January 8, 2012

Steve Friedman, Senior Attorney, National Legal Research Group

The Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601B2617, is a federal consumer protection statute that regulates, among other things, the servicing of mortgage loans.  Among the several duties RESPA imposes is that loan servicers must respond promptly to any "qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan."  12 U.S.C. § 2605(e)(1)(A).  If the servicer fails to adequately respond to such a request, then the borrower may recover actual damages, statutory damages if there is "a pattern or practice of noncompliance," id. § 2605(f), and the costs of suit, including reasonable attorney's fees.

The threshold inquiry for this statutory scheme is the "qualified written request."

For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, thatC

(i)            includes, or otherwise enables the servicer to identify, the name and account of the borrower; and

(ii)            includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.

Id. § 2605(e)(1)(B).

With regard to the statutory definition of a "qualified written request," two federal courts of appeals have recently stated as follows:

RESPA does not require any magic language before a servicer must construe a written communication from a borrower as a qualified written request and respond accordingly.  The language of the provision is broad and clear.  To be a qualified written request, a written correspondence must reasonably identify the borrower and account and must "include a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower."  12 U.S.C. § 2605(e)(1)(B) (emphasis added).  Any reasonably stated written request for account information can be a qualified written request.  To the extent that a borrower is able to provide reasons for a belief that the account is in error, the borrower should provide them, but any request for information made with sufficient detail is enough under RESPA to be a qualified written request and thus to trigger the servicer's obligations to respond.

Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 687 (7th Cir. 2011); Medrano v. Flagstar Bank FSB, No. 11-55412, 2012 WL 6183549, at *3 (9th Cir. filed Dec. 11, 2012) (quoting Catalan, 629 F.3d at 687).

Furthermore, the Ninth Circuit opinion went a step further than the Seventh Circuit one had and explicitly articulated a three-part test:

The Lawletter Vol 37 No 10

Paul Ferrer, Senior Attorney, National Legal Research Group

Parties who secure a favorable judgment in federal court may be happy with the outcome but should not forgo seeking their recoverable costs as well.  The Federal Rules of Civil Procedure specifically provide that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party."  Fed. R. Civ. P. 54(d)(1).  The threshold question for any court prior to awarding costs under Rule 54(d) involves a determination of who the "prevailing party" is in the lawsuit.  In general, a party prevails for purposes of Rule 54(d) when a final judgment awards it "substantial relief."  Smart v. Local 702 Int'l Bhd. of Elec. Workers, 573 F.3d 523, 525 (7th Cir. 2009).  A party that gets substantial relief prevails "even if it doesn't win on every claim."  Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir.), cert. denied, 527 U.S. 1005 (1999).

In Sommerfield v. City of Chicago, No. 06 C 3132, 2012 WL 5381255, at *2 (N.D. Ill. Oct. 31, 2012), for example, the plaintiff was determined to be the prevailing party because the jury had returned a verdict in his favor on two counts, awarding him $30,000, even though the jury had found against him on a third count and two other counts had been dismissed at the summary judgment stage.  Sommerfield also exemplifies the concept that "a determination of who is the prevailing party for purposes of awarding costs should not depend on the position of the parties at each stage of the litigation but should be made when the controversy is finally decided."  Repub. Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 446 (7th Cir. 2007) (quoting 10 Charles A. Wright et al., Federal Practice and Procedure § 2667 (3d ed. 2006)); see also Smart, 573 F.3d at 525 (a "final judgment" awarding substantial relief is "one that resolves all claims against all parties").  In Republic Tobacco, the court held that a party that had succeeded on a posttrial motion in having damages awarded against it reduced from $18.6 million to $7.44 million was not a prevailing party that could recover its costs in the district court under Rule 54(d).  481 F.3d at 446-47.

The Lawletter Vol 37 No 10

Sandra Thomas, Senior Attorney, National Legal Research Group

Confirming the rule that Massachusetts does not recognize common-law marriage, the Appeals Court of Massachusetts, in Bedard v. Corliss, 973 N.E.2d 691, 693 (Mass. App. Ct. 2012), has refused to find a common-law marriage in a case in which the parties themselves believed they were married and had lived together for 21 years.

In 1983, Ethan Corliss and Carol Bedard took part in a marriage ceremony in Tijuana, Mexico, that was conducted by a man holding himself out as an attorney.  His secretary acted as a witness.  Ethan and Carol signed papers that were written in Spanish, which they did not understand.  A few weeks later, a certificate of marriage written in English was mailed to them at their home in Massachusetts.   During the 21 years that followed, the parties filed joint tax returns, bought property as husband and wife, held themselves out as husband and wife, and listed each other as spouses on employment and other documents.

