Blogs
In today's Wall Street Journal, Jacob Gershman (lead writer of its Law Blog) wrote an article about various views, including those held by Supreme Court and Appellate Court Judges, as to the use of adverbs in the law. He noted that their use suffers much "adversity."
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Use of Adverbs in the LawJacob Gersham wrote that the use of adverbs "not only flourishes but wields power" in the American legal system. He asserts that they of late have taken on an "increasingly important - and often contentious role in courthouses" helped by the fact that lawmakers fill new law with them. Mr. Gersham references the following adverbs that presented issues to the court:
- "Knowingly Aim" - the 8th Circuit was presented with the question as to the meaning of the phrase containing the adverb knowingly. ["knowingly aimed a laser pointer at an aircraft"] U.S. v. Smith, 756 F.3d 1070 (2014). The issue presented was whether "knowingly" modifies both "aim" and "aircraft."
- "Substantially Burden" - the U.S. Supreme Court was presented with the the meaning of the phrase "substantially burden[ing] a person's exercise of religion" Burwell v. Hobby Lobby Stores, 134 S.Ct. 2571 (2014)
- "Designed Quickly" - that is whether the taxpayer quickly designed to place property beyond the reach of the government in order to justify a federal tax jeopardy assessment. Fumo v. US, 2014 WL 2547797 (E.D. Pennsylvania 2014)
Views CitedJacob Gerham notes various views as to the use of verbs, including the following:
- "superfluous generally" - legal anthropology professor
- "use has surged since the 1980s ... especially in the criminalization of white-collar and regulatory offenses" - Professor Lawrence Solan
- "legislators and adverbs need each other ...[s]tatutes have to be hyper-literal and generic" - Bryan Garner (editor of Black's Law Dictionary)
- "tempting to use an adverb ...it says exactly what you mean" - Judge Gregory K. Orme
- "Makes it more likely a lawyer will lose an appeal" - 2008 study by law scholars
- "Works in your favor" - if judge likes their use
- "I do not like adverbs...their use is a cop-out" - Justice Anthony Kennedy
- "The road to hell is paved with adverbs" - Stephen King ("One Writing - A Memoir of the Craft")
Adverbs The dictionary defines "adverbs" as words used to "modify the sense of a verb, participle, adjective, or other verb." Examples are: as to a verb - he drove slowly (how did he drive?), as to an adjective - he drove a very fast car (how fast was his car?), as to another adverb - she moved quite slowly down the aisle (how slowly did she move?) Adverbs often
- tell when, where, why, or under what conditions something happens
- frequently end in -ly, but many words ending in -ly are adjectives
- have two forms, one ending in -ly and one that does not (late and lately)
Three Functions: More, Less or Describe"Adverbs often functions as intensifiers, conveying a greater or lesser emphasis to something" and serve three different functions:
- to emphasize (I really don't, She simply ignored me)
- to amplify (I so wanted, I know this city well)
- to down tone (The employee almost quit, He sorta felt betray)
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Believe it or not, there are certain circumstances where you are too broke to file. You simply don’t have the means to even come up with the filing fee which is $335. Just yesterday, a potential client walked 45 minutes to see me in my office. Not only was he unemployed, but he had his+ Read More
The post Can You Be Too Broke To File Bankruptcy? appeared first on David M. Siegel.
Cannot Overrule Prior Panel In McNeal, the 11th Court of Appeals was presented with the issues whether it could its mind, that is whether it was bound by the Court's "prior panel precedent" rule to Folendore and allow the strip down of wholly underwater liens in a chapter 7 case despite the Supreme Court's decision in Dewsnup. Timm, 502 U.S. 410 (1992).
Under the prior precedent rule, "a panel cannot overrule a prior one's holding even though convinced it was wrong." United States v. Steele, 147 F. 3d 1316 (11th Cir. 1998)(en banc).
Clearly Contrary Opinion RequiredThis article explains that the 11th Circuit in the case of Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228 (11th Cir. 207), held that “‘[w]ithout a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court.’”
Jordan E. Bublick is a Miami Bankruptcy Lawyer
Cannot Overrule Prior Panel In McNeal v. GMAC Mortgage, LLC, 735 F.3d 1263 (11th Cir. 2012)(wholly underwater liens still avoidable in chapter 7) the 11th Circuit Court of Appeals was presented with the issue whether it could recede from its prior decision in Folendore v. Small Business Administration, 862 F.2d 1537 (11th Cir. 1989), in view of the subsequent Supreme Court decision in Dewsnup v.Timm, 502 U.S. 410 (1992). The Court held that it was bound to follow its decision in Folendore based on the "prior panel precedent" rule. Under the prior precedent rule, "a panel cannot overrule a prior one's holding even though convinced it was wrong." United States v. Steele, 147 F. 3d 1316 (11th Cir. 1998)(en banc).
Clearly Contrary Opinion RequiredThis article explains that the 11th Circuit in the case of Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228 (11th Cir. 2007), held that “‘[w]ithout a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court.’” To constitute and "overruling", the Supreme Court decision "must be clearly on point." Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1289, 1292 (11th Cir.) and "actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel." In re Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000).
