Author name: jsinger

First Circuit supports MERS

/ Mortgages, Real Estate Transactions

The First Circuit reaffirmed its view of the validity of the MERS system under Massachusetts law. Mills v. U.S. Bank, (1st Cir. 2014) (reaffirming Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282 (1st Cir.2013)). The court explained that there was no conflict between MERS’s role as the “mortgagee” and MERS’s role as the nominee (agent) for the mortgagee (the actual Lender to whom promises were made under the note). Thus the note could be transferred from bank to bank while MERS held “legal title” to the mortgage, giving MERS the power to transfer legal title to the final note holder to allow it to foreclose on the property after default by the mortgagor. According to the court the “MERS framework…separates the legal interest [in the mortgage] from the beneficial interest [in the underlying debt]” and is valid. This separation is valid under Massachusetts law which allows the note to be …

First Circuit supports MERS Read More »

Oregon and Pennsylvania join the states with same-sex marriage

/ Antidiscrimination Law, Marital Property, Sexual Orientation

For the first time, federal court rulings seem to have brought same-sex marriage the states. Most of the states that have recognized such marriages have done so through state court rulings or legislation. However, federal court rulings have increasingly found same-sex marriage bans to violate the equal protection clause of the federal constitution. Most such rulings of federal district courts are on appeal and most were stayed during that appeal. However, the governors of both Oregon and Pennsylvania declined to appeal the rulings and no other parties appear to have been given standing to do so. Geiger v. Kitzhaber, 2014 U.S. Dist. LEXIS 68171 (D. Ore. 2014); Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. 2014); That seems to place those states in the same-sex marriage column bringing the total number of jurisdictions with same-sex marriage to twenty (19 states plus the District of Columbia). The list includes California, Connecticut, Delaware, District …

Oregon and Pennsylvania join the states with same-sex marriage Read More »

Easement can be narrowed by servient estate owner

/ Easements, Servitudes, Statute of Frauds, Title Issues

The Massachusetts Supreme Judicial Court ruled in Martin v. Simmons Props., Inc., 2014 WL 128537 (Mass. 2014), that the servient estate owner is entitled to narrow an easement as long as this does not interfere with the uses for which the easement was initially created. The court applied the traditional rule that easements are encumbrances on land and to be construed narrowly. At the same time, the touchstone was the intention of the parties that created the easement, determined both by the language in the easement and the circumstances at the time of creation of the easement. Because the documents and plan creating the easement did not specify an exact width of the easement or require that it be kept open through its full extent, the easement owner was entitled only to such use as was needed to afford access to the dominant estate. The court also reaffirmed the traditional rule that …

Easement can be narrowed by servient estate owner Read More »

Owners who lost title to their homes through nonjudicial foreclosure are entitled to raise defenses to eviction

/ Consumer Protection, Mortgages, Real Estate Transactions, Title Issues

The Supreme Judicial Court of the Commonwealth of Massachusetts has ruled that owners may make affirmative defenses to eviction claims by banks that acquired title to their property through a private or nonjudicial foreclosure. Bank of America v. Rosa, 466 Mass. 613 (2013). Those defenses may challenge the way in which the bank acquired title to the property through the foreclosure process and and power of the bank to foreclose in the first place. They may also include any equitable defenses that would defeat the claim for a right to possession of the property (the right to evict).