Following Carol's death in 2004, Ethan was appointed as administrator of Carol's estate, listing himself as Carol's spouse.  Carol's three adult children from a prior marriage had each given signed assent to his appointment.

One of the children subsequently changed her mind and challenged the validity of Ethan and Carol's marriage.  Following an investigation, the parties stipulated that the marriage had not been a valid marriage under the law of Mexico.  The marriage therefore could not be recognized by Massachusetts as a valid foreign marriage, and because Massachusetts does not recognize common-law marriage, the trial court concluded that there was no valid marriage.  The court entered judgment revoking the decree appointing Ethan as administrator.  Ethan appealed from this order.

In the meantime, Ethan had voluntarily distributed to Carol's children $120,000 that had been in a joint account that had become Ethan's property on Carol's death.  Ethan had given the funds to Carol's children, although he was not legally obligated to do so, because it was his understanding that that was what Carol had wanted.

Ethan subsequently filed a complaint in equity to recover those funds.  The trial court concluded that Ethan's gift had been based on the mistaken beliefs that Carol's children considered him to be Carol's husband and that they would follow through with their mother's wishes.  The court held that these mistakes resulted in unjust enrichment, and it ordered the children to return those funds to Ethan.  The children appealed from this order.

The appellate court reversed the judgment removing Ethan as administrator.  Citing the decision in Poor v. Poor, 409 N.E.2d 758 (Mass. 1980), which held that an individual who has obtained the benefits of marriage is estopped from later denying that marriage, the court concluded that Carol would have been estopped from denying the existence of the marriage under the circumstances and, therefore, her children were estopped as well.  The court reasoned that the intestacy statute was designed in part to protect the spouse of a person who has not written a will and concluded that "[t]he statute thus provides the kind of benefit of marriage that Carol herself would have been estopped from attempting to deny to Ethan through a challenge to the validity of their marriage."  Bedard, 973 N.E.2d at 695.

The Lawletter Vol 37 No 10

John Stone, Senior Attorney, National Legal Research Group

A drug enforcement officer got a tip that a particular van owned by a glass company might be used to transport illegal drugs from one Arizona town to another.  When the van was found parked in a public parking lot, the officer, without a warrant, placed a global positioning ("GPS") device on it so that the police could monitor the van's movements.  The van did not move for several days, but then the GPS device showed that it had been driven to the second town, where physical surveillance confirmed the move and found the van. There the driver of the van, who was an employee of the van's owner, was stopped for speeding and having excessive window tint, at which time he was also arrested on an outstanding warrant.  The arresting officer who made the stop also was aware of the GPS device and that the van was suspected of carrying marijuana.  A search of the van uncovered bundles of the drug, and the driver was charged with, and ultimately convicted of, drug offenses.

In appealing his conviction on the drug charges, the Defendant Estrella unsuccessfully argued that the placement and use of the GPS device on the vehicle he had been using constituted an unreasonable search under the Fourth Amendment.  State v. Estrella, 286 P.3d 150 (Ariz. Ct. App. 2012).  One contention—that the use of the GPS device had been a search under the trespass theory advanced in United States v. Jones, 132 S. Ct. 945 (2012)—was waived because it had not been raised in the trial court.  The Jones Court had said that a trespass or an invasion of privacy, in combination with an attempt to find something or to obtain information, is a search within the meaning of the Fourth Amendment.  In that case, attaching a GPS device to a vehicle owned by the suspect's wife but used exclusively by the suspect, and then using the device to monitor the vehicle's movements, was found to constitute a Fourth Amendment search.

Even in the absence of a trespass, a Fourth Amendment "search" occurs when the Government violates a subjective expectation of privacy that society recognizes as reasonable.  A search does not occur unless an individual exhibits an expectation of privacy and society is willing to recognize that expectation as reasonable.  Here the court held that Estrella did not have a reasonable expectation of privacy in his employer's van or its movements on public roads; thus, placement of the GPS device and data collection was not a "search," since Estrella had no interest in the van when the GPS device was attached in the public parking lot and subsequently monitored by law enforcement.  Estrella provided no evidence that he had had permission to drive the van at the time the GPS device was attached to it.

November 20, 2012

Doug Plank, Senior Attorney, National Legal Research Group

The use of narcotics-detecting dogs is a well-established practice in American law enforcement operations.  Trained dogs are routinely used in an attempt to discover the presence of drugs in a variety of settings, including motor vehicle stops, investigative detentions of individuals in public places, and scans of luggage at airports, train stations, or bus terminals.  For the most part, the courts have sanctioned the use of trained dogs in the belief that their ability to detect drugs is so well developed and reliable that when they alert on a location, drugs will be discovered there.  However, some recent studies have placed that confidence in the performance of trained dogs into question.  Now, in a case that will be sure to have widespread repercussions for law enforcement, the U.S. Supreme Court has agreed to revisit the issue of the use of trained narcotics dogs in law enforcement.