Applies Also to Decisions Based on State Law The Court in Broussard v. Souther Pac. Transp. Co, 665 F.2d 1387 (5th Cir. 1982) related that "[t]his rule applies with equal force to cases in which state law provides the substantive rule of decision" and that the Court is therefore bound by this Court's prior decisions on what is the law of a state in a diversity case." Provenzo noted that the "prior panel precedent" rule would also not apply if there was an overruling in an intervening case by the Florida Supreme Court.
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
ControversyThe topic of "not for publication" has raised controvery over the years, the main issues precedential value and the ability to cite as precedent. Some defend and some do not. This article written in 2003 titled "How Opinions are Developed in the United States Court of Appeals for the Eleventh Circuit" explains that "[i]n the Eleventh Circuit, unpublished opinions have no precedential value, which means that they are not binding upon a subsequent panel, although they are persuasive." The author explains that in "most other circuits, citing unpublished opinions is either barred or limited."
11th Circuit Rules - There is a "But"11th Cir. R. 36-2 provides that "opinions shall be unpublished unless a majority of the panels decides to publish it. Unpublished opinion are not considered binding precedent, but they may be cited as persuasive authority." But there is a "but" - this rule states "but see" I.O.P. 7 which provides that in section 2, that "[u]nder the law of this circuit, published opinions are binding precedent" and cites to Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992)(in which the Court writes in footnote one that "[t]he stay of the mandate in Johnson merely delays the return of jurisdiction to the district court to carry out our judgment in that case. The stay in no way affects the duty of this panel and the courts in this circuit to apply now the precedent established by Johnson as binding authority.")"Not to Publish" to "Publish"Rule 36-3 provides that "[a]t any time before the mandate has been issued, the panel, on its own motion or upon the motion of a party, may by unanimous vote order a previously unpublished opinion to be published."
Stare DecisisAs an aside, this article reviews the binding effect of District Court decisions on Bankruptcy Courts in their district - "anarchy". He also explains that "stare decisis" is a legal doctrine that has been part of the American jurisprudence for over 200 year and that under this doctrine "a deliberate or solemn decision of court made after argument on question of law fairly arising in this case and necessary to its determination, is an authority or binding precedent in the same court or in lower courts in the judicial hierarchy in subsequent cases where the very point is again in controversy."
Jordan E. Bublick is a Miami Bankruptcy Lawyer
ControversyThe topic of "not for publication" has raised controvery over the years, the main issues precedential value and the ability to cite as precedent. Some defend and some do not. This article written in 2003 titled "How Opinions are Developed in the United States Court of Appeals for the Eleventh Circuit" explains that "[i]n the Eleventh Circuit, unpublished opinions have no precedential value, which means that they are not binding upon a subsequent panel, although they are persuasive." The author explains that in "most other circuits, citing unpublished opinions is either barred or limited."11th Circuit Rules - There is a "But"11th Cir. R. 36-2 provides that "opinions shall be unpublished unless a majority of the panels decides to publish it. Unpublished opinion are not considered binding precedent, but they may be cited as persuasive authority." But there is a "but" - this rule states "but see" I.O.P. 7 which provides that in section 2, that "[u]nder the law of this circuit, published opinions are binding precedent" and cites to Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992)(in which the Court writes in footnote one that "[t]he stay of the mandate in Johnson merely delays the return of jurisdiction to the district court to carry out our judgment in that case. The stay in no way affects the duty of this panel and the courts in this circuit to apply now the precedent established by Johnson as binding authority.")"Not to Publish" to "Publish"Rule 36-3 provides that "[a]t any time before the mandate has been issued, the panel, on its own motion or upon the motion of a party, may by unanimous vote order a previously unpublished opinion to be published."
Stare DecisisAs an aside, this article reviews the binding effect of District Court decisions on Bankruptcy Courts in their district - "anarchy". He also explains that "stare decisis" is a legal doctrine that has been part of the American jurisprudence for over 200 year and that under this doctrine "a deliberate or solemn decision of court made after argument on question of law fairly arising in this case and necessary to its determination, is an authority or binding precedent in the same court or in lower courts in the judicial hierarchy in subsequent cases where the very point is again in controversy."
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Economists with the National Bureau of Economic Research recently examined a half million bankruptcy filings in the United States in order to evaluate the effect of bankruptcy laws on consumers.
They have confirmed what many consumers in Washington and Oregon have long suspected. Namely that the bankruptcy code is an incredibly effective social insurance policy. Specifically found that confirmation of a Chapter 13 bankruptcy plan increases annual earnings by nearly six thousand dollars a year, decreases five-year mortality by 1.2 percentage points, and decreases five-year foreclosure rates by nearly twenty percent.
The authors found that the removal of the disincentive to work resulting from creditors garnishing worker’s paychecks resulted in workers putting in more hours. Moreover, mortality rates declined because resolution of debt issues significantly reduced stress. Finally, because chapter 13 bankruptcy stops foreclosure and gives debtors a means by which they can catch up on their mortgages, foreclosures over all declined significantly.
