Fair Housing / Lending News

St. Paul Withdraws From US Supreme Court Case Potentially Pivotal To Fair Housing Actions

2012-02-13T21:08:00.002-06:00

Last November, we reported on Gallagher v. Magner, 619 F.3d 823, 829 (8th Cir. 2010), and its potentially lethal effect on a cornerstone of Fair Housing actions: disparate impact and the application of the McDonnell-Douglas “burden-shifting” analysis.

However, on Friday, February 10, 2012, the parties withdrew the case from the US Supreme Court just a few weeks before the scheduled argument of February 29. The US Supreme Court granted the withdrawal.

The parties in the case were the City of St. Paul, Minnesota (namely, the Department of Neighborhood Housing and Property Improvement [DNHPI]), and property owners who allege that their homes were targeted by housing code enforcement personnel and their draconian treatment of so-called violations of the housing code. The Plaintiffs brought suit against the City of St. Paul and the DNHPI alleging that the city’s enforcement of its housing code had a disparate impact on minority home and property owners, “whose customers were mainly individuals or families with low incomes, with a large share of them — perhaps 60 to 70 percent — African-American tenants.”

As a cause of action, disparate impact and the McDonnell-Douglas “burden shifting” analysis were indispensible tools in the fight against housing discrimination. During the infancy of the Fair Housing Act, (passed in 1968) Arlington Heights v. Metropolitan Housing Development Corporation decided that the four part “burden shifting” test, first used in McDonnell-Douglas Corp. v. Green and Texas Dept. of Community Affairs v. Burdine, both cases dealing with discrimination in the workplace, could be applied to housing discrimination cases. In the housing context, the Arlington Heights disparate impact claim turned on four factors: 1) A showing of discriminatory effect/impact, 2) Some showing of discriminatory intent, 3) The defendant’s justification, and 4) The relief requested by the plaintiff.

However, the court in Arlington Heights ruled that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact … [such] impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Arlington Heights, citing Washington v. Davis, 426 U.S. 229, 242. “A racially discriminatory intent, as evidenced by such factors as disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decision makers, must be shown.”

Proving this discriminatory intent was what made disparate impact cases an invaluable weapon in the fight against housing discrimination. Arlington Heights held that proving discriminatory intent turned on three factors: 1) the impact of a discriminatory law or action by state authorities, 2) if the impact of such law or action is not determinative, other factors, such as legislative or administrative history, and 3) the shifting of the burden of proof to the state to prove it would have adopted the law or regulation at issue without discriminatory motives.

Gallagher v. Magner turned on whether these types of claims could still be brought under the Fair Housing Act. While some believe that such claims have serious issues pertaining to equal protection, the consensus in the fair housing community was that the court would have confirmed that disparate impact claim was a valid theory, but were not sure as to the what test the court would have chosen. Disparate impact continues to live to fight housing discrimination another day.

Legislators Pass Bills to Expedite Short Sale Process

2012-01-25T17:40:00.003-06:00

On January 13, Illinois Senate Bill 1259 was signed by Governor Pat Quinn, requiring banks and lending institutions to respond to a short sale offer by a homeowner within 90 days. The bill also gives courts the authority to hold banks accountable to the 90 day response provision.

Previously, the court had no jurisdiction over banks, allowing them unprecedented control over the foreclosure process. "Families are not losing their homes to foreclosure because they are dead beats refusing to pay their mortgages," Illinois State Senator Silverstein said on a news release published on his website. "They are people who are struggling to get through the worst economic downturn since the Great Depression. Unfortunately, we are seeing banks stalling the process of a short sale in order to push through foreclosure proceedings, giving families limited options to get out of their mortgage debt."

In 2010, the number of new short sales late that year had increased nearly 83 percent compared to a year earlier. The Chicago Tribune reports that “as of last October, it was taking lenders an average of 674 days to process a foreclosure, according to Lender Processing Services, a Jacksonville, Fla., mortgage technology firm. That's more than 22 months, or almost two years from the time the process starts to when the property is actually repossessed. And lenders don't even start the process until an average of 391 days after last receiving a payment.”

