September 2013

Check this out: the lawprof who thought up the underwater mortgage taking plan, Cornell’s Robert Hockett, along with his co-author, the “Founder and Chief Strategy Officer” of Mortgage Resolution Partners (the venture capitalists who are funding the scheme and who stand to benefit from it), have posted a new article in the Harvard Law & Policy Review, “A Federalist Blessing in Disguise: From National Inaction to Local Action on Underwater Mortgages.”

One guess what the article concludes.

In case you have not been paying attention, here’s the abstract:

While it is widely recognized that the mortgage debt overhang left by the housing price bubble and bust continues to operate as the principal drag upon U.S. macroeconomic recovery, few seem to appreciate just how locally concentrated the problem is. This paper takes the measure of the national mortgage debt overhang problem as a cluster of local problems…

Continue Reading Surprise – New Article In Mortgage Resolution Partners Law Review: Use Of Eminent Domain To Take Mortgages OK!

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On Monday, September 30, 2013, we’ll be speaking along with Dwight Merriam and Cecily Barclay at the International Municipal Lawyers Association’s annual meeting in San Francisco, about three important cases/issues: Koontz, Harvey Cedars, and Lost Tree.

That’s a pretty wide range of cases, but we have some time and we’re sure we’ll have a good discussion. If you are attending the IMLA conference, please be sure to join us: 2:15 – 3:15pm, Hilton San Francisco Union Square (Plaza B, Lobby Level). Continue Reading Upcoming IMLA Panel On Koontz, Harvey Cedars, And Lost Tree

Here’s the latest brief in the Democratic Party’s federal court challenge to Hawaii’s “open primary” system (the Party’s reply brief, which both is its final word supporting its motion for summary judgment, and its response to the State of Hawaii’s counter-motion for summary judgment).

This brief responds to the State’s argument that the mandatory open primary (in which voters can pull a ballot for any party on election day, regardless of the voter’s party affiliation or nonaffiliation) isn’t that much of a burden on the Democrats’ freedom to associate with whom they choose. The Party asserts its associational rights are overly burdened by prohibiting it from insuring that its card-carrying members are the ones who are making the choice for the Party’s general election standard-bearer.

Yes, the brief argues, Hawaii may be overwhelmingly blue, but don’t penalize us for being good at what we do by making…

Continue Reading Hawaii Dem Party In Open Primary Challenge: Hawaii Citizens “Think One Way,” So Don’t Reward Incompetent Parties By Violating Our Associational Rights

A link to a story worth reading about the U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District, No. 11-1147 (June 25, 2013).

In Developing Story at Florida Trend (“The Magazine of Florida Business”), our Owners’ Counsel of America colleague Amy Brigham Boulris is quoted along with the property owner/petitioner Coy Koontz, and two lawprofs who don’t care for the decision.

Check it out, it’s a quick read. Continue Reading Worth Reading On Koontz: “A 20-year legal battle over a water management district’s condition for development is over – sort of.”

Here’s one for all you civil procedure mavens.

The Florida District Court of Appeal concluded that the Board of Trustees, sued for inverse condemnation for beach renourishment (this case is somewhat related to our old friend the Stop the Beach Renourishment case, decided by the Supreme Court in 2010), waived their objections to improper venue. The court held that when the plaintiffs amended their complaint, they did not change the nature of their inverse condemnation claim, which thus “related back,” and since the Board hadn’t objected to venue originally, it could not do so now.

The court also concluded that the Board could be sued in the county where its headquarters are located, even though the taking occured in another county, and that it was a waivable issue, and not one of subject matter jurisdiction. Yes, condemnation actions are in rem and are to be litigated where the property is…

Continue Reading Fla App: Inverse Condemnation Venue Proper Where Taker’s Headquarters Located

This past term, the U.S. Supreme Court in Arkansas Game and Fish Comm’n v. United States, 133 S.Ct. 511 (2012), held that government-induced flooding could result in takings liability, even if the flooding was merely temporary. The Court remanded the case to the Federal Circuit to determine whether the flooding resulted in liability.