If you live in Oregon or Washington and are coping with the stress of living with a greater debt burden than you can handle, it is time to get help. The upside to filing bankruptcy is almost always greater than you can even imagine. Please feel free to call me or set an appointment at our Portland, Salem or Vancouver offices.
The original post is titled New Study on Chapter 13 Bankruptcy , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
In the NewsDetroit Chapter 9 Bankruptcy: No Free Water in Detroit - and here - appeal to United Nations High Commission on Human Rights - on Detroit TV
Supreme Court's Updated Website Debuts Monday
The Real Story How GM was Saved (?)
11 Countries Near Bankruptcy
Avoiding the Automatic Stay? - sue the Debtor in another bankruptcy case in the same Bankruptcy Court
Supreme Court to Rule on Bankruptcy Fees - time for defending fee applications - Chapter 11 case of Asarco, LLC
How Not to Get a Continuance - the ruling
Hyperlinks in the Federal Courts"Attorney Guide to Hyperlinking in the Federal Courts"
"Hyperlinking in Federal Court"
"Resistance is Futile - more about Hyperlinks"
"How to Build Electronic Briefs"
Hyperlink Rules in the Southern District of Florida - page 9
Jordan E. Bublick is a Miami Bankruptcy Lawyer
In the NewsDetroit Chapter 9 Bankruptcy: No Free Water in Detroit - appeal to United Nations High Commission on Human Rights
Supreme Court - Updated Website Debuts Monday
The Real Story How GM was Saved (?)
11 Countries Near Bankruptcy
Avoiding the Automatic Stay? - sue the Debtor in another bankruptcy case
Supreme Court to Rule on Bankruptcy Fees - time for defending fee applications
How Not to Get a Continuance - the ruling
Hyperlinks in the Federal Courts"Attorney Guide to Hyperlinking in the Federal Courts"
"Hyperlinking in Federal Court"
"Resistance is Futile - more about Hyperlinks"
"How to Build Electronic Briefs"
Hyperlink Rules in the Southern District of Florida - page 9
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
The 8th Circuit Court of Appeals has ruled that a homeowner has a private right of action to sue their mortgage lender when the bank fails to properly process the application. Topchain v JPMorgan Chase, No. 13-2128 (8th Cir. 2014). This is a significant case because the HAMP laws do not specifically state whether a homeowner may sue their mortgage company when the bank wrongfully refuses to offer a permanent loan modification. Sure, HAMP laws require the banks to modify certain mortgage loans, but what do you do when they refuse to follow the law? According to the 8th Circuit, you may sue them for breach of contract.
Under the Home Affordable Modification Program (“HAMP”), an eligible homeowner receives a Trial Period Plan (TPP) that typically requires the homeowner to make 3 modified payments. If the TPP payments are made on time, the homeowner then receives a permanent loan modification agreement.
In an amazing display of arrogance and bad faith, Chase argued that no contract was ever formed because it did not sign the agreement.
After submitting a HAMP application and making his trial payments, Chase sent Topchain a modification agreement. Topchain signed the agreement and returned it to Chase, but Chase never signed the agreement. In an amazing display of arrogance and bad faith, Chase argued that no contract was ever formed because it did not sign the agreement and thus Topchain could not sue them for breach of contract. The 8th Circuit balked at this defense. First, the court ruled that Chase probably waived the requirement of signing the agreement when they verbally told Topchain that the agreement was accepted. Second, the court ruled that Chase most likely waived the signature requirement by accepting payments provided under the agreement for ten months. Consequently, the case was sent back down to the trial court for litigation on the breach of contact claim.
Homeowners can sue their mortgage lender for not complying with HAMP regulations. A private right of action exists for homeowners. This is a significant victory for homeowners.
Regardless of the outcome in Topchain’s case, the take away is that homeowners can sue their mortgage lender for not complying with HAMP regulations. A private right of action exists for homeowners. This is a significant victory for homeowners.
Other courts have also ruled that HAMP gives homeowners contractual rights to sue their bank when they fail to establish permanent loan modifications for eligible borrowers. See Wigod v Wells Fargo Bank, N.A. 673 F.3d 547 (7th Cir. 2012), Corvello v. Wells Fargo Bank, N.A., 728 F.3d 878 (9th Cir. 2013), Young v. Wells Fargo Bank N.A., 717 F.3d 224 (1st Cir 2013).
Homeowners who are unable to pay their mortgage generally lack the financial resources to sue their mortgage company when their HAMP application has been unfairly denied or delayed. However, Chapter 13 bankruptcy cases offer a forum to litigate HAMP issues with the added benefit of granting protection from foreclosure while that litigation takes place.
Many questions will have to be resolved by the bankruptcy courts now that it is clear that homeowners have contractual rights to obtain HAMP modifications. May a pre-bankruptcy mortgage arrearage be cured through a Chapter 13 Plan calling on the bank to modify the loan? Is the wrongful denial of a loan modification a basis to defend a Motion for Relief from the automatic bankruptcy stay when the homeowner defaults on post-petition payments? May the debtor file an adversary proceeding against the mortgage company when a loan modification is wrongfully denied? This could get interesting.
Image courtesy of Flickr and David Shankbone.
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