiffs, as all appear to call for the resolution of factual questions.
Monday, July 14, 2008
custody - in camera interview of child - presence of counsel - expert evaluation - admission into record
Ottolini v. Barrett - Superior Court - July 14, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s39012_08.pdf
Pa. RCP 1915.11(b) mandates that counsel be present during in camera interview of child in custody case in which trial court relied at least in part on such interview. Sandra L.H. v. Joseph L.H., 444 A.2d 12241 (Pa. Super. 1982) is overruled to the extent that it may be inconsistent with the rule.
Remand is also required since a) the court relied on a psychological evaluation that was never entered into evidence, and b) the psychologist was not called as a witness or subject to cross-examination. Pa. CRP 1915.8(a).
http://www.courts.state.pa.us/OpPosting/Superior/out/s39012_08.pdf
Pa. RCP 1915.11(b) mandates that counsel be present during in camera interview of child in custody case in which trial court relied at least in part on such interview. Sandra L.H. v. Joseph L.H., 444 A.2d 12241 (Pa. Super. 1982) is overruled to the extent that it may be inconsistent with the rule.
Remand is also required since a) the court relied on a psychological evaluation that was never entered into evidence, and b) the psychologist was not called as a witness or subject to cross-examination. Pa. CRP 1915.8(a).
consumer - artibration - standard to vacate award
Gateway Funding Diversified Mortgage Services v. Field - ED Pa. - July 10, 20008
http://www.paed.uscourts.gov/documents/opinions/08D0790P.pdf
There was no basis in this case to overcome the "exceedingly deferential standard necessary to vacate, modify or amended an arbitration award which was sought to be confirmed under 9 USC sec. 9."
Section 9 of the Federal Arbitration Act (FAA) states that the court must grant an order confirming an arbitration award unless the award is vacated, modified, or corrected as prescribed in Sections 10 and 11 of this title. 9 U.S.C.A. § 9.
The review of an arbitration award is “extremely deferential” and vacatur is appropriate only in “exceedingly narrow” circumstances....An arbitration award may be set aside where there is an adequate showing of fraud, partiality, misconduct, violation of a specific command of law, or showing that enforcement would be contrary to public policy....The court’s ability to vacate an arbitration award is almost exclusively limited to these grounds, although an award found to be in manifest disregard of the law can also be vacated by the court.
In addition, procedural irregularities may result in such fundamental unfairness as to warrant the vacation of an arbitral award. For example, a court can vacate an arbitration award where an arbitrator received ex parte informati on to the prejudice of one of the parties; or where the arbitrator refused to admit certain evidence in rebuttal without giving parties warning about the application of evidentiary rules); or because the neutral arbitrator rendered decision without obtaining the signatures of the partisan arbitrators, so that there was a lack of evidence of any significant decision-making process by the majority of the board.
The net result of a court’s application of this standard is generally to affirm easily the arbitration award under this extremely deferential standard - a result that is squarely in line with the purpose behind the FAA where courts are tasked with reviewing an arbitration decision. When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's “improvident, even silly, fact-finding” does not provide a basis for a reviewing court to refuse to enforce the award.
In discussing the courts' limited role in reviewing the merits of arbitration awards, we have stated that “‘courts ... have no business weighing the merits of the grievance [or] considering whether there is equity in a particular claim.’ ”.../When the judiciary does so, “it usurps a function which ... is entrusted to the arbitration tribunal.”
http://www.paed.uscourts.gov/documents/opinions/08D0790P.pdf
There was no basis in this case to overcome the "exceedingly deferential standard necessary to vacate, modify or amended an arbitration award which was sought to be confirmed under 9 USC sec. 9."
Section 9 of the Federal Arbitration Act (FAA) states that the court must grant an order confirming an arbitration award unless the award is vacated, modified, or corrected as prescribed in Sections 10 and 11 of this title. 9 U.S.C.A. § 9.
The review of an arbitration award is “extremely deferential” and vacatur is appropriate only in “exceedingly narrow” circumstances....An arbitration award may be set aside where there is an adequate showing of fraud, partiality, misconduct, violation of a specific command of law, or showing that enforcement would be contrary to public policy....The court’s ability to vacate an arbitration award is almost exclusively limited to these grounds, although an award found to be in manifest disregard of the law can also be vacated by the court.
