The law blog of Aurora attorney Mike Huseman, featuring practice updates authored by Northern Illinois University College of Law alumni, as well as guest contributions from non-NIU lawyers and law students.
Tuesday, December 28, 2010
How the Ever-Expanding Privacy Clause of the Illinois Constitution Can Help Defendants
Federal Cases Citing the HAMP and an Illinois Judge's Power to Stay Foreclosure Proceedings
Federal Cases Citing the HAMP and an Illinois Judge’s Power to Stay Foreclosure Proceedings
You have asked me to find federal cases that specifically cite the Home Affordable Modification Program (HAMP) and to determine whether a judge has the power to stay foreclosure proceedings while a mortgagor is in the process of loan modification. I have reviewed case law in California and Florida, and have consulted the Illinois Compiled Statutes.
In the case of Phu Van Nguyen v. Bac Home Loan Servs., L.P., 2010 U.S. Dist. Lexis 105704 (N.D. Cal., Oct. 1, 2010), the judge cited the HAMP and laid out what qualifies an individual for the program in detail. Id. at 6. The plaintiff in Phu Van Nguyen alleged that the mortgagee had breached its implied covenant of good faith by not notifying the plaintiff of the plaintiff’s HAMP eligibilities or HAMP guidelines. Id. at 11-12. The court went on to say that, “…numerous courts have considered claims…and concluded that mortgage loan borrowers do not have standing as ‘intended beneficiaries’ of HAMP [Servicer Participation Agreement, or] SPAs.” Id. at 13, citing Escobedo v. Countrywide, 2009 WL 4981618 (S.D. Cal. Dec. 15, 2009) at 3. The Escobedo court went on to say that, "…a qualified borrower would not be reasonable in relying on the [HAMP] Agreement as manifesting an intention to confer a right on him or her because the [HAMP] Agreement does not [mandate] that a [loan servicer] modify eligible loans." Escobedo, 2009 WL at 3. What this means for the client is that he has no guaranteed protection under the HAMP and is not guaranteed a loan modification under HAMP, so the bank can proceed with the foreclosure if it wishes.
Florida federal courts have ruled similarly. For example, in Zoher v. Chase Home Fin., 2010 U.S. Dist. Lexis 109936 (S.D. Flo., Oct. 15, 2010), where the court found that, “[t]he purpose of the program is to delay or avoid foreclosures by offering incentives to servicers to modify home loans…” and that,” [f]inding an implied private right of action for mortgagors would discourage servicers from participating in the program because they would be exposed to significant litigation expenses.” Id, at 9 -10. Under Florida precedent, the client has no redress available to him under federal law if Countrywide does not approve his loan modification.
Turning to Illinois law, a client may have relief under 735 ILCS 5/15-1508(d-5), effective as of July 23, 2010, which provides in pertinent part that, “ …the court that entered the judgment shall set aside a sale … upon motion of the mortgagor at any time prior to the confirmation of the sale, if the mortgagor proves by a preponderance of the evidence that (i) the mortgagor has applied for assistance under the Making Home Affordable Program … and (ii) the mortgaged real estate was sold in material violation of the program's requirements for proceeding to a judicial sale.” What this means for the client is that if the bank does go through with the foreclosure proceeding to where the judge orders a judicial sale, the client can go back to court and stop the sale from going through.
While a judge does not specifically have the power to stay a foreclosure proceeding, the client may file a Motion to Stay Judicial Sale, but he must be in the process of refinancing his home with a loan modification that will cover the existing mortgage and costs and be able to provide sufficient proof when the judge orders a judicial sale. In the end, the client will most likely have to continue with the foreclosure proceeding before he can take action to prevent the sale of his home.
Friday, December 24, 2010
Warm Holiday Wishes*
Wednesday, December 22, 2010
Controversial Arizona-like Immigration Bill Comes to Illinois
On April 23, 2010, Arizona Governor, Jan Brewer signed SB1070 into law, sparking national outrage and debate. The most controversial provision in the law is contained in Sec. 11-1051(B), which reads, in pertinent part, that:
"For any lawful stop, detention or arrest made by a law enforcement official...in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status of the person before the person is released."