Same-sex marriage in New Mexico

/ Antidiscrimination Law, Marital Property, Sexual Orientation

The Supreme Court of New Mexico opened the state to same-sex marriages in the case of Griego v. Oliver,  2013 WL 6670704 (N.M. 2013). It interpreted New Mexico statutes as denying the right of same-sex couples to marry and then held those statutes unconstitutional under the equal protection clause in Article 18 of Section II of the New Mexico Constitution. The court unanimously held that the statutes created a classification based on sexual orientation and that such statutes should be subject to intermediate scrutiny because the class of gay and lesbian persons has a history of being subject to discrimination and “deep-rooted prejudice against their integration into society.” Applying that standard of review, the court found the classification unconstitutional. The state justified denying same-sex couples the right to marry on the ground that male-female marriages promoted “responsible procreation and child-rearing.” Although this is a legitimate government interest, the court found no relation …

Same-sex marriage in New Mexico Read More »

Same-sex marriage gets a foothold in Utah and Ohio

/ Antidiscrimination Law, Marital Property, Sexual Orientation

A federal district court judge in Utah struck down the state’s marriage laws to the extent they disallowed same-sex couples to marry. Kitchen v. Herbert, (D. Utah 2013). Holding the right to marry to be a fundamental constitutional right and denial of that right to same-sex couples a violation of the equal protection clause in the U.S. Constitution, the judge refused to stay his opinion. As a result hundreds of couples began applying for and receiving marriage licenses. The decision is being appealed by the state of Utah and may be overturned by the Tenth Circuit. In a related ruling, a federal district court judge in Ohio ruled it unconstitutional for Ohio to deny marriage status to same-sex couples married out of state when one dies in-state. Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio 2013).  the judge ordered that the death certificates record the fact that the decedent was married. read article

Court finds sriracha hot sauce plant to be a nuisance

/ Nuisance

The city of Irwindale in the Los Angeles area brought suit to shut down a plant that manufacturers hot sauce made from sriracha chilis.  Neighbors complained that the hot sauce manufacturer  caused them great discomfort from the odors of the plant, that they suffered from headaches, and that the plant made their eyes water and their throats burn. read article  On the other hand some residents suffered no ill effects while others found the effects fleeting and inconsistent. The state superior court judge must have believed the complaints because he issued an injunction ordering the plant to cease the operations that were causing the offensive odors. read article The court did not order the plant closed, just to act to mitigate the problems it was causing.

Housing discrimination by town officials still a problem

/ Antidiscrimination Law, Consumer Protection, Due Process, Fair Housing Act, Leaseholds, Real Estate Transactions

A number of recent cases has revealed the persistence of racial discrimination affecting municipal decisions about housing. The Sixth Circuit found, for example, in Hidden Village, LLC v. City of Lakewood, Ohio, 734 F.3d 519 (6th Cir. 2013), that town officials may have engaged in a campaign of harassment designed to induce African American residents to move out of town. The case involved a Lutheran religious organization that helped young people released from foster care or juvenile detention to enter society. The organization found a helpful landlord willing to rent apartments to the organization’s clients. At first the town officials argued that this amounted to an institutional use in violation of the zoning law but the town planning commission found otherwise. At that point, the complaint alleges that town officials began a campaign of police harassment that involved citations for minor offenses and unreasonable searches of apartments. The Sixth Circuit concluded that …

Housing discrimination by town officials still a problem Read More »

Municipal attempt to induce residents to move because of race violates Fair Housing Act even if they do not move

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act

The Sixth Circuit has held that §3617 of the Fair Housing Act, 42 U.S.C. §3601 et seq., prohibits conduct intended to encourage residents to move even if they are not denied housing or induced to move. Hidden Village, LLC v. City of Lakewood, 2013 WL 5811642 (6th Cir. 2013). The basic provisions of the FHA (embodied in §3604) prohibit denying housing for discriminatory reasons, providing unequal and discriminatory terms and conditions for housing, and expressing an invidious preference for buyers or renters of a particular race, sex, etc. Section 3617 prohibits coercion, intimidation, threats, or any interference with any person’s right to exercise the fair housing rights protected by 3604. Federal courts have been confused and divided over whether §3617 provides a remedy when there is no underlying §3604 violation. In Hidden Village, municipal officials were unhappy with a religious youth service that helps young people released from foster care or juvenile detention enter …

Municipal attempt to induce residents to move because of race violates Fair Housing Act even if they do not move Read More »

Scroll to Top