Can You Sue Your Bank for Failure to Offer Loan Modifications?

 
A question of first impression before the 11th Circuit is whether a borrower can sue her bank for failure to offer a loan modification in violation of the much-publicized federal mortgage relief programs passed in the midst of the 2008 economic crisis, the Home Affordable Modification Program (HAMP) and the Emergency Economic Stabilization Act of 2008 (EESA).

Short answer:  NO:

When we apply these factors to HAMP and EESA, it is clear that no implied right of action exists. First, EESA and HAMP were designed to “provide authority and facilities that the Secretary of the Treasury can use to restore liquidity and stability to the financial system of the United States.” 12 U.S.C. § 5201(1). EESA was not passed for the “especial benefit” of struggling homeowners, even though they may benefit from HAMP’s incentives to loan servicers.

Second, there is no discernible legislative intent to create a private right of action; in fact, the legislature gave the Secretary the right to initiate a cause of action, via the Administrative Procedure Act. Id. § 5229(a)(1). Third, providing a private right of action against mortgage servicers contravenes the purpose of HAMP—to encourage servicers to modify loans —because it would likely chill servicer participation based on fear of exposure to litigation. And fourth, “[c]ontract and real property law are traditionally the domain of state law.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 174 (1982).

 So that's pretty much the end of that. 

(Or maybe the banks will magically comply with the law?)

Friday blog bonus--read Roy Black's bond motion in the John Goodman DUI manslaughter case!

Peter Halmos -- Will His Ship Ever Come In?

That toe-tappin' crippled yacht case is slowly limping to port, as the parties prepare their post-trial proposed findings of fact and conclusions of law.

And the beat goes on.

It took me all morning to read Steve Marino's excellent 85-page brief, which sets forth in exquisite detail the mountain of commercial litigation required to get the parties to this point (and they're not even done yet).

I guess one SIMPLY AMAZING! thing that fascinates me about this case is the uncontrollable variables that have entered into what should otherwise be a straightforward insurance coverage dispute.

Between the lawyers, the rulings, the clients and the witnesses you have a near-perfect s@#tstorm of what can go wrong when parties engage in f*$k the costs, balls-to-the-wall litigation.

It's almost an ideal case study for commercial litigators in that the subject matter could be anything -- widgets, yachts, whatever -- and the disputes seem both wildly impossible yet depressingly familiar to any of us who do this for a living.

Turning back to Roy Black's intriguing suggestions for UM Law, how in the hail do you teach kids to handle crap like this?

Seriously, how do you -- or even should you -- teach law students to do this type of litigation effectively?

Efficiently?

In such a way that they don't leave the office at night stupefied, screaming at the walls, drinking themselves to oblivion on a Tuesday, and allegedly challenging their girlfriends to naked post-shower sword fights?

UM Law Grad Challenges Girlfriend to Naked Sword Fight?

Meet Rockledge, Florida attorney Terry Lee Locy, a UM Law grad with a self-proclaimed "intensely aggressive" style of litigation:

Terry L. Locy possesses an energetic, articulate, innovative, but most importantly, an intensely aggressive style of litigation that often leaves his opponents fuming and courtroom onlookers entertained and wanting more. In just three short years after graduation from law school, this attorney has built a thriving law practice in Central Florida with ambitions for further expansion. 

Terry is energetic alright, just ask his girlfriend:

A graduate of the University of Miami law school was arrested this week in Cocoa Beach after allegedly threatening to kill his girlfriend in a naked sword duel.

"You're going to need this," a nude Terry Lee Locy, 36, said to his live-in girlfriend as he handed her a sword, according to an arrest report from the Brevard County Sheriff's Office.

The couple had been arguing about Locy's alleged excessive drinking early Wednesday morning, according to an arrest affidavit obtained by Florida Today, when Locy took a mirror off a wall and raised it as if to strike his girlfriend.

The woman took the mirror hook from the wall and flung it at Locy, accord to the police report, causing a cut to his head.

Locy then took a shower and emerged naked to challenge his girlfriend to a duel, police say.

 See, this is an example of where Roy Black's suggestion for improving UM's legal education comes in -- if they would just spend less time on esoteric academic flights of fancy, and more time on courtroom skills and sword duels, we'd be producing not only more skilled attorneys but also better sword duelists.

BTW, I think the pre-duel shower ritual is a nice touch -- say what you want about Terry, but this is clearly a man who cares about personal hygiene.

Warren Sapp, Roy Black, and Other Masters of the Universe.

sapppetition

I'm pretty sure I saw this in a movie once:

This morning, Mr. Goodman was arrested at the Four Seasons Hotel in Miami and charged with DUI manslaughter and vehicular homicide. (Click here to see the police photo.) He was released on $100,000 bail.

A quick review: Mr. Goodman was returning from a late night at his polo club when he crashed his Bentley into 23-year-old Scott Wilson’s Hyundai. Mr. Wilson’s car tumbled into a canal, where it laid upside down and caused Mr. Wilson to drown, police say. Mr. Goodman’s blood alcohol level was later tested and found to be at .177, well over the .08 legal limit.

Police say Mr. Goodman waited nearly an hour to call police and didn’t make an attempt to help Wilson.

Mr. Goodman’s attorney, the famed Miami defense lawyer Roy Black, said in a statement that “Mr. Goodman intends to vigorously defend himself against the criminal charges while continuing to do all within his power to minimize any further suffering by the Wilson family. After thoroughly reviewing the facts available to us, the defense team believes that the arrest warrant and charges reveal only a part of the whole story. Mr. Goodman is entitled to his day in court. We ask that the public and the media not rush to judgment until all of the facts are known.”

Hmm, the Four Seasons, "polo magnate," a Bentley, car crash, waiting an hour, is this that Tom Wolfe book with Tom Hanks?

Meanwhile, Warren Sapp is somehow involved in the Rothstein mess.

Let me get on CM/ECF and see who his lawyer is......hey, it's Gary Farmer.....who used to work at RRA!

And he's doing it for, well, I'll let him explain it:

Petitioner is represented in the instant forfeiture proceeding by the law firm of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. ("Farmer Jaffe Weissing"). SFL note -- too long, fellas!! Farmer Jaffe Weissing have undertaken the representation of Petitioner, and more than forty (40) others similarly situation individuals (the "Farmer Jaffe Weissing Petitioners"), and has agreed not to take any portion of the subject trust fund for payment of the attorneys' fees incurred in this action. Rather, Farmer Jaffe Weissing will seek only a court awarded fee over and above the amounts owed to the Petitioners. Petitioners' counsel's interest in this proceeding is to obtain justice for the Petitioners, who seek the return of their settlement monies which were held in IOTA legal service trust accounts for their benefit by their former attorneys, Rothstein Rosenfeldt Adler, P.A. (RRA).

Judge Cohn has set a status hearing on Sapp's petition for May 28.