Monthly Archives: January 2021

Following the death of George Floyd during his arrest in Minneapolis, Minnesota, America experienced months of civil unrest throughout the country. It was during these protests that some began to assert that civil society in America was beyond repair and advocated for breaking the shackles of an allegedly oppressive and racially insensitive government. It was from this belief that the idea of establishing autonomous zones free from civil authority and independent from the United States was born. For the first time since 1861, calls for secession were acted upon, and protestors began to commandeer and blockade neighborhoods in major U.S. cities, thereby creating bubbles of autonomous rule within the United States. Protestors denied emergency responders and civil authorities entry to these autonomous zones, and prevented property owners from quietly enjoying their homes and businesses. For days, or even weeks, local and state governments ceded civil authority to the mob before being able to regain a semblance of control over these areas. The Red House Autonomous Zone in Portland, Oregon, demonstrates the negative impact autonomous zones can have on protecting a lienholders collateral assets. The property in question, called the Red House on Mississippi by activists, was owned by the Kinneys, an African American/Native American family. Following a default on their mortgage, the noteholder foreclosed on the property, and it was sold to a developer as a non-judicial foreclosure in 2018. The Multnomah County Circuit Court issued a writ of execution for eviction following a non-judicial foreclosure, and the sheriffs office served the Kinney family in September 2020. Thereafter, activists in support of the Kinney family occupied the house and denied the new owner access to the property. When the sheriff's department and Portland Police Department attempted to evict the activists in December 2020, the activists violently repelled law enforcement and established a three square block autonomous zone around the property. The creation of the autonomous zone impacted the entire neighborhood and not just the Kinney property. The activists defending the Kinney home were not local residents, but instead activists squatting on the Kinney property. The result was that the Kinneys neighbors, who did not ask to be part of the autonomous zone, were forced to become unwilling participants in the protest. Even though the City of Portland was able to negotiate an end to the autonomous zone, the activists still occupy the property and the city has taken no further action to evict them. Thus, the new owner, who has a court-issued eviction order, is unable to gain access to its property due to the governments refusal to utilize its civil authority to enforce the eviction order.Even though local governments were eventually able to regain relative control of these autonomous zones, a lasting impact remains. Emboldened by the lack of repercussions for defying civil authority, the establishment of autonomous zones is now seen as a viable protest tool. Moreover, in the case of the Red House on Mississippi, the local government is now unwilling to enforce court orders to forcibly evict unlawful squatters out of fear of creating unrest, thereby denying the holder of legal title to the property and its rights to quietly enjoy the property. In light of this, lienholders need to be aware of their options to mitigate the risk of losing a collateral asset if it becomes part of an autonomous zone. This article discusses considerations lenders should take into account if they are contemplating targeted lending policies to mitigate the risk that their collateral assets will be encompassed within an autonomous zone. Additionally, we discuss the recourse lienholders have if their rights are damaged due to the existence of an autonomous zone that results in the loss of a delinquent collateral asset.Underwriting Risk Mitigation PoliciesSome areas of the country are more susceptible to the establishment of autonomous zones than others. Lenders may be considering employing risk mitigating policies directed at areas deemed more susceptible to autonomous zone control in order to prevent the loss of their collateral assets. Possible risk mitigation policies may include:

