Thank you for sharing!

Your article was successfully shared with the contacts you provided.
BANKING No private remedy under federal lending statute Borrowers do not have a private cause of action against a lending institution for violation of a federal lending statute, the Iowa Supreme Court held on April 14. Sturm v. Peoples Trust & Savings Bank, No. 23/04-1139. Peoples Trust & Savings Bank loaned Mark and Lori Sturm $100,000 in July 1999 to build a cabin, requiring a first lien on the Sturms’ land. The Sturms did not receive the full $100,000 because $54,237.28 was used to pay the mortgagee of the land to obtain first-lien status, and $12,118.35 was deducted to pay off a former loan from Peoples. In 2001, Peoples created a new loan in the amount of $143,292.72 for the Sturms, requiring a $4,500 initial payment and monthly payments of $1,359.39. The Sturms defaulted on their loans, and Peoples foreclosed. The couple filed suit claiming that the loan papers were deficient because they failed to state that the first loan would be reduced by payments to the mortgagee and to Peoples, and indicated that the second loan was in fact a renewal of three previous loans and not a new loan. The Iowa trial court granted Peoples’ motion for summary judgment. The Iowa Supreme Court affirmed, saying that 12 U.S.C. 2603 requires lenders to use a “HUD-1″ form that “conspicuously and clearly itemize[s] all charges imposed upon the borrower.” The court said that Congress did not provide a private remedy where the legislative history indicates the statute has a limited purpose and other provisions addressing different violations state that a private remedy exists.   Full text of the decision CIVIL PRACTICE Fugitive status prevents request for habeas relief A mother who leaves the state to avoid serving a jail sentence for contempt of court is considered a fugitive who cannot file for habeas relief from outside the state, the Tennessee Supreme Court ruled on April 13 on a matter of first impression. Searle v. Juvenile Court for Williamson County, No. M2004-00331-SC-R11-HC. A Tennessee juvenile relations court found Tammy Searle in contempt for failure to comply with several court orders related to her compliance with a child support and child custody agreement. Searle appealed the contempt order and fled to California to avoid serving the 590-day sentence imposed. An intermediate appellate court dismissed Searle’s appeal. From California, Searle filed for habeas corpus relief in the same Tennessee juvenile court, seeking to challenge the incarceration order. The juvenile court dismissed her petition and the appellate court affirmed. The Tennessee Supreme Court affirmed. Searle is prohibited from seeking habeas corpus relief under the fugitive disentitlement doctrine. Though Searle does not meet the definition of “fugitive” for purposes of extradition-that is, because she did not commit a crime in Tennessee-the test under the fugitive disentitlement doctrine is less stringent. Searle previously submitted to the jurisdiction of the juvenile court and she was aware of the court proceedings against her and the scheduled hearing. Plus, her fugitive status has a considerable connection to her requested relief. CONSTITUTIONAL LAW Revoking driver’s license for refusing testing is OK The Nebraska Department of Motor Vehicles (DMV) may revoke driver’s licenses for refusal to submit to chemical testing for the unlawful presence of alcohol or drugs, the Nebraska Supreme Court held on April 14 in consolidated cases. Kenley v. Neth, nos. S-04-1186, S-05-230. Two drivers were arrested on suspicion of driving under the influence of alcohol (DUI). One refused to take a breath test, while the other refused a blood test. They were each given a “Notice/Sworn Report/Temporary License” form that informed them that their driver’s licenses would be revoked in 30 days. Upon filing timely petitions for a hearing before the DMV, its director revoked both licenses for one year. On appeal in each case, the Nebraska trial court ruled that Neb. Rev. Stat. � 60-498.01, which relates to motorists who refuse to submit to chemical testing, is facially unconstitutional on due process grounds because it fails to provide a procedure to reinstate an administratively revoked driver’s license if a motorist is subsequently acquitted of the criminal refusal charge. The Nebraska Supreme Court reversed. Civil administrative license revocation proceedings are separate from criminal prosecutions for DUI, and the statute permits license revocation whether criminal charges are filed or successfully prosecuted. The court said that the law did not violate the motorists’ due process rights because they were each given a form that notified them that their licenses would be revoked for refusal to submit to a chemical test and given hearings to address these issues. Taxpayer suit challenging Catholic grant not moot A taxpayers’ suit for injunctive relief from Congress’ appropriation of money for colleges to use for a hybrid secular/religious program is not moot, despite the grant having been spent, the 7th U.S. Circuit Court of Appeals held on April 13. Laskowski v. Spellings, No. 05-2749. Congress appropriated $500,000 to the University of Notre Dame for redistribution to several other religious colleges to enable them to replicate a Notre Dame program training teachers in Catholic schools. A taxpayers’ suit alleged that the grant violated the establishment clause of the U.S. Constitution. The suit sought injunctive relief against the secretary of education, but Notre Dame intervened as a defendant. An Indiana federal court dismissed the suit as moot because Notre Dame had already received and distributed the one-time grant. The 7th Circuit vacated. The plaintiffs’ case would be moot only if the district court could make no order that would compensate them for the injury caused by the improper expenditure. However, it is possible to rectify depletion of the U.S. Treasury by the amount of the grant. Though the education secretary is authorized to seek repayment of a grant diverted for purposes that violate the Constitution, courts are not