In addition, procedural irregularities may result in such fundamental unfairness as to warrant the vacation of an arbitral award. For example, a court can vacate an arbitration award where an arbitrator received ex parte informati on to the prejudice of one of the parties; or where the arbitrator refused to admit certain evidence in rebuttal without giving parties warning about the application of evidentiary rules); or because the neutral arbitrator rendered decision without obtaining the signatures of the partisan arbitrators, so that there was a lack of evidence of any significant decision-making process by the majority of the board.
The net result of a court’s application of this standard is generally to affirm easily the arbitration award under this extremely deferential standard - a result that is squarely in line with the purpose behind the FAA where courts are tasked with reviewing an arbitration decision. When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's “improvident, even silly, fact-finding” does not provide a basis for a reviewing court to refuse to enforce the award.
In discussing the courts' limited role in reviewing the merits of arbitration awards, we have stated that “‘courts ... have no business weighing the merits of the grievance [or] considering whether there is equity in a particular claim.’ ”.../When the judiciary does so, “it usurps a function which ... is entrusted to the arbitration tribunal.”
consumer - FTC Do-Not-Call registry - indefinite registration
http://edocket.access.gpo.gov/2008/pdf/E8-15994.pdf
SUMMARY: In this document, the FTC amends its rules under the Telephone Consumer Protection Act (TCPA) to require telemarketers to honor registrations with the National Do-Not-Call Registry indefinitely.
This action is consistent with Congress’s mandate in the Do-Not-Call Improvement Act of 2007, which prohibits the removal of numbers from the Registry unless the consumer cancels the registration or the number has been disconnected and reassigned or is otherwise invalid. The Commission also will continue to coordinate with the FTC on additional ways to improve the Registry’s accuracy.
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47 CFR § 64.1200 Delivery restrictions.
(c) (2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government. Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator.
SUMMARY: In this document, the FTC amends its rules under the Telephone Consumer Protection Act (TCPA) to require telemarketers to honor registrations with the National Do-Not-Call Registry indefinitely.
This action is consistent with Congress’s mandate in the Do-Not-Call Improvement Act of 2007, which prohibits the removal of numbers from the Registry unless the consumer cancels the registration or the number has been disconnected and reassigned or is otherwise invalid. The Commission also will continue to coordinate with the FTC on additional ways to improve the Registry’s accuracy.
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47 CFR § 64.1200 Delivery restrictions.
(c) (2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government. Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator.
Thursday, July 10, 2008
child abuse - expungement - founded report - PFA case
Philadelphia DHS v. DPW - Commonwealth Court - July 10, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1813CD07_7-10-08.pdf
A PFA order in collateral case finding father sexually abused his child provided a sufficient basis for a "founded report" of abuse, 23 P.S. 6303(a), under the Child Protective Services Law.
"Where only one defendant is charged with abuse in a PFA action, only one person defends those charges, an adjudication finds that such abuse occurred and prohibits further contact between the victim child and that defendant, the PFA order is an adjudication containing a sufficient definitive finding upon which DHS based the Founded Report."
These facts were held to distinguish this case from J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the court held that a generalized finding in a dependency case - with no definitive finding that a particular individiual was responsible for the abuse - did not preclude an appeal in a related expungement case.
"A Founded Report may be based upon any judicial adjudication finding that the child who is the subject of the report has been abused, including, but not limited to, criminal charges. The ALJ erred as a matter of law in relying upon J.G. to conclude that the PFA hearing in this case was not, on its own, able to support a Founded Report of abuse. Thus, the DPW did also err in adopting the recommendation of the ALJ and directing that the Founded Report of child abuse against R.G.S. be expunged."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1813CD07_7-10-08.pdf
A PFA order in collateral case finding father sexually abused his child provided a sufficient basis for a "founded report" of abuse, 23 P.S. 6303(a), under the Child Protective Services Law.
"Where only one defendant is charged with abuse in a PFA action, only one person defends those charges, an adjudication finds that such abuse occurred and prohibits further contact between the victim child and that defendant, the PFA order is an adjudication containing a sufficient definitive finding upon which DHS based the Founded Report."
These facts were held to distinguish this case from J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the court held that a generalized finding in a dependency case - with no definitive finding that a particular individiual was responsible for the abuse - did not preclude an appeal in a related expungement case.
"A Founded Report may be based upon any judicial adjudication finding that the child who is the subject of the report has been abused, including, but not limited to, criminal charges. The ALJ erred as a matter of law in relying upon J.G. to conclude that the PFA hearing in this case was not, on its own, able to support a Founded Report of abuse. Thus, the DPW did also err in adopting the recommendation of the ALJ and directing that the Founded Report of child abuse against R.G.S. be expunged."