The Federal Circuit ordered supplemental briefing, and the parties and amici responded. Earlier this month, the court held oral arguments.

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The government’s counsel argued that the Supreme Court adopted a new test for temporary flood takings that looks like a hybrid Penn Central test, while the Commission’s counsel argued that the Court expressly did not adopt a new test, and that temporary flooding cases are to be treated just like any other physical invasion under the existing test.

With the arguments submitted, now we wait. Continue Reading But … What If Penn Central Terminal Is Flooded?

Here’s some news: the State of Hawaii thinks that Hawaii has a “vibrant multi-party system.”

Really?

The reality, of course, is not only different, it is much different, as a summary of the situation by Honolulu Civil Beat (“One-Party Dominance“) points out. An overwhelmingly Democratic congressional delegation, a nearly one-party legislature, only one non-Democratic governor since the initial post-statehood Bill Quinn (R), etcetera, etcetera, etcetera.

Here’s more interesting news. To all you “crossover” voters who pulled one party or another’s ballot in Hawaii’s “open primary” election: the State of Hawaii says that by doing so, you are affiliating with that party. Well, at least enough that the primary system is not violating the Party’s right to association with whom it wants, meaning most likely not you.

These are among the gems to be gleaned from the State’s counter-motion for summary judgment and memorandum in opp to the…

Continue Reading State Of Hawaii: Open Primary Is Constitutional Because Pulling A Democratic Ballot Is “An Act Of Affiliation With The Democratic Party”

Here’s one we’ve been meaning to post for a while. It’s a Court of Federal Claims opinion in a case involving an indian nation’s takings lawsuit, seeking compensation for its inability to challenge the 1859 conveyance of what is now the town of Southampton, New York without the required tribal consent. Shinnecock Indian Nation v. United States, No. 12-836 L (Aug. 29, 2013).

The judicial taking part of the long opinion (21 single-spaced pages) starts on page 18, where the court rejected the plaintiff’s request to amend its complaint to add a claim for judicial taking. The opinion recounts the judicial takings theory but refused to allow amendment because, “the portion of the Supreme Court’s decision in Stop the Beach that discussed the standard for finding that  judicial taking had occured and stated that a judicial taking was a valid cause of action was signed by only four justices.”…

Continue Reading CFC: No Amendment Of Complaint To Allege Judicial Taking Because Theory Not Adopted By The Federal Courts

A very short opinion (2 pages) about why a trial court cannot consider issues regarding damages when the property owner failed to timely object to the report filed by the court-appointed appraisers. In Clark Cnty. Bd. of Aviation Comm’rs v. Dreyer, No. 10S01-1308-PL-529 (Sep. 12, 2013), the Indiana Supreme Court held it was not because the failure to object deprived the trial court of jurisdiction, but only because … well, you didn’t object. Forfeiture, waiver, whatever you want to call it, we suppose.

Not much there, folks, but we posted it anyway because how often do see a Supreme Court admit that the language in its own earlier opinion “is misleading?”

Clark Cnty Bd of Aviation Commissioners v. Dreyer, No. 10S01-1308-PL-529 (Ind. Sep. 12, 2013) Continue Reading Indiana S Ct: We Goofed

It’s Monday and we’ve got a petition due Tuesday, so we’re not going to spend too much time on posting today. But we did want to update you on the latest on the mortgage front.

  • A San Francisco federal judge concluded that it was too early to bring the lawsuits challenging the takings. This means that the case is just not quite ripe (although it looks like it is ripening fast), not, as some media outlets have been reporting, that the judge approved of the MRP/Richmond eminent domain scheme. 
  • Our Florida colleague Carlos Kelly sends this report from the “Legal Scoop on Southwest Florida Real Estate,” a publication of his firm. Read his Update: Condemnation of Underwater Mortgages here. Many good links to other stories and reports.
  • An Arizona reader sends this item, “Using

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Continue Reading The Latest On The Mortgage Takings Issue