SB1070 outraged the hispanic community because they perceived the law as unfairly and disproportionately targeting lawful hispanic residents and aliens from Mexico. The Federal government was outraged by SB1070 because it perceived the law as impinging upon its constitutional right to regulate immigration law. It was the Supremacy Clause argument by the Federal Government, and not the equal protection argument made by angry citizens, that persuaded District Court Judge Susan Bolton to issue a preliminary injunction on July 28, 2010, enjoining certain provisions of SB1070, such as the 11-1051(B) provision above. The state of Arizona filed an interlocutory appeal in the U.S. C.O.A. 9th Circuit, which is still pending. Meanwhile, SB1070 has found its way to Illinois in the form of HB6937.
HB6937, unlike SB1070, has not yet been signed into law. The First Reading of HB6937 was on November, 10, 2010, after which it was referred to the House Rules Committee, where it is now under review. HB6937, which contains language almost identical to 11-1051(B) above, also criminalizes willful failure to complete or carry an alien registration document; soliciting employment, applying for employment, or working as an unauthorized alien; stopping a vehicle to hire a worker; and transporting, concealing, or harboring an unauthorized alien.
The most controversial provision of HB6937, like SB1070, is the 11-1051(B)-like provision requiring officers to ascertain a driver's immigration status "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." Even though 11-1051(B) also contains the provisio that "A law enforcement official or agency of this State or a political subdivision of this State may not consider race, color, or national origin in implementing the requirements of this subsection (b) except to the extent permitted by the United States or Illinois Constitution," civil liberties advocates are nonetheless concerned that officers will actually use these factors to form their "reasonable suspicion" and that hispanics will therefore disproportionately be affected by this provision.
Though an equal protection argument like this would seem to carry the day on this issue, I believe that even if HB6937 survives the immense political opposition that it is sure to receive in Democrat-dominated Illinois, it will suffer the same fate as SB1070 in Federal Court. Though the District Court chose not to enjoin SB1070 in its entirety, it did enjoin 11-1051(B) on Supremacy Clause grounds. The Supremacy Clause in Article VI, makes federal law the "supreme law of the land." Furthermore, the "the Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers." Bolton Order at 10. The U.S. government argued that 11-1051(B) is preempted because it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities." Bolton Order at 14. The court agreed, enjoining 11-501(B) because, among other reasons, 11-1051(B) subjecting legally present aliens to "'the possibility of inquisitorial practices and police surveillance," in contravention of Supreme Court case law." Bolton Order at 17.
Even if HB6937 makes it through the legislative gauntlet it will surely enter, the law will probably be struck down as unconstitutional on Supremacy Clause grounds. I don't envision courts allowing states to enact their own immigration legislation when the federal government's exclusive power over immigration laws is rooted in the Constitution.
Sunday, December 19, 2010
When Does Someone Have Apparent Authority to Consent to a Search?
On September 9th, the Seventh Circuit (which geographically embraces Illinois) issued an interesting decision illustrating the "apparent authority" exception to the Fourth Amendment. In U.S. v. King, No. 09-1974, slip op. (7th Cir. September 9, 2010), the defendant, a high-ranking member of the Latin Kings street gang, was charged with and convicted of "conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and attempted possession with intent intent to distribute 500 grams or more of cocaine." King, No. 09-1974, slip op. at 1-2. Jesse Guajardo, a low-ranking Latin King who was also a secret government informant, contracted with defendant and defendant's superior to provide protection for Guajardo's cocaine business in exchange for money and cocaine. Id. at 2. Guajardo told defendant that he had received 10 kilos of cocaine and that he would soon be receiving more, for which he would need protection. Id. at 3-4. For protection of the cocaine, Guajardo paid defendant $2,000 and promised to pay him a kilo of cocaine at a later time. Id. at 4. Guajardo later delivered a "sham" kilo of cocaine to a small taco restaurant which defendant and another gang member owned. Id. Defendant accepted the kilo of cocaine and hid it above a refrigerator in the back of the restaurant. Id. Defendant was arrested the next day. Id. at 5.