With the Mortgage Forgiveness Debt Relief Act of 2007 set to expire in January 2013 (making it so a homeowners’ unpaid debt settled with a lender through a short sale transaction would be classified as income for tax purposes), the rising tide of the recession would leave some homeowners struggling for air. "Many individuals trying to get out of foreclosure present a short sale offer to the bank and the bank sits on the request causing hardship for the home owner," Senator Silverstein said. "Not knowing whether the bank will accept the offer causes distress and it is only proper for the bank to respond. This puts a duty on the bank to respond."

The Illinois Legislature passed Senate Bill 3739 last August, sponsored by State Senator Tony Munoz. SB 3739 codified as 735 ILCS 5/15 1502.5(C). The Bill extends the “30-30-30 Program” for three more years. This program affords homeowners who have been delinquent in their loans a little more time before they get foreclosed upon. Senate Bill 3739 is also known as the “Save Our Neighborhoods Act of 2010.”

Under this program, during the first 30 days a home loan is delinquent, no foreclosure proceedings may be initiated. After a loan is 30 days past due, the loan servicer is required to give notice to a borrower that he or she has 30 days to seek approved credit counseling before legal action may be taken. A borrower is then given another 30 day grace period to develop a sustainable plan to pay their loan on time, but only if he or she seeks counseling services within the allotted timeframe.

Together, these two acts seek to alleviate the pressure placed on homeowners during the worst financial crises this nation has seen since the Great Depression. "During these difficult economic times, we need to do everything we can to help people who have had to miss a mortgage payment stay in their homes," said Senator Munoz. "This legislation will provide help and services to keep people from going into foreclosure."

US Supreme Court To Hear Disparate Impact Claim

2011-11-21T23:34:00.004-06:00

On November 7, 2011, the US Supreme court granted certiorari in Gallagher v. Magner, 619 F.3d 823, 829 (8th Cir. 2010) cert. granted, 10-1032, 2011 WL 531692 (U.S. Nov. 7, 2011).

The case arose out of the Eighth Circuit when several owners and former owners of rental properties in St. Paul, Minnesota brought consolidated actions, challenging the City of St. Paul's enforcement of its housing code.

In 1993, the City enacted the Property Maintenance Code which “[e]stablishes minimum maintenance standards for all structures and premises for basic equipment and facilities for light, ventilation, heating and sanitation; for safety from fire; for crime prevention; for space, use and location; and for safe and sanitary maintenance of all structures and premises.”

To enforce the code, the City established the Department of Neighborhood Housing and Property Improvement (“DNHPI”) as an executive department responsible for administering and enforcing the Housing Code. DNHPI was empowered to inspect all one- and two-family dwellings and administer and enforce laws regulating maintenance of residential property. This sounds all and well; protect the safety of residents and promotes the general appearance of the city … Until Andy Dawkins, the Director of DNHPI instructed his property inspectors to conduct proactive “sweeps” to detect housing code violations.

Dawkins also instructed his inspectors to “code to the max”, by writing up every violation that the inspectors would see, in addition to complaints about violations brought to the DNHPI’s attention by neighbors and other residents of the City. A “user-friendly” reporting system was also set up to allow neighbors and residents of the city to file complaints.

One can only imagine the ensuing tsunami of strategically-placed "complaints" neighbors could volley at each other, but the DNHPI employed a specific variety of strategies for renter-occupied dwellings. These included orders to correct or abate conditions, condemnations, vacant-building registration, fees for excessive consumption of municipal services, tenant evictions, real-estate seizures, revocations of rental registrations, tenant-remedies actions, and even, court actions.