In its first decision addressing searches by dogs, United States v. Place, 462 U.S. 696, 707 (1983), the Supreme Court held that the use of a "well-trained narcotics detection dog" to detect the odor of narcotics in luggage at an airport was not a search for purposes of the Fourth Amendment, and the Court strongly implied that the subsequent alert by the dog on the luggage—indicating that the dog did indeed smell narcotics—was by itself a sufficient basis to determine that there was probable cause to justify a search warrant to search the luggage.  In reaching that conclusion, the Court determined that the dog sniff was "sui generis" in investigative procedures, meaning that the sniff was "much less intrusive than a typical search," while at the same time reliably informative regarding the contents of the luggage.  Id. The Court ultimately held in Place, however, that despite being supported by reasonable suspicion, the detention of the luggage for 90 minutes while awaiting the arrival of the detection dog was too unreasonable to be justified as an investigative detention under Terry v. Ohio, 392 U.S 1 (1968), and therefore invalidated all that followed.  The Court thus found that the evidence discovered in the luggage had to be suppressed.

Subsequently, in Illinois v. Caballes, 543 U.S. 405 (2005), the Court held that the use of a narcotics-detection dog to sniff around the exterior of a motorist's vehicle during an investigative stop was not a search, again because of the lack of a cognizable infringement on the motorist's Fourth Amendment rights.  After the dog had alerted on the trunk of the vehicle, the police searched the trunk and discovered narcotics.  In reinstating the ruling of the trial court that the search of the trunk was supported by probable cause, the Supreme Court necessarily concluded that the alert by the dog was itself enough to provide probable cause to search.

Justice Souter wrote a dissenting opinion in Caballes that questioned the reliability of narcotics dogs and thus questioned the underlying justification for the Place rule.   Souter argued that there was little reason to believe that a special rule should be applied to dog sniffs, as the unique reliability of trained dogs was simply not shown by empirical findings:

At the heart both of Place and the Court's opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. . . .

December 18, 2012

Fred Shackelford, Senior Attorney, National Legal Research Group

Under English common law, a right of action for personal injury abated upon the injured person's death, and the decedent's dependents were left without a legal remedy. In 1846, the English Parliament enacted the Fatal Accidents Act, better known as Lord Campbell's Act, creating a cause of action for wrongful death. Before long, all of the state legislatures in the United States had passed similar wrongful death statutes.

However, beginning as early as 1884, American courts interpreted these statutes to exclude recovery for the death of unborn children. See Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). This trend began to change in 1946, as courts started to allow recovery for the wrongful death of infants who had been injured before birth but died after being born alive. Cf. Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946) (recognizing cause of action for prenatal injury incurred after fetus became viable). As of late 2011, at least 36 states generally recognized, whether by statute or case law, a cause of action for the death of an unborn child. Carranza v. United States, 2011 UT 80, & 14 n.9, 267 P.3d 912.

However, not all of these states have specifically addressed the issue of whether a cause of action exists for the death of an unborn child where the death occurs prior to the child's viability. Courts that have decided this issue have reached different conclusions. For example, courts in New York, North Carolina, and South Carolina have refused to allow recovery for the wrongful death of nonviable fetuses or have suggested that there can be no such recovery. Johnson v. Ruark Obstetrics & Gynecology Assocs., 365 S.E.2d 909, 912 (N.C. Ct. App. 1988) (dictum), aff'd, 395 S.E.2d 851 (N.C. 1990); Crosby v. Glasscock Trucking Co., 532 S.E.2d 856 (S.C. 2000); Bacani v. Rosenberg, 861 N.Y.S.2d 24 (App. Div. 2008). Conversely, courts in Alabama, Illinois, Missouri, Oklahoma, South Dakota, and Utah have recognized causes of action for the wrongful death of nonviable fetuses. Mack v. Carmack, 79 So. 3d 597 (Ala. 2011); Smith v. Mercy Hosp. & Med. Ctr., 560 N.E.2d 1164 (Ill. App. Ct. 1990); Connor v. Monkem Co., 898 S.W.2d 89, 92 (Mo. 1995); Pino v. United States, 2008 OK 26, 183 P.3d 1001; Wiersma v. Maple Leaf Farms, 1996 SD 16, 543 N.W.2d 787; Carranza, 2011 UT 80, & 14 n.9, 267 P.3d 912. See generally Sheldon R. Shapiro, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411.

Of course, since wrongful death causes of action arise by statute, the issue is typically resolved by interpreting statutory language. The Restatement (Second) of Torts reflects this reality:

Harm To Unborn Child

(1)            One who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.

(2)            If the child is not born alive, there is no liability unless the applicable wrongful death statute so provides.

Restatement § 869.