At 9:00 am on the day of defendant's arrest, plain clothes officers arrived at the restaurant, which was not scheduled to open until 11:00 am. At around 9:45, a cook in the restaurant opened the door and allowed the officers in. King, No. 09-1974, slip op. at 5. An alarm went off, and the cook disabled it by entering the code. Id. The cook told the officers that he was not the owner, but just the cook. Id. The cook orally consented to a search of the premises, which yielded the sham kilo of cocaine above the refrigerator Id. at 6. After he was indicted, the defendant moved to suppress the sham kilo seized from the restaurant, which was denied. Id.
At issue was "whether Cabrera-Lopez [the cook] had authority to consent to the search and whether his consent was voluntary." Id. The Fourth Amendment generally protects against warrantless searches (with several exceptions). However, "'A warrantless search does not violate the Fourth Amendment if a person possessing, or reasonably believed to possess, authority over the premises voluntarily consents to the search.'" King, No. 09-197, slip op. at 9 [citations omitted]. "Apparent authority" turns on "whether the facts available to the officer at the time would allow a person of reasonable caution to believe that the consenting party had authority over the premises." Id. [citations omitted]. On the issue of apparent authority, the court found that the cook had apparent authority to consent to the search because he "had keys to the restaurant and the code to deactivate the alarm" and "He also opened the restaurant alone," which lead the officers to reasonable believe that "he had full control over the premises, including the authority to grant access to others." Id. at 10.
King is distinguishable from the seminal apparent authority case of Stoner v. California, 376 U.S. 483 (1964). In Stoner, police officers in search of an armed robber found a checkbook containing stubs for checks that had been written to a local hotel. Id. at 484. The officers went to the hotel and asked the hotel night clerk if anyone by defendant's name was staying there. Id. at 484-85. The night clerk responded in the affirmative, gave the officers permission to enter defendant's hotel room, led the officers to the room, and opened the room, wherein evidence from the robberies was discovered. Id. at 485-86. At issue was whether the night clerk had "apparent authority" to consent to the search. The Court held that the clerk did not have apparent authority to consent to the search of the defendant's hotel room because the defendant's Fourth Amendment rights belonged to him and not the clerk nor the hotel, and that, therefore, he was the only person who "could waive [his Fourth Amendment] rights by word or deed, either directly or through an agent," which he did not do. Id. at 489. Because the defendant did not directly waive his Fourth Amendment right directly or through an agency relationship with the hotel or its employees, the hotel clerk did not possess apparent authority to consent to the search. Id.
The facts of King and Stoner are similar. Police officers entered a business hoping to ultimately discover evidence linked to defendant. Defendant was not present, but another person on the premises was. The person on the premises allowed the officers behind locked doors, where they eventually found the evidence from defendant that they were looking for. So why did the King court rule opposite of the Stoner court? Apparent authority is loosely modeled on a principal-agent relationship. In a principal-agent relationship, the principal gives the agent the authority to act on its behalf. The principal is therefore generally liable for the actions of the agent. In an apparent authority situation, a police officer determines that the agent has authority to consent to the search of the principle's property because the principle has given him the authority to do so. In King, the police officers formed this belief because the cook had the security code, the keys to the restaurant, and he opened it himself. The cook in King (the agent) was given control over the restaurant by the defendant (the principle). Therefore, the agent-cook could consent to the search of the restaurant on the behalf of the principal-defendant. In Stoner, however, there was no agency relationship between the defendant and the clerk. The defendant consented to cleaning staff entering his room, but he did not give the clerk any authority to allow people into his room. Therefore, there was no apparent authority.
A question of apparent authority will depend on the facts. If the person allowing the police entry to the area was given control of that area by one with superior rights to the area, they probably have apparent authority to consent to a search of the area. If that person was not given control of the area by one with superior rights to the area, they probably do not have apparent authority to consent to a search of the area.