While a lender may want to adopt these risk mitigating policies, careful consideration of federal and state law must be made before any such policy is implemented.While state consumer credit protection laws compliment the federal Consumer Credit Protection Act, the state law may be more stringent than the federal statute. Therefore, the lender is required to not only conduct an examination of the proposed policy against the federal Consumer Credit Protection Act, but also against the state consumer credit protection laws in each state in which the lender intends to implement the policy. Failure to examine the proposed risk mitigation policy against applicable consumer credit protection laws may result in costly litigation in the future. If the risk mitigation policy is permissible pursuant to federal and applicable state consumer credit protection statutes, then the lender must also ensure that the policy is not discriminatory against a protected class. Under the Fair Housing Act (FHA), implemented through 24 C.F.R. 100, lenders cannot disparately treat individuals based on their race, color, religion, sex, handicap, familial status, or national origin. 24 C.F.R. 100.5(a). Meanwhile, under the Equal Credit Opportunity Act (ECOA), implemented through 12 C.F.R. 202, lenders cannot disparately treat individuals due to race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); to the fact that all or part of the applicants income derives from a public assistance program; or to the fact that the applicant has in good faith exercised any right under the Consumer Credit Protection Act. 12C.F.R. 202.1(b). While the above referenced risk mitigation policies are neutral in nature insofar as they are directed at localities where state and local governments have historically ceded civil authority to protestors and are not directed at a protected class, lenders must be careful that these policies do not create a disparate impact on members of a protected class. If a lending policy has a disparate impact on a protected class, then it is impermissible, and may result in a discrimination claim, or worse a class action lawsuit, against the lender. Courts have held that [t]o establish a disparate impact claim, a plaintiff must show an outwardly neutral policy or practice that has a significant adverse or disproportionate impact on members of a protected group. Taylor v. Accredited Home Lenders, Inc., 580 F. Supp. 2d 1062, 1068 (S.D. Cal. 2008) (analyzing disparate impact under both the FHA and ECOA). Additionally, [t]o establish a prima facie case under a[n ECOA] disparate impact theory, a plaintiff must identify a specific policy or practice which the defendant has used to discriminate and must also demonstrate with statistical evidence that the practice or policy has an adverse effect on the protected group. Powell v. Am. Gen. Fin., Inc., 310 F. Supp. 2d 481, 487 (N.D.N.Y. 2004). Moreover, an analysis of a policys disparate impact is critical because it is anticipated that the incoming Biden administration will increase disparate impact enforcement. Therefore, lenders considering instituting targeted policies to mitigate the risk of the loss of collateral assets as the result of them potentially becoming part of an autonomous zone must conduct a careful disparate impact analysis before implementing the policies.Below are our recommendations to lenders who want to be proactive to protect their collateral assets from loss as a result of becoming part of an autonomous zone:

