The Lawletter Vol 36 No 2, September 30, 2011
The Lawletter Blog
Read More
0 Comments Click here to read/write comments
Topics: legal research, family law, Sandra Thomas, Utah, physical custody, The Lawletter Vol 36 No 2, parental relocation provision, divorce decree relocation stipulation, modification of decree versus enforcement of decre, change in circumstances, best interests of child, res judicata justification for requiring change of
PROPERTY: Vendor's Purchase-Money Mortgage Priority over Third-Party Purchase-Money Mortgage
Posted by Noel King on Wed, Sep 28, 2011 @ 13:09 PM
The Lawletter Vol 36 No 2, September 30, 2011
Alistair Edwards, Senior Attorney, National Legal Research Group
A "purchase-money mortgage" is a mortgage given to a vendor of real estate or to a third-party lender to the extent that the proceeds of the loan are used to acquire title to the real estate or construct improvements on the real estate.
In real estate transactions, it is common for a vendor of real estate to convey title to the purchaser, receive part of the purchase price in cash, and take back a mortgage on the real estate to secure a promissory note for the balance of the purchase price. Such a mortgage is frequently referred to as a "vendor purchase money mortgage." In an alternative and more common form of the transaction, third party institutional financing is used to "cash out" the vendor. In this situation, the vendor receives part of the purchase price in cash from the purchaser and the balance in cash from a third party lender who takes the purchaser's promissory note secured by a mortgage on the purchaser's newly acquired real estate. This type of mortgage is usually termed a "third party purchase money mortgage." Some land transactions utilize both types of purchase money mortgages. This section focuses on the priority accorded purchase money mortgages of either type over other liens or claims arising through the purchaser that antedate the purchase money transaction, and also on the priority relationship between the two types of purchase money mortgages.
Restatement (Third) of Property: Mortgages § 7.2 cmt. a (1997 & Westlaw current through Apr. 2011). According to the Restatement and the laws of many jurisdictions, "[a] purchase money mortgage, whether or not recorded, has priority over any mortgage, lien, or other claim that attaches to the real estate but is created by or arises against the purchaser‑mortgagor prior to the purchaser-mortgagor's acquisition of title to the real estate." Id. § 7.2(b).
1 Comment Click here to read/write comments
Topics: legal research, Alistair Edwards, property, The Lawletter Vol 36No 2, third-party purchase-money mortgage, Restatement (Third) of Property § 7.2
CONTRACTS: Internet Job Posting Ruled Not Solicitation or Inducement
Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM
The Lawletter Vol 36 No 1, September 9, 2011
Charlene Hicks, Senior Attorney, National Legal Research Group
The effect a job advertisement posted on the LinkedIn webportal may have on a nonsolicitation clause in an existing contract was recently addressed by the Indiana Court of Appeals in Enhanced Network Solutions Group v. Hypersonic Technologies Corp., No. 02A03-1011-PL-609, 2011 WL 2582870 (Ind. Ct. App. June 30, 2011) (slip op.). The case is notable in that it suggests that an Internet job posting does not amount to a solicitation or an inducement.
Enhanced Network Solutions involved an existing contract between Hypersonic, an advanced software engineering company, and ENS, a company in the business of modifying existing software. Under the contract, ENS agreed to acquire certain services from Hypersonic to serve ENS's own clients. In addition, ENS agreed that if the two companies successfully bid on a joint project, it would authorize Hypersonic to act as a subcontractor. The contract also contained an "employee protection clause," which provided that each party would "refrain from soliciting or inducing, or attempting to solicit or induce, any employee of the other Party in any manner that may reasonably be expected to bring about the termination of said employee[.]" Id. at *1.