Tuesday, December 14, 2010
The Economic Argument For Abolishing the Death Penalty in Illinois
Death penalty debates, whether in scholarly literature or over the dinner table, are usually divisive, pitting one group, who believes that the death penalty is cruel and unusual punishment, against another group, who believes in taking an eye for an eye. These debates typically revolve around themes of morality and ethics, with economics usually taking a back seat. In a recent article over at the WSJ Law Blog, however, Ashby Jones discusses how, in these difficult economic times, the costs of the death penalty are beginning to take center stage in the death penalty debate.
The article cites California as an example, where the costs of death row has lawmakers considering whether the enormous expense of maintaining the death penalty is justifiable when the state is in economic crisis. According to the article, The California penal system costs the state $137M per year, which would drop to $11M per year if the death penalty was abolished. In July of 2009, the California state prison system housed 170,000 inmates, only 648 of whom where on death row. If you take the amount it currently costs to run the California penal system ($137M) and subtract what it would cost without a death row ($11M), you would reach $126M, which would be the cost of death row. $126M/$170M would give you the percentage of the budget dedicated to death row, which is 74%. Now, if you take the number of death row inmates (648) and divide them by the total number of inmates (170,000), you will arrive at .0038%. This means that 74% of California's prison budget goes to pay for only .0038% of prisoners. This works out to $194,444 per death row inmate, per year.
The WSJ article was posted on Dec. 8th, just nine days after the Illinois House Judiciary Committee voted 4-3 for SB3539, which would abolish capital punishment in Illinois. The WSJ article cites Illinois as having spent $100M on death row since 2000, when Gov. George Ryan declared a moratorium on the death penalty in Illinois. If Illinois spent $100M on death row inmates in the last ten years, that means that it spends, on average, roughly $10M per year on death row inmates. As of November 2010, there were fifteen inmates on death row in Illinois. If Illinois, as it has in the past, spent an average of $10M per year on death row inmates, it would have cost $10M to house 15 inmates this year, which works out to $666,666 per inmate, which is $472,222 more per inmate than California spends on its death row inmates.
Morality considerations aside, the economic argument against the death penalty is impossible to ignore. Even as taxes in the state continue to rise, Illinois, like California is struggling to pay its bills. The last time that death penalty abolishment legislation passed the House Judiciary Committee was in 2003, when HB213 passed by a vote of 8-4 but ultimately died in the House. SB3539, however, might succeed where HB213 failed. Not necessarily because the political climate surrounding the death penalty has changed, but because Illinois' budgetary system has significantly changed for the worse from 2003 to 2010. Illinois could very well follow cash-strapped California's lead by taking a hard look at the economic costs of maintaining the death penalty, especially when nobody has been executed in Illinois for the past ten years. Even though it is irresponsible to spend $194,444 per inmate per year, it is downright absurd to spend over triple that per year to incarcerate a death row inmate for one year in Illinois. In this challenging economic climate, it might be this very compelling economic argument that pushes death penalty supporters aside and pushes SB3539 through the legislature and into law.
Monday, December 13, 2010
Plainfield Passes New Business Registration Ordinance.
Section 4-431 provides that a business license can be revoked or suspended for a number of different reasons. For instance:
(1) Fraud, misrepresentation or an incorrect statement contained in the initial or renewal application.Once the village learns that a business owner has violated any of the provisions outlined above, the village president shall immediately suspend the owner's license. Notice of the suspension must be served personally or by certified mail.
(2) Conviction of any misdemeanor or felony.
(3) Conducting the business as to constitute a breach of the peace, or a menace to the health, safety or welfare of the public or a disturbance of the peace or comfort of residents of the village.
(4) Expiration or cancellation of any required bond or insurance.
(5) Actions unauthorized or beyond the scope of the license granted.
(6) Violation of any provisions of the village’s Building Code, Zoning Ordinance, Fire Protection Code or any other provision of the village’s Code or local Fire Protection Codes.
(8) Refusal of the owner to cooperate with Village inspections.