Thus, lenders should proceed with caution when considering implementing policies targeting areas where collateral assets may be at heightened risk of being annexed into an autonomous zone.Post-Autonomous Zone Recourse for Delinquent Collateral AssetsIf a lienholder finds that its delinquent collateral asset is now part of an autonomous zone, or if its collateral asset becomes delinquent as the result of its inclusion in an autonomous zone, all is not lost. The lienholder has recourse against the governmental entities that permitted the establishment of the autonomous zone, including a Fifth Amendment takings claim and/or an inverse condemnation claim under state law. Which claims are available to the lienholder is dependent on the status of the foreclosure proceeding, and the jurisdiction where the claims are filed.Government inaction or encouragement of autonomous zones frustrates the rights of those who have interests in property that becomes ensnared in the autonomous zone. This frustration of rights can give rise to a viable takings claim against the governmental entity that is impinging on the property owner's rights. The Takings Clause of the Fifth Amendment of the United States Constitution provides, nor shall private property be taken for public use, without just compensation. Under the Fifth Amendment, property owners may bring a takings claim when government action frustrates their use, enjoyment, and rights associated with the property, without providing just compensation. If the government is found to have engaged in an improper governmental taking by allowing the establishment of an autonomous zone, then the individuals and entities whose property rights were infringed upon are entitled to just compensation.Recent legal precedent indicates that a lienholder can bring a Fifth Amendment takings claim at any point during the foreclosure process if the government infringes on its interest in a delinquent collateral asset by allowing the formation of an autonomous zone. In HMC Assets, LLC v. City of Deltona, 2018 WL 647452 (M.D. Fla. Jan. 31, 2018), the U.S. District Court for the Middle District of Florida held that a mortgagee could proceed with its Fifth Amendment takings claim and its procedural due process claim. In HMC Assets, the mortgagee foreclosed on a parcel of real estate, and before a final judgment of foreclosure was obtained, the city demolished the building on the property without notice of the demolition or ordinance violations and fines leading to the demolition. As a result of the destruction of the structure by the city, the court held that the mortgagee was entitled to assert a Fifth Amendment takings claim against the city due to the resulting diminution in the value of the collateral property. The court reasoned that the United States Supreme Court has held that taking of a mortgagees rights without compensation can violate the Takings Clause. In addition, [u]nder federal law, a mortgagee possesses a legally protected property interest in the premises for purposes of the Fifth Amendment. Thus, HMC Assets suggests that mortgagees likely have standing to bring a Fifth Amendment takings claim and procedural due process claims against the government if the establishment of an autonomous zone infringes on a lienholder's interest in a delinquent collateral asset.There is precedent now available regarding the viability of a Fifth Amendment takings claim against the government related to the establishment of an autonomous zone. In Hunters Capital LLC, et al. v. City of Seattle, No. 2:20-cv-00983 (W.D. Wash. June 24, 2020), the plaintiffs, including residents, tenants, property owners, and small businesses in Seattles Capitol Hill neighborhood that have been harmed by CHOP, brought Fifth Amendment takings and Fourteenth Amendment due process claims under 42 U.S.C. 1983 against the City of Seattle related to the city's alleged inaction and encouragement of the Capitol Hill Autonomous Zone. The city attempted to have these claims dismissed on the basis that (a) the partial and temporary loss of property did not constitute a taking; (b) the plaintiffs failed to show direct harm caused by the city; (c) the due process clause did not require the city to exercise discretion to prevent private actors from harming other people; and (d) the city did not directly place plaintiffs in danger. However, the court sided with the plaintiffs and denied the citys motion to dismiss. The court held that Plaintiffs plausibly assert that the Citys endorsement of, and the provision of material support to, CHOP set in motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of protected property interests . . . These allegations support the claim that the Citys conduct was causally related to [the] private misconduct and it was sufficiently direct and substantial to require compensation under the Fifth Amendment. Hunters Capital is still pending and the final resolution is unknown. However, the holding Hunters Capital, together with the holding in HMC Assets, suggest that lienholders have a viable Fifth Amendment takings claim against the government if it can be shown that the lienholder was deprived of a protected property interest as the result of the governments endorsement and material support of the establishment of an autonomous zone.In addition to a Fifth Amendment takings claim, a lienholder also can bring an inverse condemnation claim under state law if the government infringes on the lienholders property rights once it has legal possession of the delinquent property. Like a Fifth Amendment takings claim, those with sufficient property interests can file a state law inverse condemnation claim when the government takes their property without providing just compensation. Pursuant to the holding in HMC Assets, wherein the court held that under Florida law, a mortgagee such as HMC lacks standing to bring an inverse condemnation claim, lienholders likely will lack standing to bring a state law inverse condemnation claim before receiving a foreclosure order. Jurisdictions may vary on this issue depending on each jurisdictions interpretation of the scope of interests that grant standing to bring an inverse condemnation claim. However, once that order is received, and the lienholder has legal title to the property, then it can certainly bring this claim. Moreover, in relation to the Red House on Mississippi, the owner of the property is entitled to bring a Fifth Amendment takings claim and/or an inverse condemnation claim against the City of Portland.An aggrieved lienholder who has its interest in a collateral asset infringed upon by the government due to the establishment of an autonomous zone can bring its Fifth Amendment takings and due process claims directly in federal court. This would allow the lienholder to circumvent local state courts that may be less sympathetic to the lienholder's claims. In 2019, the Supreme Court of the United States held in Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 204 L. Ed. 2d 558 (2019), that a property owner may immediately bring a Fifth Amendment takings claim under 42 U.S.C. 1983 to federal court once the property has been taken without just compensation. Knick overruled earlier precedent that required property owners to proceed through state court first. Specifically, [w]e now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. Additionally, [t]he availability of any particular compensation remedy, such as an inverse condemnation claim under state law, cannot infringe or restrict the property owners federal constitutional claim. Thus, Knick allows circumvention of the home cooking of state courts, which is beneficial for lienholders. Federal supplemental jurisdiction allows the lienholder to also bring any viable state court claims, including an inverse condemnation claim, in federal court together with the lienholder's federal constitutional claims. This allows the lienholder to avoid the possible biases held by local state court judges, and provides for a hopefully more objective evaluation of the lienholder's claims. ConclusionThe birth of autonomous zones has led to uncertainty regarding the protection of a lienholder's collateral assets, and raises new considerations that lienholders never had to consider in the past. Lienholders wishing to implement targeted risk mitigation policies for areas at heightened risk of autonomous zone control should proceed with caution prior to implementing such policies and should follow the steps outline above. The good news is that recent case law on this new issue suggests that a lienholder likely has a viable takings claim against the government, which can go directly to federal court, if municipal inaction and encouragement of autonomous zones frustrates the lienholders interests in a delinquent collateral asset.