False Claims Act - charging excess rent in HCV program - OIG alert
http://edocket.access.gpo.gov/2008/pdf/E8-15663.pdf
SUMMARY: This notice provides important information recently issued by HUD’s Office of the Inspector General (OIG) on a recurring problem in the Housing Choice Voucher program. The problem which this notice addresses is landlords submitting false claims for periodic payments under housing assistance payment (HAP) contracts.
Fraud Information Bulletin: Excess Rent
Purpose
This Bulletin highlights a recurring problem in the Housing Choice Voucher (HCV) program. Specifically, this Bulletin discusses the submission by landlords of false claims for periodic payments under Housing Assistance Payment (HAP) contracts, where such landlords have violated their continuing obligations to not charge tenants rents in excess of what is authorized by the HAP contracts.
The Problem
Improperly requiring tenants to pay rent in excess of what is authorized by the applicable HAP contract represents both an actionable offense under the False Claims Act and deplorable behavior directed towards the very persons whom the HCV program was designed to serve. (Additionally, depending on the intent, such an action may qualify as a criminal offense under 18 U.S.C. 287, 1343, etc.) OIG will not tolerate such conduct, and rather will cooperate with efforts to bring offending landlords to justice and to remedy their wrongs.
Background
HUD administers Federal aid to local housing agencies (HAs) that is intended to implement housing assistance programs for low-income residents. With respect to the HCV program, HUD funds HAs via annual contributions contracts. The HAs, in turn, enter into HAP contracts with individual landlords. These HAP contracts provide for periodic housing assistance payments on behalf of eligible lowincome tenants. The HAP contracts also may require eligible tenants to make supplemental rent payments; however, the contracts expressly prohibit landlords from requiring tenants to pay rent in excess of what is authorized by the HAP contracts.
Pursuant to qui tam complaints and citizen complaints filed throughout the nation and subsequent activities, OIG has become aware of a number of landlords who have improperly required tenants to pay rent in excess of what is authorized by the HAP contracts, and thereby submitted or caused to be submitted false claims for HAP contract periodic rent payments.
Example
On July 29, 2005, a Connecticut tenant filed a qui tam complaint, under 31 U.S.C. 3730, against her former landlord. See Coleman v. Hernandez, 490 F. Supp.2d 278 (D. Conn. 2007). The tenant complained that pursuant to a HAP contract the landlord had agreed to accept $1,550 per month for the rental of an apartment in Stamford. Of this $1,550, the tenant was personally responsible for $20, and HUD via the HA paid the complementary $1,530. In spite of the explicit prohibition in the HAP contract, however, the landlord required the tenant to pay an ‘‘additional rent payment’’ of $60 on six separate occasions. In other words, the landlord inappropriately extracted an additional $360 from the helpless tenant. OIG is aware of numerous similar examples of this sort of egregious conduct nationwide.
Penalty
Pursuant to the False Claims Act, 31 U.S.C. 3729 et seq., persons who submit to HUD or a HUD intermediary claims that are false, fictitious or fraudulent are liable for an assessment equal to three times the amount of the claim, plus a penalty of between $5,500 and $11,000 per claim. The United States may take the position that the entire amount of its HAP payment, not merely the amount of the excess payment by the tenant, is the claim that should be trebled where landlords make false certifications concerning excess rent charged.
Additionally, each periodic rent payment constitutes a separate claim; thus, in the Coleman case the court levied a $33,000 (6 × $5,500) penalty against the landlord for her $360 victimization of the tenant.
Pertinent Information
If you have pertinent information regarding this bulletin, please contact: Office of Legal Counsel, Office of the Inspector General, Department of Housing and Urban Development, 451 Seventh St., SW., Room 8260, Washington, DC 20410. Dated: July 1, 2008.
Kenneth M. Donohue, Inspector General.
SUMMARY: This notice provides important information recently issued by HUD’s Office of the Inspector General (OIG) on a recurring problem in the Housing Choice Voucher program. The problem which this notice addresses is landlords submitting false claims for periodic payments under housing assistance payment (HAP) contracts.
Fraud Information Bulletin: Excess Rent
Purpose
This Bulletin highlights a recurring problem in the Housing Choice Voucher (HCV) program. Specifically, this Bulletin discusses the submission by landlords of false claims for periodic payments under Housing Assistance Payment (HAP) contracts, where such landlords have violated their continuing obligations to not charge tenants rents in excess of what is authorized by the HAP contracts.