The notice shall contain a statement of facts upon which the village president has acted in suspending the license. Upon service of the notice of suspension the licensee shall cease all business related activity at the location that is the subject of the license. The licensee shall have the right to make demand upon the village clerk for a hearing to be held within five (5) business days of the village’s receipt of the licensee’s demand for hearing.
Upon the filing of such a demand with the village clerk, the village president shall set a date and time for the hearing. All such hearings shall be held at the village’s principal place of business, or at such other public location designated by the village president. At the hearing the licensee, and any other interested person, shall have the right to present evidence as to the facts upon which the village president based the suspension of the license, and any other facts which may aid the village president in determining whether this article has been violated.
If after such hearing the village president finds this article has been violated, he shall within three (3) business days after the hearing file with the village clerk for public inspection and serve upon the licensee and all interested persons participating in the hearing, a written statement of the facts upon which he bases such findings and shall affirm or vacate the suspension and/or issue an order of revocation of the license. If after such hearing the village president finds this article has not been violated, he shall immediately reinstate the license.
Sunday, December 12, 2010
New Grounds for Challenging Red Light Camera Tickets in Illinois
- Section 5/11-208.3(b)(3) is amended to require that in municipalities with less than 1 million inhabitants or in counties with less than 3 million inhabitants, a retired or current police officer must review the camera technician's determination that the driver in the photo actually committed an infraction under the Illinois Vehicle Code. The same is true for municipalities with 1 million or more inhabitants or in counties with 3 million or more inhabitants, except that in addition to a retired or current police officer, an unaffiliated technician can also be used to review the first technician's determination of an ordinance violation.
- Section 5/11-208.3(b)(3) is also amended to require that municipalities and counties must not charge an extra fee for the driver exercising her right to an administrative hearing in order to challenge the ticket. This section is also amended to require that municipalities and counties give defendants 25 days following the hearing date to pay any civil penalties resulting from a guilty finding at the hearing.
- Section 5/11-208.6(b-5) is amended to require municipalities and counties to produce the image captured by the red light camera and to make that image accessible to the driver online.
- Section 5/11-208.6(c-5) is amended to prohibit municipalities and counties from issuing red light tickets when the driver comes to a complete stop beyond the stop line or in the crosswalk but fails to enter the intersection, unless pedestrians or bicyclists are crossing the road when the vehicle comes to a stop.
- Section 5/11-208.6(k-3) is amended to require municipalities and counties with one or more red light cameras to provide notice to drivers of the location of the cameras via the municipality or county website.
Saturday, December 11, 2010
A small claims fiasco
Recently, I had a case where a pro se Plaintiff handed my client cash to bail her son out of jail. My client got a receipt and put his name on the slip for the check to be returned to his address. The check didn't come back to his house for three months. In the meantime the individual who was bailed out of jail borrowed substantial sums of money from my client. My client apparently lent the individual all this money because he was promised he could keep the check that was coming back from the bail money. The Plaintiff, of course, insisted the money was hers and that her son had no authority to use this money to secure loans from friends.
My initial impression of the case was that we were gonna lose big time. Every small claims hearing that I had attended was conducted very informally with Rule 286b being invoked by the judge himself. And, every time this happened the judge focused less on procedure and rules and more on getting to the truth of the matter. This meant as 286b says "At the informal hearing all relevant evidence shall be admissible and the court may relax the rules of procedure and the rules of evidence." Furthermore, the Plaintiff had a cancelled check from an account that was clearly hers made out to cash in the bail amount and that was dated from the day that bail was posted. Also, my client was going to have to stipulate that she handed him the money. I assumed this because I believe the judge was going to ask him this question regardless of whether the Plaintiff knew how to cross-ex him or not. This was how my other experiences had been.
