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Are you a business owner? Make sure you don't violate these contract provisions

Are you a business owner? Make sure you don't violate these contract provisions

Drafting contracts can be a tedious and difficult process for experienced and new small business owners...

Civil Liberties vs Civil Rights

Civil Liberties vs Civil Rights

In the United States, concepts of civil rights and civil liberties are often mistaken as one idea. However, civil rights and civil liberties refer to different types of guaranteed protections for the people.

Civil Liberties

Civil liberties establish rights the people have against the federal government. Civil liberties are limiting what the government can control to maintain personal freedoms. Essentially the Bill of Rights, or the first ten amendments of the Constitution, define and outline the civil liberties for the American people. The first amendment contains the right and freedom of speech, religion, press, assembly and petition. Other amendments in the Bill of Rights protect liberties corresponding with due process and crime. The ninth amendment protects rights that are not specifically stated in the Constitution. The ninth amendment takes into consideration the evolving rights of the people and allows flexibility that would be determined on a case by case standard.

The declared freedoms in the Bill of Rights aligning with civil liberties were not always protected by state governments. Although later amendments are developed to help make some of the civil liberties protected from state governments, Barron v. Baltimore in 1833 established a precedent that the Bill of Rights could not be applied to state governments. There was also a rising concept of every person having dual citizenship with the Barron v. Baltimore case. That is one citizenship with the United States and another citizenship with the state that the person resides in.

Later the 14th amendment fundamentally put into notion that civil liberties are protected by state governments. Everyone born or naturalized in the United States is now granted citizenship and the state was now forbidden to deny any person “life, liberty or property without due process of the law.” Now ideas mentioned in the Bill of Rights such as quartering soldiers in a person’s home or not forcing people to follow a specific religion was illegal for states to impose on their citizens as well. The states can now not deny rights described in the civil liberties. If the states do impose these rights, the citizens have the right to take the issue to the United States Supreme Court to be judged individually by case. Once a state loses a case associated with civil liberties, the precedent is then put into effect for every state.

Civil Rights

Civil rights protect people against private acts of discrimination and engage the idea of an individual to get fair treatment. In such areas as education, employment and housing, an individual’s age, gender, religion, disability and race should not be an influencing factor of how a person is treated. Essentially a person’s characteristics cannot determine whether they should or should not receive something.  There have been many different civil rights movements in history to help keep these rights modified and timely to what the Unites States population desires.

A recent example of a civil rights to be developed in the United States is the right to gay marriage and the act of not discriminating against a person based on their sexual orientation. Another prominent civil rights movement began in the 1950’s where the sole object was to end racial discrimination and segregation. In southern states, there were some laws segregating races, while in the north, segregating was sometimes happening due to practice. Neither were right so the civil rights movement began to implement the end of segregation and unfair treatment by race. In the sixty’s, the civil rights movement for women began, called the feminist movement, to help bring awareness to how women were discriminated against in topics such as equal pay in the workplace, maternity leave and sexual harassment.

The Civil Rights Act of 1964 is the most prominent legislation that outlawed and made it illegal for a person to be discriminated against by gender, religion, race and disability. Although this act was difficult to enforce in the beginning, the Constitution has been modified with new amendments to help enforce the concepts of civil rights. Civil rights are also still evolving today and will continue to evolve in the United States.

 

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The Fair Housing Act: Conditions required prior to foreclosure

The Fair Housing Act: Conditions required prior to foreclosure

Doucet & Associates argued before the Fifth District that certain conditions must be met before foreclosing on a Fair Housing Act (FHA) loan. In Wells Fargo Bank, N.A. v. Gerst, 5th Dist. Delaware No. 13CAE-05-0042, 2014 WL 108788 (Jan. 9, 2014), The Fifth District reversed the trial’s court’s finding that HUD’s face-to-face meeting requirement was an affirmative defense, and not a condition precedent to the plaintiff-appellee’s foreclosure action. The court stated: “Appellee has failed to establish it complied with the regulation that it have a face-to-face interview with Appellants, or made a reasonable effort to arrange the interview, before bringing the foreclosure action. Further, the letters sent to Appellants . . . cannot be used to demonstrate even minimal compliance with Section 203.604, Title 24 C.F.R., because subsection (d) of that rule prescribes a certified letter as the minimum requirement for a reasonable effort to arrange a face-to-face meeting.”

 

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Racketeering Lawsuit over Robo-Signing Can Proceed

Racketeering Lawsuit over Robo-Signing Can Proceed

Yesterday, a federal appeals court ruled that a RICO lawsuit against Bank of America, its law firm, a law firm employee, and MERS could proceed.

The United States Court of Appeals for the Sixth Circuit ruled that a Racketeer Influenced and Corrupt Organizations Act (“RICO”) lawsuit could proceed against Bank of America, NA (“BANA”), Mortgage Electronic Registration Systems, Inc. (“MERS”), the law firm of Lerner Sampson and Rothfuss, and one of the law firm’s paralegals, for illegal robo-signing in an earlier state court foreclosure action.

The homeowner sued the four entities alleging that the law firm submitted a robo-signed mortgage assignment in an earlier foreclosure knowing that document was fraudulent. The lawsuit alleges that the law firm acted for BANA when it used that mortgage assignment to establish BANA’s ability to foreclose on the homeowner’s home, despite knowing the document was false. The lawsuit included multiple examples of this particular paralegal signing mortgage assignments on behalf of defunct companies, in what has become known as “robo-signing.”

During the foreclosure case, judgment had been taken against the homeowner without him realizing the problematic documents. Only after the homeowner retained Doucet & Associates Co., L.P.A., who brought the robo-signing to the court’s attention, did BANA and LSR vacate the judgment and dismiss the foreclosure. Bank of America dismissed on the eve of the paralegal, Shellie Hill, having to appear and give testimony under oath about the mortgage assignment.

After the foreclosure lawsuit was dismissed, the homeowner filed a federal lawsuit alleging several causes of action against all four parties. The district court judge initially dismissed the lawsuit, but today’s landmark decision by the federal court of appeals reinstated the most serious of the allegations. The lawsuit against BANA, MERS, LSR, and Ms. Hill will now continue under the federal racketeering statute, the Racketeer Influenced and Corrupt Organizations Act, a law initially designed to prosecute mob activity.

The case is Slorp v. Lerner, Sampson, and Rothfuss; Bank of America NA, Shellie Hill, and Mortgage Electronic Registration Systems Inc, Case No. 13-3402, and is available here: http://www.ca6.uscourts.gov/opinions.pdf/14a0745n-06.pdf

Call Doucet & Associates Co., L.P.A. for more information or to help with your case at (614) 944-5219.

 

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