The Problem
Improperly requiring tenants to pay rent in excess of what is authorized by the applicable HAP contract represents both an actionable offense under the False Claims Act and deplorable behavior directed towards the very persons whom the HCV program was designed to serve. (Additionally, depending on the intent, such an action may qualify as a criminal offense under 18 U.S.C. 287, 1343, etc.) OIG will not tolerate such conduct, and rather will cooperate with efforts to bring offending landlords to justice and to remedy their wrongs.
Background
HUD administers Federal aid to local housing agencies (HAs) that is intended to implement housing assistance programs for low-income residents. With respect to the HCV program, HUD funds HAs via annual contributions contracts. The HAs, in turn, enter into HAP contracts with individual landlords. These HAP contracts provide for periodic housing assistance payments on behalf of eligible lowincome tenants. The HAP contracts also may require eligible tenants to make supplemental rent payments; however, the contracts expressly prohibit landlords from requiring tenants to pay rent in excess of what is authorized by the HAP contracts.
Pursuant to qui tam complaints and citizen complaints filed throughout the nation and subsequent activities, OIG has become aware of a number of landlords who have improperly required tenants to pay rent in excess of what is authorized by the HAP contracts, and thereby submitted or caused to be submitted false claims for HAP contract periodic rent payments.
Example
On July 29, 2005, a Connecticut tenant filed a qui tam complaint, under 31 U.S.C. 3730, against her former landlord. See Coleman v. Hernandez, 490 F. Supp.2d 278 (D. Conn. 2007). The tenant complained that pursuant to a HAP contract the landlord had agreed to accept $1,550 per month for the rental of an apartment in Stamford. Of this $1,550, the tenant was personally responsible for $20, and HUD via the HA paid the complementary $1,530. In spite of the explicit prohibition in the HAP contract, however, the landlord required the tenant to pay an ‘‘additional rent payment’’ of $60 on six separate occasions. In other words, the landlord inappropriately extracted an additional $360 from the helpless tenant. OIG is aware of numerous similar examples of this sort of egregious conduct nationwide.
Penalty
Pursuant to the False Claims Act, 31 U.S.C. 3729 et seq., persons who submit to HUD or a HUD intermediary claims that are false, fictitious or fraudulent are liable for an assessment equal to three times the amount of the claim, plus a penalty of between $5,500 and $11,000 per claim. The United States may take the position that the entire amount of its HAP payment, not merely the amount of the excess payment by the tenant, is the claim that should be trebled where landlords make false certifications concerning excess rent charged.
Additionally, each periodic rent payment constitutes a separate claim; thus, in the Coleman case the court levied a $33,000 (6 × $5,500) penalty against the landlord for her $360 victimization of the tenant.
Pertinent Information
If you have pertinent information regarding this bulletin, please contact: Office of Legal Counsel, Office of the Inspector General, Department of Housing and Urban Development, 451 Seventh St., SW., Room 8260, Washington, DC 20410. Dated: July 1, 2008.
Kenneth M. Donohue, Inspector General.
Thursday, June 26, 2008
UC - willful misconduct - absenteeism - imprisonment
Weems v. UCBR - Commonwealth Court - publication ordered June 26, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1783CD07_6-26-08.pdf
A nine-month absence from work because of incarceration is willful misconduct, despite claimant's alleged eligibility for work release and employer's refusal to participate in the program.
While absenteeism alone does not constitute willful misconduct, "excessive absences and lack of good or adequate cause for the absence" can be. See Medina v. UCBR, 423 A.2d 469 (Pa. Cmwlth. 1980). Although the claimant told the employer that she would be serving a nine-month prison sentence for an assault conviction, her absence due to that incarceration "clearly constitutes excessive absence."
Imprisonment is not good or adequate cause for absence because “an employee who engages in criminal activity punishable by incarceration should realize that his ability to attend work may be jeopardized....It is the inability to attend work, not the criminal conduct, which supports the finding of willful misconduct....Thus, Claimant’s conduct did rise to the level of willful misconduct."
Claimant's alleged eligibility for work release not proven by her testimony
Claimant's testimony that she was eligible for work release was held to be insufficient to prove that she was, in fact, eligible, citing Cruz v. UCBR, 464 A.2d 656 (Pa. Cmwlth. 1983), where the court affirmed a denial of benefits "in part on the lack of any evidence of an order placing the claimant in such a program....Here, aside from Claimant’s testimony that she was eligible for work release, there is no evidence on the record of any court order related to a work release program. Even if such an order does exist, we are not aware of the limitations it might place on Claimant or the responsibilities it might impose on any potential employer."