authorized to review a refusal to take an enforcement action; such decisions are within the absolute discretion of the enforcement agency. Once Notre Dame entered the case to preserve its right to the grant money, the natural remedy was an order against it rather than against the education secretary. If the Department of Education wrongfully took money from taxpayers and gave it to Notre Dame, the courts can order Notre Dame to return the money to the U.S. Treasury. CONSUMER PROTECTION Lawyer’s unpaid-rent suit violated debt collect law A consumer debt collector’s state court lawsuit for unpaid rent qualifies as an “initial communication” under the Fair Debt Collection Practices Act (FDCPA), thereby requiring the debt collector to provide validation notices under that law, the 2d U.S. Circuit Court of Appeals ruled on April 12 in a matter of first impression. Goldman v. Cohen, No. 05-2645. Jeffrey F. Cohen, an attorney for a property management company, sued Leslie Goldman in a New York trial court for more than $13,000 in unpaid rent. A year later, Goldman sued Cohen in federal court, saying Cohen’s lawsuit was an “initial communication” under the terms of the FDCPA, yet lacked the warnings and notices required of such communications under the act. The district court agreed that Cohen violated the FDCPA. The 2d Circuit affirmed, noting that the act’s plain language broadly defines the term “communication.” Including a lawsuit within that definition would be consistent with Congress’ purpose in passing the FDCPA. Furthermore, the U.S. Supreme Court has said that lawyers who regularly attempt to collect debts are covered by the FDCPA. Also, the circuit has held that even a letter threatening to sue can be an “initial communication.” ELECTION LAW Proposition signature collectors can’t sue state Ballot proposition signature collectors had no standing to challenge a state’s denial of their attempts to have items placed on the ballot, the 9th U.S. Circuit Court of Appeals held on April 17. Gest v. Bradbury, No. 04-36034. Mari Ann Gest and other signature collectors for ballot initiatives submitted signatures for various measures, dealing with medical marijuana, term limits and forestry laws, among other things, in an attempt to have them placed on the November 2004 ballot in Oregon. The state of Oregon rejected the submissions citing failure to follow required procedures. The signature collectors sued under 18 U.S.C. 1983, arguing that the rejection of the petitions based on unpublished rules violated their First Amendment and equal protection rights. An Oregon federal court held for the state. Affirming, the 9th Circuit noted that the unpublished rules had been promulgated into administrative law, thus making injunctive relief against unpublished rules unnecessary. In addition, the signature collectors lacked standing because they had not suffered the required “injury-in-fact.” SCHOOLS AND EDUCATION Coach’s vulgar comments don’t violate Title IX Alleged vulgar sexual comments by the University of North Carolina women’s soccer coach didn’t constitute sexual harassment under Title IX of the Educational Amendments of 1972, the 4th U.S. Circuit Court of Appeals held on April 11. Jennings v. University of North Carolina, No. 04-2447. Melissa Jennings was a student at the University of North Carolina at Chapel Hill and a member of the school’s women’s soccer team. Jennings alleged that the team’s coach, Anson Dorrance, made vulgar sexual comments to the North Carolina players, such as referring to their sexual partners as their “fuck of the week” and asking the players whom they had “shagged.” Jennings and another student sued the university and Dorrance, alleging sexual harassment in violation of Title IX and 42 U.S.C. 1983. A district court granted summary judgment to Dorrance and the university. Affirming, the 4th Circuit held that the comments, while inappropriate, did not amount to a Title IX sexual harassment violation. “[S]ome coaches will use profanity, slang, sarcasm, or hamhanded humor, or will yell at a player or group of players to express displeasure, to make a point, or to motivate. Such lapses in linguistic gentility do not necessarily equal a sexually hostile educational environment.” TAXATION District can’t recover by unjust enrichment theory The common law remedy of unjust enrichment may not be used by a school district seeking to recover misdirected property tax revenue, the Ohio Supreme Court ruled on April 12. Bd. of Education of the North Olmsted City School District v. Bd. of Education of the Cleveland Municipal School District, No. 2005-0132. Circuit City Stores Inc. incorrectly filed personal property tax returns for the years 1997, 1998, 1999 and 2000, stating that one of its stores was located in the taxing district of the Cleveland Municipal School District instead of the North Olmsted City School District. Consequently, the county auditor had distributed the personal property tax proceeds for those years from the store to the Cleveland School District. When the mistake was discovered, Circuit City amended its personal property tax returns for 1999 and 2000 but was unable to amend for 1998 and 1997. The county auditor could only redistribute the proceeds for 1999 and 2000. The Board of Education of the North Olmsted City School District filed a claim seeking recovery of $74,849 plus interest under a theory of unjust enrichment from the Cleveland board for tax years 1997 and 1998 for the amount that Circuit City would have paid it for those years if Circuit City had reported the correct location of its store. The Ohio trial court granted the North Olmsted board’s motion for summary judgment. An intermediate appellate court reversed. The Ohio Supreme Court affirmed, holding that recovery under a theory of unjust enrichment was unavailable in this case. Under Ohio’s statutory scheme for financing public education, the Legislature sets forth a complex process that includes provisions for the corrections of mistakes. The common law remedy of unjust enrichment would interfere with the complex process.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.