While the DNHPI may sound like the HOA from Hell, its effects were broad, and far reaching. The DNHPI’s tactics fell heavily on low-income, African-American tenants living in privately-owned housing. The Appellant-Plaintiffs included individuals who own or formerly owned rental properties in the City. These property owners allege that they have suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances, due to as many as ten to twenty-five code violations, which ran the gamut of unsavory living conditions, such as rodent infestations and “inadequate sanitary facilities.”

Specifically, the Appellant-Plaintiffs allege that the City enforced the Housing Code more aggressively with regard to their properties because they rented to a disproportionately high amount of racial minorities, particularly African-Americans.

The 8th Circuit affirmed the lower court’s decision, except for the dismissal of the Appellant-Plaintiff’s disparate impact claim under the Fair Housing Act. The court held that the Appellant-Plaintiffs had satisfied the first query of the McDonnell-Douglas “Burden Shifting Analysis”, by successfully proving a prima facie case which requires showing “that the objected-to action[s] result[ed] in ... a disparate impact upon protected classes compared to a relevant population.”

The Judge correctly held that this was shown by four things which he ruled were sufficient to advance a theory of disparate impact:

(a) The City experienced a shortage of affordable housing
(b) Racial minorities, especially African-Americans, made up a disproportionate percentage of lower-income households in the City that rely on low-income housing.
(c) The City's aggressive Housing Code enforcement practices increased costs for property owners that rent to low-income tenants.
(d) The increased burden on rental-property owners from aggressive code enforcement resulted in less affordable housing in the City.
Gallagher v. Magner, 619 F.3d 823, 835 (8th Cir. 2010).

Thus, the court held that “given the existing shortage of affordable housing in the City, it is reasonable to infer that the overall amount of affordable housing decreased as a result. And taking into account the demographic evidence in the record, it is reasonable to infer racial minorities, particularly African-Americans, were disproportionately affected by these events.” Id.

In contrast, the City argued that “[the] Appellants must do more than show that the Housing Code increases the cost of low-income housing and that African-Americans tend to have lower incomes.” Id. at 836. The court, however, held that in viewing the evidence in the light most favorable to the moving party, “the evidence demonstrates that there is a shortage of affordable housing and that the City's aggressive code enforcement exacerbated that shortage.” Id.

Turning to the second query of the McDonnell-Douglas test, the court held that “the City has shown that enforcement of the Housing Code promotes the objectives of providing minimum property maintenance standards, keeping the City clean and housing habitable, and making the City's neighborhoods safe and livable.” Id. at 37.
The game goes into overtime, with the burden once again shifting to the plaintiffs to “offer a viable alternative that satisfies the [City's] legitimate policy objectives while reducing the ... discriminatory impact” of the City's code enforcement practices.” Id.

To do so, the Plaintiffs used the City's former program for Housing Code enforcement called “Problem Properties 2000” (“PP2000”). The program’s lists of goals and tactics of included: “identification of properties with a history of unresolved or repeat Housing Code violations, meeting with the owners individually, encouraging the owners to take a more business-like approach to managing their properties, keeping closer tabs on changes of ownership, and using consistent inspectors at each property.” Id. at 838.

Appellant-Plaintiffs contend that PP2000 embodied a flexible and cooperative approach to code enforcement, which achieved the goals of code enforcement while maintaining a consistent supply of affordable housing, something that, the Appellant-Plaintiffs argue, the DNHPI failed to do.

The City argued that this approach would not “reduce the alleged impact on protected class tenants,” and the District Court agreed with them, reasoning that “because participating landlords were not excused from compliance with the Housing Code, they would still incur the same costs of compliance with the housing code, leaving any alleged discriminatory effect on African-Americans unchanged.” Id.

However, the Court disagreed, stating that the Plaintiff-Appellants “offer[ed] evidence that the challenged enforcement practices burdened rental-property owners and thereby reduced affordable housing options. There is also evidence that PP2000 generated a cooperative relationship with property owners, achieved greater code compliance, and resulted in less financial burdens on rental property owners. It is reasonable to infer from these facts, viewed most favorably to Appellants, that PP2000 would significantly reduce the impact on protected class members.” Id.