Employer had a right to refuse to participate in the work release program
The court also rejected claimant's argument that the employer was "obligated to participate in a work release program. Employer cannot be expected to change the conditions of employment in order to accommodate Claimant. In finding the prohibition of unemployment benefits for incarcerated individuals constitutional, we suggested that the General Assembly 'could have felt that while on work release, because of restrictions necessarily imposed under those programs, prisoners were not sufficiently available for work so as to permit them to have a full range of employment options that other claimants have in pursuing new employment'....Employers need not adapt work release restrictions that change the terms of employment. The decision by Employer not to participate in a work release program does not excuse Claimant’s absence from work. Claimant had an obligation to report to work regardless of whether Employer agreed to participate in the work release program."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1783CD07_6-26-08.pdf
A nine-month absence from work because of incarceration is willful misconduct, despite claimant's alleged eligibility for work release and employer's refusal to participate in the program.
While absenteeism alone does not constitute willful misconduct, "excessive absences and lack of good or adequate cause for the absence" can be. See Medina v. UCBR, 423 A.2d 469 (Pa. Cmwlth. 1980). Although the claimant told the employer that she would be serving a nine-month prison sentence for an assault conviction, her absence due to that incarceration "clearly constitutes excessive absence."
Imprisonment is not good or adequate cause for absence because “an employee who engages in criminal activity punishable by incarceration should realize that his ability to attend work may be jeopardized....It is the inability to attend work, not the criminal conduct, which supports the finding of willful misconduct....Thus, Claimant’s conduct did rise to the level of willful misconduct."
Claimant's alleged eligibility for work release not proven by her testimony
Claimant's testimony that she was eligible for work release was held to be insufficient to prove that she was, in fact, eligible, citing Cruz v. UCBR, 464 A.2d 656 (Pa. Cmwlth. 1983), where the court affirmed a denial of benefits "in part on the lack of any evidence of an order placing the claimant in such a program....Here, aside from Claimant’s testimony that she was eligible for work release, there is no evidence on the record of any court order related to a work release program. Even if such an order does exist, we are not aware of the limitations it might place on Claimant or the responsibilities it might impose on any potential employer."
Employer had a right to refuse to participate in the work release program
The court also rejected claimant's argument that the employer was "obligated to participate in a work release program. Employer cannot be expected to change the conditions of employment in order to accommodate Claimant. In finding the prohibition of unemployment benefits for incarcerated individuals constitutional, we suggested that the General Assembly 'could have felt that while on work release, because of restrictions necessarily imposed under those programs, prisoners were not sufficiently available for work so as to permit them to have a full range of employment options that other claimants have in pursuing new employment'....Employers need not adapt work release restrictions that change the terms of employment. The decision by Employer not to participate in a work release program does not excuse Claimant’s absence from work. Claimant had an obligation to report to work regardless of whether Employer agreed to participate in the work release program."
mortgage foreclosure - equitable subrogation - Pennsylvania v. Restatement
1312466 Ontario Inc v. Carr - Superior Court - June 25, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a14025_08.pdf
U.S. Bank, mortgagee in 4th lien position loaned property owner (p/o) money, which p/o used to pay off first and second mortgage lienors. US Bank was unaware of the 3rd lienor (Ontario), due to a negligent error in its title search.
When p/o defaulted on 3d mortgage, Ontario sued and got judgment in mortgage foreclosure.
US Bank then filed petition to intervene, claiming that it was entitled to "equitable subrogation" under Restatement 3d, Property 7.6, which says that "one who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment." Such equitable subrogation is an exception to the "first in time" rule that generally determines the priority of a lien.
The trial and appellate courts rejected US Bank's petition, holding that it was not entitled to equitable subrogation under Pennsylvania law, as that doctrine is defined by Home Owners' Loan Corp. v. Crouse, 30 A.2d 330 (Pa. Super. 1943) and First Commonwealth Bank v. Heller, 863 A.2d 1153 (Pa. Super. 2004) -- which are different from the Restatement definition in important respects.
"Like many other jurisdictions," Pennsylvania requires "four criteria to be met for equitable subrogation to apply....These four requirements are:
(1) the claimant paid the creditor to protect his own interests;
(2) the claimant did not act as a volunteer;
(3) the claimant was not primarily liable for the debt; and
(4) allowing subrogation will not cause injustice to the rights of others."