Read the rest here:
Mitigating the Risk of Loss of a Delinquent Collateral Asset in the Era of Autonomous Zones - JD Supra

REGARDING my Jan. 11, 2021 editorial titled Pence could have rejected the contested electoral votes, tarklejr audaciously quipped, Mr. Pangelinan, once again your ignorance in all matters govern-mental (both Federal and local) is glaringly blatant for all to see. Long ago I suggested that he should be hired as a dishwasher at the Imperial Pacific International casino and resort because that is the only job that at most he is qualified for, but then again maybe he is not. Maybe he should be hired as a trash collector, because everything he says is all trash and he should pick up every trash he says.

In my last article to this paper, I said that Vice President of the United States Mike Pence, as the President of the Senate, presiding over the January 6, 2021 joint session of Congress under the Twelfth Amendment to the U.S Constitution, elected not, which was perfectly within his discretion as the presiding officer, to exercise the powers he had, which I said every parliamentarian knows (seems tarklejr does not know.

He said Mike Pence was prevented from doing that because: Federal law and the Constitution PROHIBITED Pence from discarding, changing, amending or taking ANY action over Electoral College ballots (votes) other than simply COUNTING them. In reading the Twelfth Amendment there is NOTHING there that prohibits the President of the Senate from doing otherwise from what the dingbat said. In fact I said, that even a dumb parliamentarian knows that the chair or the presiding officer calls the shots if anything is called into question, over something that is not written anywhere whether it be in the federal Constitution, law or procedural rule. And, there is even no federal law that specifically prohibits Pence from exercising the powers I above mentioned 3 U.S.C. 15 basically paraphrased the relevant Twelfth Amendment provision. And, actually Title 3, Section 15 of the United States Code is the federal law that Pence was acting on, which in his discretion he was always free to choose what to act on.

Then tarklejr went on to say that U.S. House of Representatives Speaker Nancy Pelosi, and not the Secretary of State Mike Pompeo, comes next in line to act as the acting president. What Nancy Pelosi was pushing was that Vice President Mike Pence should invoke the Twenty-Fifth Amendment to the U.S. Constitution, not the Twentieth Amendment. The Twentieth Amendment, however, says something differently that Pelosi and Senate majority leader Chuck Schumer would not want to do, resign from their post, and even from their respective legislative house to become acting president of the United States the amendment authorizes Congress under Section 3 and 4 to enact legislation dealing with succession to the presidency. In other words, under 3 U.S.C. 19, implementing the Twentieth Amendment, if there should be a vacancy in the presidency the House Speaker succeeds, but must resign the Speakership and from the House of Representatives likewise with the Senate president pro tempore (Senate Majority Leader). It is extremely unlikely that both relinquish their powerful position in Congress, so next comes the Secretary of State, Mike Pompeo, under 3 U.S.C. 19(d)(1) and after him the Treasury Secretary, etc. this is laid in the order that the offices were first established by Congress when it was organizing the federal government early on in the eighteenth century.

But in the final analysis, however, this is all academic because the Twentieth Amendment comes into play only when there is a vacancy in the offices of the president and the vice president, which is not the case here at this time. Trump, however, might invoke the Twenty-Fifth Amendment, without resigning, telling both houses of Congress that he is incapacitated to allow Pence (Trump can do this) to act as president and then Pence in turn, as acting president, pardons Trump from any and all wrongdoing which would really rattle the Democrats in the House and Senate of the U.S. Congress that would eventually dispense for the need to impeach Donald J. Trump! Trump doing this, without resigning, removes himself from powers of the presidency while remaining the president of the United States until his term ends on January 20, 2021. Nancy Pelosi and Chuck Schumer are not too smart to outwit Trumps supporters. When this happens, Trump telling Congress that he is incapacitated and Pence taking over under the Twenty-Fifth Amendment would drive CRAZY Nancy Pelosi, Chuck Schumer and the entire Democrats in both houses of Congress Washington, D.C. loony asylum will be filled by them.