Thus, the Court of Appeals overruled the District Court’s finding on the issue of disparate impact. The US Supreme Court granted certiorari, and is set to hear the case later this Spring, in 2012. The potential to change the landscape of Fair Housing litigation in this case is huge. The Disparate Impact test has been an invaluable tool in the fight against facially-neutral laws that, as applied, present an onerous burden on a protected class of people. What the Supreme Court will do in this case remains unclear, and the court may or may not strike down the McDonnell-Douglas "Burden Shifting" analysis, as they struck down the Trafficante case earlier this year.

Civil Rights Legend Passes Away Into History

2011-10-06T15:17:00.003-05:00

Derrick Bell, distinguished Civil Rights advocate and father of Critical Race Theory, died today at the age of 80, the New York Times reports.

Bell, the first African-American law professor at Harvard, and the first dean of a non-historically black law school, led an interesting life, influencing our own President Barack Obama, who compared him to bus boycott heroine Rosa Parks. He left Harvard Law School when they refused to change their hiring practices to allow minorities a chance to teach at the famous Ivy League school.

Perhaps more famous for rejecting high positions in education and government than accepting them, Bell once resigned from working at the Civil Rights Division of the Justice Department in his 20s, after his superiors told him to give up his membership in the N.A.A.C.P., believing it posed a conflict of interest.

Professor Bell’s core beliefs included what he called “the interest convergence dilemma” — the idea that whites would not support efforts to improve the position of blacks unless it was in their interest. Asked how the status of blacks could be improved, he said he generally supported civil rights litigation, but cautioned that even favorable rulings would probably yield disappointing results and that it was best to be prepared for that.

Ever the pragmatist, Professor Bell's teaching style was unique, in that he would forgo dry, boring, legal analyses and employ an allegorical method of teaching. Short stories, fictional characters, and other literary devices marked a successful foray into story writing, an example of such was the short story, "Space Traders", which appeared in his 1992 book, “Faces at the Bottom of the Well: The Permanence of Racism.” In the story, as Professor Bell later described it, creatures from another planet offer the United States “enough gold to retire the national debt, a magic chemical that will cleanse America’s polluted skies and waters, and a limitless source of safe energy to replace our dwindling reserves.” In exchange, the creatures ask for only one thing: America’s black population, which would be sent to outer space. The white population accepts the offer by an overwhelming margin. (In 1994 the story was adapted as one of three segments in a television movie titled “Cosmic Slop.”)

This teaching style, as revolutionary as it was, did have several critics, one of which was Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, who “label[ed] critical race theorists and postmodernists the ‘lunatic core’ of ‘radical legal egalitarianism.’” He writes,

"What is most arresting about critical race theory is that...it turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories — fictional, science-fictional, quasi-fictional, autobiographical, anecdotal — designed to expose the pervasive and debilitating racism of America today. By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites."

Others lauded Bell's Critical Race Theory, such as Judge Alex Kozinski, in the United States Court of Appeals for the Ninth Circuit, who writes that Critical Race Theorists have constructed a philosophy which makes a valid exchange of ideas between the various disciplines unattainable.

"The radical multiculturalists' views raise insuperable barriers to mutual understanding. Consider the Space Traders story. How does one have a meaningful dialogue with Derrick Bell? Because his thesis is utterly untestable, one quickly reaches a dead end after either accepting or rejecting his assertion that white Americans would cheerfully sell all blacks to the aliens. The story is also a poke in the eye of American Jews, particularly those who risked life and limb by actively participating in the civil rights protests of the 1960s. Bell clearly implies that this was done out of tawdry self-interest. Perhaps most galling is Bell's insensitivity in making the symbol of Jewish hypocrisy the little girl who perished in the Holocaust — as close to a saint as Jews have. A Jewish professor who invoked the name of Rosa Parks so derisively would be bitterly condemned — and rightly so."