The appellate court found that there were two "important" differences between Pennsylvania's interpretation of equitable subrogation and that in the Restatement.
a) voluntary agent - Under Pennsylvania cases, a creditor such as U.S. Bank is considered an “entirely voluntary agent with no interest in the property” The Restatement does not adopt the 'volunteer' rule but instead only requires that the subrogee paid the creditor to protect some interest. "Thus, under the Restatement, a mortgagee pays off existing loans in order to protect its own interest in gaining the first priority lien position, and therefore would be entitled to the remedy of equitable subrogation."
b) mistake - Another important difference between Pennsylvania law on equitable subrogation and the Restatement’s approach is also illustrated in the Home Owners’ decision, where the court said that “courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.... [A] creditor’s mistake 'can be attributed only to its own negligence in failing to search or discover what clearly appeared on the public records'....The Restatement, on the other hand, says that 'subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, actual or constructive, is not necessarily relevant'....Instead, what is relevant under the Restatement is 'whether the payor reasonably expected to get security with a priority equal to the mortgage being paid.'....In fact, the Restatement declares that a refinancing mortgagee should be presumed to have this expectation, even if they are aware of a remaining lien, unless there is affirmative proof that the mortgagee intended to subordinate its mortgage to the remaining interest."
Although the court pointed out that existing state doctrine might sometimes lead to undesirable results*** and "may be ripe for legislative review," it determined that it was bound by its own prior decisions "and principles of stare decisis." The court was also influenced by "the fact that it was US Bank's carelessness that brought about the pecuniary loss that it is now facing."
*** The court posited that, given Pennsylvania doctrine, US Bank would not made the loan "leaving [borrower] in all likelihood unable to refinance his existing loan" -- a scenario that it thought "may be a frequent dilemma for homeowners amidst the current mortgage crisis....."
http://www.courts.state.pa.us/OpPosting/Superior/out/a14025_08.pdf
U.S. Bank, mortgagee in 4th lien position loaned property owner (p/o) money, which p/o used to pay off first and second mortgage lienors. US Bank was unaware of the 3rd lienor (Ontario), due to a negligent error in its title search.
When p/o defaulted on 3d mortgage, Ontario sued and got judgment in mortgage foreclosure.
US Bank then filed petition to intervene, claiming that it was entitled to "equitable subrogation" under Restatement 3d, Property 7.6, which says that "one who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment." Such equitable subrogation is an exception to the "first in time" rule that generally determines the priority of a lien.
The trial and appellate courts rejected US Bank's petition, holding that it was not entitled to equitable subrogation under Pennsylvania law, as that doctrine is defined by Home Owners' Loan Corp. v. Crouse, 30 A.2d 330 (Pa. Super. 1943) and First Commonwealth Bank v. Heller, 863 A.2d 1153 (Pa. Super. 2004) -- which are different from the Restatement definition in important respects.
"Like many other jurisdictions," Pennsylvania requires "four criteria to be met for equitable subrogation to apply....These four requirements are:
(1) the claimant paid the creditor to protect his own interests;
(2) the claimant did not act as a volunteer;
(3) the claimant was not primarily liable for the debt; and
(4) allowing subrogation will not cause injustice to the rights of others."
The appellate court found that there were two "important" differences between Pennsylvania's interpretation of equitable subrogation and that in the Restatement.
a) voluntary agent - Under Pennsylvania cases, a creditor such as U.S. Bank is considered an “entirely voluntary agent with no interest in the property” The Restatement does not adopt the 'volunteer' rule but instead only requires that the subrogee paid the creditor to protect some interest. "Thus, under the Restatement, a mortgagee pays off existing loans in order to protect its own interest in gaining the first priority lien position, and therefore would be entitled to the remedy of equitable subrogation."
b) mistake - Another important difference between Pennsylvania law on equitable subrogation and the Restatement’s approach is also illustrated in the Home Owners’ decision, where the court said that “courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.... [A] creditor’s mistake 'can be attributed only to its own negligence in failing to search or discover what clearly appeared on the public records'....The Restatement, on the other hand, says that 'subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, actual or constructive, is not necessarily relevant'....Instead, what is relevant under the Restatement is 'whether the payor reasonably expected to get security with a priority equal to the mortgage being paid.'....In fact, the Restatement declares that a refinancing mortgagee should be presumed to have this expectation, even if they are aware of a remaining lien, unless there is affirmative proof that the mortgagee intended to subordinate its mortgage to the remaining interest."
