Author name: jsinger

No mandatory duty to record titles or mortgages so no evasion of law by MERS

/ Mortgages, Real Estate Transactions, Statute of Frauds, Title Issues

Several lawsuits have been in progress arguing that MERS violated state recording statutes by not recording mortgage assignments and thus cheating recording offices out of fees they otherwise would have earned. Interpreting Illinois law, the Seventh Circuit rejected that claim as have other courts that addressed the issue. Union County v. MERSCORP, Inc., 2013 WL 6017394 (7th Cir. 2013) (applying Ill. law). The court explained that Illinois law agrees with almost all other states in providing a voluntary recording system that is intended to protect those who record; that system does not require property transactions to be recorded for them to be valid. It merely protects bona fide purchasers from prior claims against which they had no notice

Settlement of Mount Holly case prevents Supreme Court from addressing disparate impact claims under the Fair Housing Act

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act

The Supreme Court has twice in recent years accepted certiorari in cases to decide whether disparate impact claims are available under the Fair Housing Act. Both cases settled before the Supreme Court could determine the issue. The most recent was Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375 (3d Cir. 2011). The prior case was Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010). Another lawsuit is in process called Am. Ins. Ass’n v. U.S. Dep’t of Hous. & Urban Dev. (D.D.C., filed 06.26.13),  brought by the insurance industry to challenge the disparate impact regulations promulgated this year by the Department of Housing and Urban Development (HUD). read article Those regulations define when disparate impact claims are available and are consistent with the general outlines of the doctrine as it been developed by all the Circuit courts.  24 C.F.R. § 100.500(a)–(b).

Google library book project held to be a fair use under copyright law

/ Copyright, Intellectual Property

A federal district court has upheld Google’s library book project as an authorized fair use under the federal Copyright Act, 17 U.S.C. §101 et esq., Authors Guild, Inc. v. Google, Inc., 2013 WL 6017130 (S.D.N.Y. 2013). The court upheld the power of Google to scan copyrighted books held by libraries and to give those libraries digital copies of those scans. It also upheld Google’s power to make the text of those books searchable so that researchers could view snippets of those books and could search the books for particular phrases, words or concepts. The court ruled both practices to constitute a fair use, 17 U.S.C. §107. In determining that the ability to search the digital copies and to view snippets was a fair use, the court found that the use was transformative, did not supplant or supersede the originals, and was not designed to make a profit.

Hawai`i, Illinois & New Jersey join the states that allow and recognize same-sex marriage

/ Antidiscrimination Law, Marital Property, Sexual Orientation

After passage of same-sex marriage laws in both HawaiiandIll∈oisandconstitutionallitigation∈NewJersey,seventeen(17)jurisdictions∈theUSrecognizeandallowsame−sexmarria≥.Thelist∈cludes:California,Co∩ecticut,Delaware,DistrictofColumbia,Hawai�and���∈���and������������������������∈���������,���������(17)�������������∈�ℎ������������and���������-���������≥.�ℎ�����∈������:���ifor���,��∩�������,��������,������������������,�����i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington.

Testers have standing to sue for violations of the public accommodation provisions of the Americans with Disabilities Act

/ Antidiscrimination Law, Consumer Protection

In Houston v. Marod Supermarkets, 2013 WL 5859575 (11th Cir. 2013), the Eleventh Circuit ruled that testers have standing to bring suits claiming violation of the public accommodation provisions of the Americans with Disabilities Act. The mere fact that one enters property for the purpose of testing compliance with the ADA rather than to purchase products does not deprive the plaintiff of standing to sue for violation of the law. In an odd coda, however, the court noted that injunctive relief was only appropriate if the plaintiff could show injury from the store’s failure to comply with access requirements. The fact that he claimed he would return to the store in the future and that it was located 30 miles from his house was sufficient to show “injury in fact” and give him standing to seek injunctive relief.

Illinois is likely to become the 15th state to allow same-sex marriage

/ Antidiscrimination Law, Marital Property, Sexual Orientation

The Illinois House has passed a marriage equality bill that is virtually certain to become law in some form in the near future given the support in the Senate and by the Governor. Once that happens, 15 states will have same-sex marriage along with the District of Columbia. The outcome is more uncertain in Hawai`i but the legislature may vote in favor of a same-sex marriage bill in the next days.

First Circuit holds there is no federal remedy for discriminatory treatment by store personnel

/ Antidiscrimination Law, Personal Property

Once again a federal court has held that the Civil Rights Act of 1866 (as amended in 1991) provides no relief to a store customer who was subjected to racial insults while trying to buy merchandise. The First Circuit held, in Hammond v. Kmart Corp., 2013 WL 5763267 (1st Cir. 2013), that the “right to contract” protected by 42 U.S.C. §1981 only protects the ability to enter a contract; it provides no relief for racially disparate treatment when one is in a store. Because the customer was able to complete the transaction (laying away merchandise), the store did not prevent her from “contracting.” Being subjected to “racial slurs and insults” as she was engaged in the transaction did not deter her from completing the transaction. The ruling oddly protects those who are deterred from completing the sale but not those who insist on going through with it despite the discriminatory treatment. It …

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Rent escrow law held constitutional

/ Consumer Protection, Due Process, Leaseholds

The Ninth Circuit has upheld a city administrative program that regulated landlords whose buildings violated the housing code by allowing tenants to pay a reduced rent into a publicly administered escrow fund which is paid to the landlord once the violations are corrected.    Sylvia Landfield Trust v. City of Los Angeles, 2013 WL 4779664 (9th Cir. 2013). Four landlords challenged the program as a violation of their substantive rights under the due process clause. The court upheld the program because it was rationally related to the legitimate government goal of enforcing the housing code to protect tenants from unsafe conditions.The landlords had claimed that the tenants caused the problems, that their properties were not sufficiently substandard to warrant application of the law, and that the program was intended to enrich the government. The court rejected all these claims, noting that the law allowed landlords to prove that tenants were responsible …

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Same-sex marriage prevails in New Jersey

/ Antidiscrimination Law, Marital Property, Sexual Orientation

Given the clear statement by the Supreme Court of New Jersey on how it was likely to rule in the pending marriage equality case, (see Garden State Equality v. Dow (N.J. 2013). Governor Chris Christie decided to drop the appeal. read article. That leaves the lower court ruling (read opinion here) in place with its conclusion that civil unions are not equal to marriages now that the federal government provides same-sex married couples the same federal rights as male-female married couples but does not confer such rights on partners to a civil union. The New Jersey Supreme Court’s prior ruling in Lewis v. Harris, 908 A.2d 196 (N.J. 2005), had found it to be a violation of the state constitution not to grant same-sex couples the same rights as married couples but left it to the legislature whether to call the resulting unions “marriages” or “civil unions” or something else. While New Jersey conferred equal rights …

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