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    Property Law Legal Research Blog

    Steven G. Friedman

    Recent Posts

    LANDLORD TENANT: Can a Tenant Use the Exclusionary Rule When Fighting an Eviction?

    Posted by Steven G. Friedman on Tue, Jul 17, 2018 @ 09:07 AM

    Steven G. FriedmanCSenior Attorney, National Legal Research Group

     

    The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures of their persons or property. See U.S. Const., amend. IV. The exclusionary rule prohibits the use of evidence obtained in violation of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338, 347 (1974). However, the exclusionary rule does not apply to all proceedings or against all persons and is generally restricted to areas in which the goal of deterring unlawful police conduct is "most efficaciously served." Id. at 348. In determining whether the exclusionary rule applies, the U.S. Supreme Court has developed a balancing test whereby courts weigh the likely social benefits of excluding unlawfully obtained evidence against the possible costs. See INS v. Lopez‑Mendoza, 468 U.S. 1032, 1041 (1984).

     

    Typically, the exclusionary rule has been confined to cases in which the state seeks to use illegally seized evidence to criminally prosecute an individual who experienced an unlawful search. See Calandra, 414 U.S. at 347; e.g., id. at 354. The exclusionary rule is occasionally applied outside of a pure criminal proceeding, however. For instance, the Minnesota Supreme Court has held that the exclusionary rule applies to a civil forfeiture action, see Garcia‑Mendoza v. 2003 Chevy Tahoe, 852 N.W.2d 659, 667 (Minn. 2014), as well as a civil implied‑consent proceeding, see Ascher v. Comm'r of Pub. Safety, 527 N.W.2d 122, 125 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995); see also State v. Lemmer, 736 N.W.2d 650, 654 (Minn. 2007) (revocation of a driver's license after a DWI arrest).

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    Topics: exclusionary rule, eviction, property, civil forfeiture

    Expansion of Easements by Necessity in Virginia

    Posted by Steven G. Friedman on Mon, Dec 18, 2017 @ 10:12 AM

    Steve Friedman, Senior Attorney, National Legal Research Group

                "An easement is the privilege to use the land of another in a particular manner and for a particular purpose, but it does not give the owner of the dominant estate an ownership interest in the servient tract." Beach v. Turim, 287 Va. 223, 228, 754 S.E.2d 295, 297 (2014) (internal quotation marks omitted). "Easements may be created by express grant or reservation, by implication, by estoppel or by prescription." Id.

                Each type of easement is established (and sometimes governed) by a different set of rules. See Palmer v. R.A. Yancey Lumber Corp., 294 Va. 140, 803 S.E.2d 742, 749 (2017) (noting that "express easements and easements by prescription . . . have their own set of rules separate and apart from the rules governing easements by necessity").

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    Topics: property, easements by necessity, expansion of easement

    MORTGAGES: A 2009 Amendment to the Truth in Lending Act, 15 U.S.C. § 1641(g), Is Not Retroactive

    Posted by Steven G. Friedman on Wed, Feb 24, 2016 @ 10:02 AM

    The Lawletter Vol. 41, No. 2

    Steve Friedman, Senior Attorney, National Legal Research Group

         The federal Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601–1667f, was enacted to, among other things, "protect the consumer against inaccurate and unfair credit billing and credit card practices." Id. § 1601(a). Prior to 2009, TILA required that borrowers be informed if the servicer of their mortgage loan changed, but there was no such notice requirement if the owner of their mortgage loan changed. To impose the latter requirement, Congress enacted Public Law No. 111-22, 123 Stat. 1632 (2009).

         Specifically, the following new text was added to TILA: "[N]ot later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer[.]" 15 U.S.C. § 1641(g)(1). Notably, if the new creditor does not comply, the borrower may bring suit to recover actual damages, a statutory penalty of up to $4,000 for individual claims ($1 million for a class action), plus costs and attorney's fees. See id. § 1640(a).

         In a recent case out of the U.S. Court of Appeals for the Ninth Circuit, the appellate court was presented with an issue of first impression: Is the new requirement in § 1641(g) retroactive? See Talaie v. Wells Fargo Bank, 808 F.3d 410 (9th Cir. 2015).

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    Topics: Truth in Lending Act, mortgages, Steven G. Friedman, retroactive application

    MORTGAGES: Notice of the Truth Shall Set You Free: Timely Assertion of the Right of Rescission Under the Truth in Lending Act

    Posted by Steven G. Friedman on Thu, Mar 19, 2015 @ 10:03 AM

    The Lawletter Vol 40 No 1

    Steve Friedman, Senior Attorney, National Legal Research Group

         The federal Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601–1677, was enacted to ensure "a meaningful disclosure of credit terms" to give consumers the opportunity to make informed credit decisions. Id. § 1601(a). In relevant part, TILA grants consumers a right to rescission, no questions asked, under certain circumstances. See id. § 1635(a); 12 C.F.R. § 226.15(a)(3). Once a consumer validly exercises the right to rescind, the entire transaction is voided without any liability or encumbrances. See 15 U.S.C. § 1635(b); 12 C.F.R. § 226.15(d)(1).

         To effectively rescind, however, consumers must timely do so. Specifically, consumers must notify the lender prior to the later of "midnight of the third business day following the consummation of the transaction or the delivery of the [requisite disclosures under the Act]." 15 U.S.C. § 1635(a). Although the second alternative seems open-ended, the Act further states that in no event shall the right of rescission extend beyond "three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first." Id. § 1635(f). But what exactly must be exercised no later than three years after the transactionCthe notice of intent to rescind, or the lawsuit seeking rescission? Abrogating the law of the Eighth Circuit Court of Appeals and applying the plain language of TILA, the U.S. Supreme Court held that it was the former. See Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015), rev'g 729 F.3d 1092 (8th Cir. 2013).

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    Topics: Truth in Lending Act, mortgages, right of rescission

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