In addition to his wife, he is survived by three sons from his first marriage, Derrick A. Bell III and Douglas Dubois Bell, both of Pittsburgh, and Carter Robeson Bell of New York; two sisters, Janet Bell of Pittsburgh and Constance Bell of Akron, Ohio; and a brother, Charles, of New York.

Hard Times in the Big Easy for New Orleans Landlord

2011-09-14T17:06:00.003-05:00

The ongoing effort to rebuild New Orleans after Hurricane Katrina, some six years ago, continues, but all has not been well on the path to recovery.

A few months ago, we posted a story on “The Road Home”, a program which would put thousands of people in newly-constructed homes, but the program was not without its’ faults. This time, however, residents are fighting back against housing discrimination.

The Times-Picayune published news in the beginning of this month stating that a group of New Orleans landlords agreed to pay around $70,000 in damages and penalties to settle various suits against them by prospective tenants. Read the story here.

These lawsuits alleged that the landlords denied housing to African-Americans at an apartment building which makes it ripe for a Fair Housing Act claim. The lawsuit alleges that Betty Bouchon, the building manager, failed to return calls from African-American testers while returning phone calls from white testers, made statements to white testers indicating that she would not rent to black people, and falsely told an African-American tester than an apartment was not available for rent when in fact it was available. One can imagine that the sting was similar to this commercial. See also Stanford professor John Baugh's study on voice recognition discrimination.

These “tests”, as they are called, have proved instrumental in the fight against housing discrimination, ever since the Fair Housing Act was passed in the late 60’s. Tests involve “control” groups, usually Caucasian men and women, and “experimental” groups, usually consisting of men and women of varying ethnic and racial heritage. The “experimental” groups usually walk in, or otherwise inquire about a property for rent, and the landlord’s response is noted. If the racial or ethnically diverse individual is turned down, a Caucasian person is sent in.

"In these challenging economic times, it is more important than ever that all Americans be able to rent or buy housing they can afford, and not face discrimination because of the color of their skin," Thomas E. Perez, assistant attorney general for civil rights, said in a statement.

Although the settlement is awaiting approval from a federal circuit court judge in Louisiana, the Defendants, Betty Bouchon, the Bouchon Limited Family Partnership and Sapphire Corp., may also benefit from this settlement, as the consequences may be financially grave for some defendants who lose fair housing cases.

Under the terms of the settlement, the defendants will pay $50,000 to the Greater New Orleans Fair Housing Action Center and $20,000 in civil penalties to the United States. The settlement also requires the defendants to adopt non-discriminatory policies, keep detailed records of inquiries from prospective tenants and of rental transactions, and submit periodic reports over the four-year term of the settlement.

Plaintiff wins big in Fair Housing Derby

2011-08-21T03:50:00.002-05:00

The New Haven Reporter reported at the end of last month, that a federal judge ruled in favor of Valley Housing LP, Home Development and nonprofit housing developer HOME Inc. Friday in their 2006 lawsuit against the City of Derby, Connecticut, finding that city officials tried to thwart development of a “supportive housing” project for low-income residents with special needs.

The Plaintiffs “provide social services, in addition to affordable housing to allow people with mental and other disabilities to live successfully in the community.” Valley Housing is a limited partnership “created to develop and manage supportive housing for low income disabled people in the Naugatuck Valley of Connecticut.” The partnership combines the efforts of HOME (Housing Operations Management Enterprise), a nonprofit developer, whose mission is to “develop and manage safe, decent and affordable housing for low income people,” and Home Development, Inc., a nonprofit organization created for the “purpose of developing and maintaining supportive housing for low-income people.”