0 Comments Click here to read/write comments
Topics: legal research, Charlene Hicks, contracts, Internet job posting, LinkedIn, webportal posting, solicitation or inducement, nonsolicitation clause in contract, The Lawletter Vol 36 No 1
WORKERS' COMPENSATION: Workplace Stress-Induced Suicide May Be Compensable Under Workers' Compensation Law
Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM
The Lawletter Vol 36 No 1, September 9, 2011
Suzanne Bailey, Senior Attorney, National Legal Research Group
Is a suicide prompted by stress in the workplace compensable under the workers' compensation law? A New York appellate court has left open the possibility that a suicide committed in reaction to an office investigation is covered as long as the office investigation was not a good-faith personnel action against the decedent.
In Veeder v. New York State Police Department, 86 A.D.3d 762, 928 N.Y.S.2d 89 (2011), the decedent had been employed by the state police department as a forensic scientist for approximately 31 years. In April 2008, during a reaccreditation process for the laboratory in which the decedent worked, an audit uncovered an inconsistency in the fiber proficiency tests that he regularly performed. The department commenced an investigation, and, over the course of three days, several meetings between the decedent and his supervisors were held to discuss the inconsistencies in the test results. The decedent advised his supervisors that he had skipped a step in the fiber test analysis procedure and, therefore, was noncompliant in performing the test. Thereafter, the department initiated a "nonconforming work inquiry." The decedent stopped going to work and ultimately committed suicide on May 23, 2008. The decedent's wife filed a claim for workers' compensation benefits, which was denied by the Workers' Compensation Board on the ground that the decedent's death had not arisen out of and in the course of his employment.
0 Comments Click here to read/write comments
Topics: legal research, workers' compensation, suicide, workplace stress, nonconforming work inquiry, lawful personnel decision, The Lawletter Vol 36 No 1
SCHOOLS/SOCIAL NETWORKING: MySpace: A 2011 Odyssey—School-Imposed Discipline for Off-Campus Internet Speech
Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM
The Lawletter Vol 36 No 1, September 9, 2011
0 Comments Click here to read/write comments
Topics: legal research, Internet, social networking, Steve Friedman, schools, The Lawletter Vol 36 No 1, off-campus discipline, free speech rights, First Amendment, MySpace, disruption of school environment, bullying
PRODUCTS LIABILITY: Is the Statute of Limitations in Individual Products Liability Actions Equitably Tolled During the Pendency of a Class Action in Another Jurisdiction?
Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM
The Lawletter Vol 36 No 1, September 9, 2011
0 Comments Click here to read/write comments
Topics: legal research, products liability, Jeremy Taylor, statute of limitations, The Lawletter Vol 36 No 1, class action, tolling, putative class action, statutory tolling during pendency of putative clas
PROPERTY: RESPA Prohibition Against Charging of Fees Except for Services Actually Performed May Not Require Multiple Service Providers
Posted by Gale Burns on Thu, Aug 25, 2011 @ 10:08 AM
The Lawletter Vol 35 No 2, January 21, 2011
Alistair Edwards, Senior Attorney, National Legal Research Group
In order to reform the real estate settlement process, Congress passed the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617. The purpose of the statute was to ensure that consumers are "provided with greater and more timely information on the nature and costs of the settlement process" and "protected from unnecessarily high settlement charges caused by certain abusive practices." 12 U.S.C. § 2601(a). One significant section, RESPA § 8(b), deals with "splitting charges":
(b) Splitting charges
No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.
Id. § 2607(b). Although that provision talks about "splitting charges," the U.S. District Court for the Southern District of Ohio in Augenstein v. Coldwell Banker Real Estate LLC, No. 2:10‑cv‑191, 2010 WL 4537049 (S.D. Ohio Nov. 9, 2010), recently opined that the above provision can be violated even when there are not multiple settlement service providers splitting charges. The court held that the RESPA provision directing that "[n]o person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service" except "for services actually performed" does not by its plain terms prohibit only the splitting of fees between multiple settlement service providers.