I challenge traklejr anytime on any field or subject, even in his field of so-called expertise. Call me tarklejr if you want to come up to the challenge, through Marianas Varietythey have my number. Or, write a column or letter or opinion to the editor and duke it out here. I am a local and I know the local laws and history and U.S. laws and history. Ask attorney Janet H. King of the King Law firm how ignorant I am on federal and local laws.

The writer is a resident of Kagman, Saipan.

Follow this link:
OPINION | Trump might invoke the 25th Amendment without resigning - Marianas Variety

In his inaugural address, President-elect Joe Biden could announce that he is pardoning Donald Trump. It would raise a furor on the Left. But it would also allow Biden to declare that he is following through on his pledge to unite America.

Former FBI Director James Comey, who was fired by Trump, is supporting the idea. In an interview on BBC Newsnight, Comey stated, he should at least consider it. Donald Trump, hes not a genius, but he might figure out that if he accepts a pardon, thats anadmission of guilt, the United States Supreme Court has said, so I dont know that he would accept a pardon. Comey added that it would serve as part of healing the country and getting us to a place where we can focus on things that are going to matter over the next four years.

Biden would be able to handle the blowback that he would get from an enraged Democratic base. Given the gravity of the crises that he facesa slowing economy, a spreading pandemic, and a mounting loss of American international credibilityBiden enters office in a commanding position within his own party. A pardon, as Gerald Ford stressed, does not imply innocence. It implies acceptance of guilt.

Its also the case that Trump would continue to face a welter of potential criminal charges at the state level that a federal pardon would not cover (though a federal pardon would cover Washington, DC). The Southern District of New York appears to be avidly pursuing him for perpetrating financial crimes, including tax fraud and money-laundering. Now that William P. Barr has resigned, federal prosecutors are moving quickly to arraign Trump. Small wonder that Trump himself is apparently consumed with worries about what looms ahead once he exits office.

Still, Trump himself might seek to act preemptively by pardoning himself and his children. A self-pardon, however, would be a dicey move indeed as it could simply ratify his guilt and be overturned by the Supreme Court. The notion that a president can pardon himselfand essentially declare himself above the lawhas never been tested. Its not a test that Trump would want to flunk. Yale legal scholar William N. Eskridge notes, The original meaning of granting a pardon assumes someone granting the pardon who is distinct from the person receiving it. So does the original purpose of a pardon, namely, forgiveness bestowed by an authority on a rule-breaker. Though a priest may pardon sinners, he may not absolve himself. A former Justice Department official says, It almost certainly wouldnt work. It would make matters worse. It would be a red flag for the Justice Department.

A further wrinkle is that the Constitution impedes the ability of a president to issue pardons if he has been impeached. Article II, Section, Clause 1 says that the president can issue pardons except in Cases of Impeachment. But in his capacity as president, Trump, who has never been overly concerned about constitutional niceties, might seek to ignore this provision. It would not impinge upon his ability to pardon his children or advisers such as Rudy Giuliani. But pardoning his children would mean that they would forfeit their Fifth Amendment protections before a Grand Jury. They could be compelled to testify. By contrast, Giuliani would presumably have protections under the attorney-client privilege.

The most likely course is that Biden will depute any investigation of Trumps conduct on January 6 to his Attorney General Merrick Garland. Garland would probably conduct a lengthy investigation of Trump before deciding that a federal prosecution of Trump would curtail the freedom of speech of future presidents. But the safest path for Trump would be if Biden pardoned him. Trump would receive direct benefits from a pardon, while Biden could adopt a Churchillian stance. In victory, magnanimity; and in peace, good will.

Jacob Heilbrunn is editor of The National Interest.

Image: Reuters.

Read more:
Will Joe Biden Issue a Pardon to Donald Trump? - The National Interest