The properties in question involved three buildings zoned as multi-family properties. The Plaintiffs purchased these properties for the purpose of “providing supportive housing for the clients of the Birmingham Group Health Services, Inc. These properties were intended for “persons with mental disabilities, [persons with] a history of substance abuse, and/or HIV/AIDS, capable of independent living and productive community membership with Birmingham Group-provided support services.”
The plan was to relocate the current residents of the buildings, and renovate them to a “high standard.” The number of apartments would remain the same, but each unit would have a reduced number of bedrooms. This was required under CHFA (Connecticut Housing Finance Authority) standards, as “a predicate to the Agency’s commitment to finance the purchase of properties as affordable rental housing for persons with low incomes.”

The Plaintiffs took over two years in locating these properties. Specifically, they sought properties that would not require a zoning change or variance in order to quell neighborhood fears and suppress the cries of NIMBY among the opposition. HOME Inc., was to provide the development and management of the properties, and Valley Housing was contracted by Birmingham Group to be the social services provider for the intended tenants.

The Mayor of Derby at the time, Marc Garofalo, conducted an investigation of the development, once a resident of the area called in to his office to voice their opinion, even going so far as to make a personal appearance at the CHFA to review the Plaintiffs’ application for CHFA funding. His motives weren’t clear at the time, but they came out at trial: he opposed the mutual housing project, and planned on forestalling the development process by blocking its tax credit funding.

Garofalo’s position was that the Plaintiffs could not develop their properties as supportive housing without a process that allowed input from the City and the neighborhood and as a part of a comprehensive scheme for rehabilitating the neighborhood. This process would take upwards of 18 months, and approval was not guaranteed. He knew a similar project in another neighborhood of Derby had not received full financing before.

Garofalo even admitted in trial, that he thought “Derby should have a say in where that kind of housing gets placed.” Garofalo’s plan was orchestrated with the Chairman of the Zoning Board of Appeals, Samuel Rizzitelli. Also involved was David Kopjanski, Derby’s Zoning Enforcement Official and Building Official. These insiders’ insidious intentions were foiled at trial, however, when the court found their testimonies “riddled with inconsistencies, self-serving, and not credible.” Kopjanski denied the Plaintiff’s application for a CZC (Certificate of Zoning Compliance), and asked for the Plaintiffs to apply for a variance with the Zoning Board of Appeals. But, at trial, he admitted that the same Plaintiff’s application, in some instances, actually authorized, in and of itself, a variance. Garofalo also had other motives for his attempt to derail the supportive housing. The neighborhood in which the properties were to be developed expressed vehement opposition, citing “fears and concerns about the prospective occupants.”

The court, however, found that the City of Derby intentionally discriminated against the Plaintiffs under the Fair Housing Act, awarding the Plaintiffs (Valley Housing and Home Development, Inc.) $676,279.65 in compensatory damages. The damage calculation factored in increased construction costs, increased construction contingency, an additional land survey, loan interest, legal services, appraisals, and other administrative costs. HOME, Inc. also received an award for damages: $73,768.78. The amount included staff time, credit for management fees, and borrowing costs.

Defense Attorneys Go Home Hungry: Ohio Civil Rights Commission v. Mellon Ridge

2011-06-17T21:27:00.000-05:00

The Court of Common Pleas in the County of Warren, Ohio, recently denied defense attorneys’ motion for Attorney’s fees under Fed. R. Civ. P. 11 and R.C. 2323.51 and R.C. 2335.39, in the Ohio Civil Rights Commission v. Mellon Ridge (Case No. 05CV64506 The court denied the fees and said: “Mellon Ridge’s proof of the reasonable and necessary attorney’s fees is problematic in the extreme,” according to the court.

In what started out in the trial phase as a fair housing complaint, Rodney Jackson filed a complaint in the Ohio Civil Rights Commission against Mellon Ridge Residential Care Facility alleging that he had been discriminated against because of his race, and because of the Defendant’s failure to reasonably accommodate his disability. Mr. Jackson required the use of a wheelchair and the services of a service animal, namely, a dog, in order to function.

The court found that the Defendant’s rationale for rejecting Mr. Jackson’s residency was legitimate – Mellon Ridge required proof of vaccinations and health records from a veterinarian before any resident of the facility could be admitted. Thus the court found for the Defendants.