Although the court pointed out that existing state doctrine might sometimes lead to undesirable results*** and "may be ripe for legislative review," it determined that it was bound by its own prior decisions "and principles of stare decisis." The court was also influenced by "the fact that it was US Bank's carelessness that brought about the pecuniary loss that it is now facing."
*** The court posited that, given Pennsylvania doctrine, US Bank would not made the loan "leaving [borrower] in all likelihood unable to refinance his existing loan" -- a scenario that it thought "may be a frequent dilemma for homeowners amidst the current mortgage crisis....."
UC- vol. quit - salary cap
Pearson v. UCBR - Commonwealth Court - June 26, 2008 - UNPUBLISHED
http://www.courts.state.pa.us/OpPosting/CWealth/out/2277CD07_6-26-08.pdf
Claimant was not eligible for benefits where she quit her job after the employer told her that "there would be no possibility of either promotion or increase in pay." Such a statement might "dampen her enthusiasm for continued employment; however, dampened enthusiasm is not a necessitous and compelling reason to quit."
"Claimant’s displeasure with being 'salary capped' was mere dissatisfaction with her working conditions....[M]ere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006); McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982)."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2277CD07_6-26-08.pdf
Claimant was not eligible for benefits where she quit her job after the employer told her that "there would be no possibility of either promotion or increase in pay." Such a statement might "dampen her enthusiasm for continued employment; however, dampened enthusiasm is not a necessitous and compelling reason to quit."
"Claimant’s displeasure with being 'salary capped' was mere dissatisfaction with her working conditions....[M]ere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006); McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982)."
Wednesday, June 25, 2008
standing - assignees for collection of debt
Sprint Communications v. APCC Services - June 23, 2008
http://www.supremecourtus.gov/opinions/07pdf/07-552.pdf
Here is the first paragraph of the majority decision in the Court's 5-4 decision.
The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing.
Excepts from the Court's own summary of the case appear below.
++++++++++++++++++++++++++++++++
A payphone customer making a long-distance call with an access code or 1–800 number issued by a long-distance carrier pays the carrier (which completes the call).
The carrier then compensates the pay-phone operator (which connects the call to the carrier in the firstplace).
The payphone operator can sue the long-distance carrier for any compensation that the carrier fails to pay for these "dial-around"calls.
Many payphone operators assign their dial-around claims to billing and collection firms (aggregators) so that, in effect, these aggregators can bring suit on their behalf. A group of aggregators (respondents here) were assigned legal title to the claims of approximately 1,400 payphone operators. The aggregators separately agreed to remit all proceeds to those operators, who would then pay the aggregators for their services.
After entering into these agreements, the aggregators filed federal-court lawsuits seeking compensation from petitioner long-distance carriers. The District Court refused to dismiss the claims, finding that the aggregators had standing, and the D.C. Circuit ultimately affirmed.
Held: An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.
(a) History and precedent show that, for centuries, courts have found ways to allow assignees to bring suit; where assignment is at issue, courts—both before and after the founding—have always permitted the party with legal title alone to bring suit; and there is a strong tradition specifically of suits by assignees for collection. Supreme Court precedent offers "powerful support for the proposition that suits by assignees for collection have long been seen as "amenable" to resolution by the judicial process.
(b) No convincing reason is offered to depart from the historical tradition of suits by assignees, including assignees for collection. In any event, the aggregators satisfy the Article III standing requirements articulated in the Court’s more modern decisions.
Petitioners argue that the aggregators have not themselves suffered an injury and that assignments for collection do not transfer the pay-phone operators’ injuries. But the operators assigned their claims lock, stock, and barrel, and precedent makes clear that an assignee can sue based on his assignor’s injuries.
Petitioners’ claim that the assignments constitute nothing more than acontract for legal services is overstated. There is an important distinction between simply hiring a lawyer and assigning a claim to alawyer. The latter confers a property right (which creditors might attach); the former does not.
Dissent - Robert, CJ
"The majority concludes that a private litigant may sue in federal court despite having to "pass back . . . all proceeds of the litigation"...thus depriving that party of any stake in the outcome of the litigation. The majority reaches this conclusion, in flat contravention of our cases interpreting the case-orcontroversy requirement of Article III, by reference to a historical tradition that is, at best, equivocal. That history does not contradict what common sense should tell us: There is a legal difference between something and nothing. Respondents have nothing to gain from their lawsuit.Under settled principles of standing, that fact requires dismissal of their complaint.assignees
http://www.supremecourtus.gov/opinions/07pdf/07-552.pdf
Here is the first paragraph of the majority decision in the Court's 5-4 decision.