In the Ohio case, the Augensteins had entered into a federally related loan in order to finance their purchase. In connection to the sale and settlement, the Augensteins obtained settlement services from Coldwell Banker. At closing, Coldwell Banker charged the Augensteins an administrative fee of $199 in addition to the total sales/broker commission of $19,710. The Augensteins alleged that Coldwell Banker had not provided any services in exchange for the administrative fee and that the charging and the accepting of the fee violated RESPA because (1) it was a fee for which no services were rendered; and/or (2) it was a duplicative fee for services already rendered as part of the total sales/broker's commission. In holding that the Augensteins had stated a claim under RESPA and that a violation of § 2607(b) did not require multiple providers, the court commented:
This Court finds that the text of RESPA § 8(b) clearly and unambiguously prohibits undivided unearned fees. The statute explicitly states that "[n]o person shall give and no person shall accept" any part of a fee "other than for services actually performed." RESPA § 8(b). In OfficeMax, Inc. v. United States, the Sixth Circuit said that "and" should presumptively be read conjunctively. 428 F.3d 583, 589 (citing Crooks v. Harrelson, 282 U.S. 55, 58, 51 S.Ct. 49, 75 L.Ed. 156 (1930)). But if this reading would lead to incoherent or absurd results, then "and" should be read disjunctively to mean "or." Id. at 589‑90. Keeping in mind that "[i]t has long been a 'familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes,[']" Carter, 553 F.3d at 985 (quoting Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967)), it would lead to absurd results if two settlement service providers could violate § 8(b) by sharing an unearned fee, but one settlement service provider could freely charge consumers such fees. Thus, the "and" in § 8(b) creates two prohibitions: it prohibits a settlement service provider from charging a fee for which no work is performed, and it prohibits a settlement service provider from receiving such a fee. The violation exists regardless of whether the provider is sharing that fee with another. See Sosa, 348 F.3d at 982; see also Santiago, 417 F.3d at 388.
0 Comments Click here to read/write comments
Topics: legal research, Alistair Edwards, property law, RESPA, The Lawletter Vol 35 No 2, splitting charges, multiple service providers, rendered services requirement
CRIMINAL LAW: Search and Seizure—Warrantless Use of GPS Device on Defendant's Vehicle Found to Be a "Search"
Posted by Noel King on Thu, Aug 25, 2011 @ 10:08 AM
The Lawletter Vol 35, No 12, August 26, 2011
Mark Rieber, Senior Attorney, National Legal Research Group
The U.S. Supreme Court recently granted certiorari to the U.S. Court of Appeals for the District of Columbia Circuit to address the issues surrounding the Government's use of a global positioning system ("GPS") tracking device on a defendant's motor vehicle. See United States v. Maynard, 615 F.3d 544 (D.C. Cir.), rehearing en banc denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010), cert. granted, 2011 WL 1456728 (U.S. June 27, 2011) (Nos. 10‑1259, 10A760).
In Maynard, among other surveillance techniques used by police to investigate the defendant, who was suspected of illegal drug activity, was the covert installation, pursuant to a court order, of a GPS tracking device on the defendant's motor vehicle. There were technical violations of the court order, however. The police then used the GPS device to track the defendant's movements 24 hours a day for four weeks.
On appeal following the defendant's drug conviction, the District of Columbia Circuit, disagreeing with three other circuits, held that the use of the GPS device to track the defendant's movements was a search under the Fourth Amendment, stating:
0 Comments Click here to read/write comments
Topics: legal research, DC Circuit, GPS, Fourth Amendment rights, The Lawletter Vol 35 No 12, warrantless search, suppression of evidence, lack of consent, U.S. v. Maynard, vehicle surveillance, criminal law, Mark Rieber
EMPLOYMENT DISCRIMINATION: Retaliation for Opposition to Discrimination
Posted by Noel King on Thu, Aug 25, 2011 @ 10:08 AM
The Lawletter Vol 35 No 12, August 26, 2011
0 Comments Click here to read/write comments
Topics: Dora Vivaz, legal research, Title VII, employment discrimination, The Lawletter Vol 35 No 12, reasonableness standard, prohibition against retaliation
The Lawletter Vol 35 No 12, August 26, 2011
0 Comments Click here to read/write comments
Topics: legal research, family law, Brett turner, The Lawletter Vol 35 No 12, joint filing as tax savings, division of marital property