Defendant, Mellon Ridge filed a petition for fees in the amount of $86,668.12. So why didn’t they get it? The Defense even hired “a prominent and well-respected local attorney with many years of litigation experience” to review the billing records and testify at the fee evidentiary hearing. The attorney found that “the amount of fees claimed [were] reasonable and necessary.”

There were billing records, but Defense counsel “…made a calculated choice not to submit his billing records into evidence (in the evidentiary hearing).” Apparently copies of the billing records were made available to the Plaintiffs during discovery, but the Magistrate never saw them. In fact, when asked about the lack of detail in the accounting for attorney’s fees in the evidentiary hearing, Defense counsel stated “I don’t believe the statute requires that kind of explicit detail.”

The only thing even remotely resembling “an itemized list or other evidence of the legal services” required for attorney’s fees under R.C. 2323.51(B)(5) was a short table contained in the Defense’s time affidavit giving the names, the amount of time spent, the hourly rate, and the total amount of fees of each attorney who worked on the case. The court noted, however, that what was NOT included in the time affidavit was “a breakdown of how these hours were spent and what activities were performed.”

Defense counsel was obviously mistaken. The correct way attorney’s fees are calculated per the Lodestar method: the number of hours reasonably expended on a case, multiplied by reasonable attorney’s fees. However, per the Ohio statute, in order to recover attorney’s fees based on frivolous conduct, an itemized list or other evidence of legal services is required.

How could Defense counsel have missed that? The need for an itemized list of legal services being rendered is not mutually exclusive to civil, fair housing cases such as this. The Bankruptcy Code, 11 U.S.C.A. §330, states that “attorney fee applications must include itemized daily entries, with nature and purpose of particular entries noted, with actual time spent on each item, rather than minimum block of time, recorded separately, and abbreviations must be explained.”
The Illinois Appellate Court, Second District, held that “the court is not bound by the attorney's opinion as to what constitutes a reasonable fee and must inquire into all of the necessary factors. The time spent on a case is the factor of greatest importance. An attorney's general statement as to the time spent is an insufficient basis for a fee award and detailed time records are usually required. The attorney must itemize both the time expended and the work performed. In re Marriage of Pease, 106 Ill. App. 3d 617, 623, 435 N.E.2d 1361, 1367 (Ill. App. Ct. 1982).

Under Ohio’s R.C. 2323.51 (B)(5), “the party’s counsel of record may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of reasonable attorney’s fees, an itemized list or other evidence of the legal services rendered, the time expended in rendering the services and the attorney’s fees associated with those services.” (Emphasis added).
The problem with Defense’s request for attorney’s fees is that the court found the basis for the fees – that the Plaintiffs made a frivolous appeal, was that Plaintiff’s appeal was NOT found to be frivolous. The attorney’s fees expended in the appeal phase was therefore unrecoverable, but how could the Magistrate decide what amount to deduct from the fees when there wasn’t a detailed record outlining which of that $86,000 consisted of defending an appeal?

“Absent detailed billing records, any sum would be a mere shot in the dark – arbitrary and capricious,” the court concluded, refusing to make an award of reasonable and necessary attorney’s fees.

Defense counsel missed out on a slice of the Mellon for failure to follow the fee petition rules.

Proposed LGBT Protection by HUD

2011-03-01T12:37:00.003-06:00

The Department of Housing and Urban Development (“HUD”) has unveiled a series of proposed rule changes that would prohibit lenders from using sexual orientation or gender identity as a way of determining a borrower's eligibility.

The proposed rule changes will (a) define sexual orientation and gender identity, (b) prohibit inquiries regarding sexual orientation and gender identity, (c) prohibit sexual orientation and gender identity as grounds for decision making in Federal Housing Administration (“FHA”) programs, and (d) would clarify that all eligible families, regardless of marital status, sexual orientation, or gender identity, have the opportunity to participate in HUD programs, including the housing choice voucher program.