The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing.
Excepts from the Court's own summary of the case appear below.
++++++++++++++++++++++++++++++++
A payphone customer making a long-distance call with an access code or 1–800 number issued by a long-distance carrier pays the carrier (which completes the call).
The carrier then compensates the pay-phone operator (which connects the call to the carrier in the firstplace).
The payphone operator can sue the long-distance carrier for any compensation that the carrier fails to pay for these "dial-around"calls.
Many payphone operators assign their dial-around claims to billing and collection firms (aggregators) so that, in effect, these aggregators can bring suit on their behalf. A group of aggregators (respondents here) were assigned legal title to the claims of approximately 1,400 payphone operators. The aggregators separately agreed to remit all proceeds to those operators, who would then pay the aggregators for their services.
After entering into these agreements, the aggregators filed federal-court lawsuits seeking compensation from petitioner long-distance carriers. The District Court refused to dismiss the claims, finding that the aggregators had standing, and the D.C. Circuit ultimately affirmed.
Held: An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.
(a) History and precedent show that, for centuries, courts have found ways to allow assignees to bring suit; where assignment is at issue, courts—both before and after the founding—have always permitted the party with legal title alone to bring suit; and there is a strong tradition specifically of suits by assignees for collection. Supreme Court precedent offers "powerful support for the proposition that suits by assignees for collection have long been seen as "amenable" to resolution by the judicial process.
(b) No convincing reason is offered to depart from the historical tradition of suits by assignees, including assignees for collection. In any event, the aggregators satisfy the Article III standing requirements articulated in the Court’s more modern decisions.
Petitioners argue that the aggregators have not themselves suffered an injury and that assignments for collection do not transfer the pay-phone operators’ injuries. But the operators assigned their claims lock, stock, and barrel, and precedent makes clear that an assignee can sue based on his assignor’s injuries.
Petitioners’ claim that the assignments constitute nothing more than acontract for legal services is overstated. There is an important distinction between simply hiring a lawyer and assigning a claim to alawyer. The latter confers a property right (which creditors might attach); the former does not.
Dissent - Robert, CJ
"The majority concludes that a private litigant may sue in federal court despite having to "pass back . . . all proceeds of the litigation"...thus depriving that party of any stake in the outcome of the litigation. The majority reaches this conclusion, in flat contravention of our cases interpreting the case-orcontroversy requirement of Article III, by reference to a historical tradition that is, at best, equivocal. That history does not contradict what common sense should tell us: There is a legal difference between something and nothing. Respondents have nothing to gain from their lawsuit.Under settled principles of standing, that fact requires dismissal of their complaint.assignees
zoning - appeal - standing
SCRUB - Philadelphia Zoning Hearing Board - Commonwealth Court - June 25, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1609CD07_6-25-08.pdf
Citizen group held not to have standing to challenge decision of zoning board granting variance to erect commercial sign.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1609CD07_6-25-08.pdf
Citizen group held not to have standing to challenge decision of zoning board granting variance to erect commercial sign.
Tuesday, June 24, 2008
bankruptcy - ch. 13 - lien avoidance - adversary proceeding required
In re Mansaray-Ruffin - 3d Circuit - June 24, 2008
http://www.ca3.uscourts.gov/opinarch/054790p.pdf
"This appeal requires us to determine whether the debtor in a Chapter 13 bankruptcy case successfully invalidated a lien on her property by providing for it as an unsecured claim in her confirmed plan, without initiating an adversary proceeding as required by the Federal Rules of Bankruptcy Procedure. We agree with the lienholder, as well as with the Bankruptcy Court and the District Court, that the answer to this question is no. Accordingly, we will AFFIRM."
This was a 2-1 decision. David Scholl represented the debtor.
http://www.ca3.uscourts.gov/opinarch/054790p.pdf
"This appeal requires us to determine whether the debtor in a Chapter 13 bankruptcy case successfully invalidated a lien on her property by providing for it as an unsecured claim in her confirmed plan, without initiating an adversary proceeding as required by the Federal Rules of Bankruptcy Procedure. We agree with the lienholder, as well as with the Bankruptcy Court and the District Court, that the answer to this question is no. Accordingly, we will AFFIRM."
This was a 2-1 decision. David Scholl represented the debtor.
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