So, with all that in mind, I took the approach that I was going to have to invoke Rule 286b if the judge didn't do so himself and try to get hearsay evidence in to demonstrate that representations were made to my client by the individual who was bailed out of jail. To my surprise the judge did not invoke the rule. This was the first time this happened to me in small claims with a pro se defendant. I was worried that the Plaintiff could win her case because I didn't think she had to prove that much to prevail and I figured that the judge would still go easy on her. My thought was that the only way I could win was if I could raise doubt over the source of the money that was handed to my client. And, the only way I could adequately do that was to bring in hearsay evidence. So, I invoked the Rule. The judge looked surprised and asked "Counsel, are you sure you want to do that?" I said I was sure. Looking back, that was probably a mistake but I couldn't have known that at the time. As things turned out, the judge was pretty hard on her. He limited her testimony significantly. She did manage to get the bail receipt and cancelled check in to evidence. I didn't object for reasons explained above. And, I stipulated that my client received cash from her.
When I cross examined her, I tried to raise doubt about the source of the funds handed to my client and I tried to ask questions that would make it look like my client could have legitimately believed that the money belonged to the individual bailed out jail and not the Plaintiff. Finally, I questioned my client about hearsay statements made by the individual bailed out jail. The judge stopped me instantly. "Mr. Krause, what is the relevance of all this." I tried to explain the probative value of my questions. "Mr. Krause, I don't want to get into these hearsay conversations that your client participated in." I responed, "your honor, I invoked Rule 286b?" The judge said, "I said I would relax the rules of evidence, not throw them out." So, it became clear to me that hearsay wasn't neccesarily welcome even in 286b situations. I thought "all relevant evidence" was allowed. That is not neccessarily the case. In fact, I am still not sure what the law on this matter is but I know I can't take it for granted in the future. After that, I thought I was going to lose. To my surprise, the judge found in favor of my client. He said the Plaintiff didn't meet her burden of proof. I actually still don't know what kind of case it was. Was it a conversion or trover case? The judge didn't mention what elements she had to meet or that she failed to meet. Whatever it was, I completely failed to spot the issue but still managed to prevail. In any event, I know small claims is nothing to take lightly.
Thursday, December 9, 2010
Can Ineffective Assistance Claims be Heard by Courts Prior to Trial?
Wednesday, December 8, 2010
ABA Journal Top 100 Blogs
Tuesday, December 7, 2010
Lawsuit Lenders Targeting Divorce Litigants: Conflict of Interest?
Friday, December 3, 2010
The Plainfield Village Code Specifically Authorizes Texting While Driving.
Negligently is defined as, among other things, engaging in inattentive actions. Inattentive actions include, among other things, the use of an electronic communication device. Electronic communications devices include, among other things, cell phones and PDAs capable of being used for the purpose of composing, reading or sending an electronic message. Here is the full text of the ordinance.
Then the ordinance declares that "This section is not intended to prohibit the use of an electronic communication device during the safe operation of a motor vehicle."
Cool. So, when I am driving through downtown Plainfield, as long as I am safely operating my car, I can text, watch youtube videos, tweet, and compete in online poker tournaments.
The argument is that you could never operate your car safely while doing any of those things. But keep in mind that police can pull you over if they see you texting, even if you have not made any other traffic infractions. If that happened, I believe you could at least argue this defense to the village prosecutor with a straight face. Of course, I can argue anything with a straight face, as you can tell from the preceding paragraphs. ;)
Police Creating The Exigent Circumstance: A Preview of Kentucky v. King
Thursday, December 2, 2010
Illinois Civil Union Law
I have been following this law for some time and it, in a nutshell, gives a "Party to a civil union" (I would have used "domestic partner") all of the legal rights of a spouse in Illinois. A non-exclusive list of the big changes:
A "Party to a civil union" gains legal rights to:
- Make medical decisions without a Healthcare POA;
- Have hospital visitation when visitation is limited to family;
- Share nursing home rooms;
- Spousal coverage under employer based health insurance plans;
- Share in state pensions;
- Receive inheritance without estate planning documents;
- File suit over a wrongful death;
- Invoke privilege to not have to testify against a partner.
- receiving a Social Security survivor's benefit;
- filing joint federal tax returns;
- receiving any other federal benefits reserved for a spouse.
A full text version of the act can be found here. Next year should be a stellar year for wedding planners, photographers, caterers, and anyone else in the wedding industry!