The proposed rule changes come in response to information gathered by HUD which suggests that gay, lesbian, bisexual, and transgender (“LGBT”) individuals and families are arbitrarily excluded from housing opportunities because of their sexual preferences and gender identities. The decision by HUD to seek to protect LGBT individuals and families is a controversial decision, but one which is supported by the findings of arbitrary discrimination. One of the primary goals of the Fair Housing Act (“the Act”) is to eliminate arbitrary and invidious discrimination in the area of housing, and HUDs attempt to protect LGBT individuals and families is well in line with the federal goals of the Act and the mission of HUD.

If you wish to review and comment on the proposed rule changes, you can do so at www.regulations.gov .

How To File A Federal Fair Housing Claim

2011-02-28T11:32:00.004-06:00

Housing discrimination based on your race, color, national origin, religion, sex, family status, and disability is illegal by federal law. If you believe that you have been discriminated against in the process of trying to rent or buy a home or apartment, you may file a fair housing complaint.

There are several ways to file a complaint.

You can file an immediate complaint with the Department of Housing and Urban Development (“HUD”), the federal agency which has jurisdiction over matters of fair housing and lending.

To file a complaint, you can call the HUD toll-free number, 1-800-669-9777.
Or you can file your complaint by filling out their online form [http://www.hud.gov/offices/fheo/online-complaint.cfm].

Or you can send a complaint by mail. The HUD website contains the HUD complaint form, and you may wish to accompany your complaint form with a letter. A letter to HUD should including the following information:

• Your name and address
• The name and address of the person your complaint is about
• The address of the house or apartment you were trying to rent or buy
• The date when this incident occurred
• A short description of what happened

The HUD complaint form may be accessed here [http://www.hud.gov/utilities/intercept.cfm?/offices/adm/hudclips/forms/files/903-1.pdf]. Fill it out, and mail it to the address:

Office of Fair Housing and Equal Opportunity
Department of Housing and Urban Development
Room 5204
451 Seventh St. SW
Washington, DC 20410-2000

Not all HUD housing complaints are handled by HUD. Certain states have equivalent housing agencies to which HUD may refer your complaint.

Treasure Island Plundered With 3.725 Million Dollar Settlement

2010-12-17T11:48:00.002-06:00

In a rare, multi-million dollar settlement, the Code Enforcement Board (CEB) of The City of Treasure Island, agreed to pay the sum of 3.7 million dollars to Gulf Coast Recovery, and its proprietor, Matthew Schwarz in a settlement agreement after several unsuccessful attempts at litigation.

A small city on Florida’s gulf coast, Treasure Island’s population of 7,500 doubles during the winter months; the warm climate and attractive coastal location a favorite of vacationers and “snowbirds” (a Floridian term for retirees from northern states). As a result, the City of Treasure Island’s zoning scheme has come up with unique ordinances to deal with the ebb and flow of its population throughout the year.

The City created a limit on the number of times a “single family or two family dwelling” can change occupancy during a twelve month period in certain areas zoned for single-family dwellings, in order to keep vacationers and snowbirds from disrupting “the sense of community of its permanent residents.”

Gulf Coast Recovery (“GCR”) is a company licensed by the Florida Department of Children and Families to provide outpatient rehabilitation services to recovering drug and alcohol abusers at its treatment facility located In the City of Treasure Island. However, the company’s license does not allow it to provide in-patient or residential treatment. In order to circumvent this limitation, GCR rents or owns property in which its clients stay during the rehabilitation process.

Conflict between GCR and Treasure Island arose when neighbors to one of these properties in which GCR patients stayed, complained about excessive noise and disturbances from GCR patients. In response, Treasure Island sent Schwarz a “Code Enforcement Detail”, observing that Schwarz had “opened up two rehab houses on the island.” Schwarz was then ordered to provide information such as the number of tenants living in the properties Schwarz and GCR owned, the amount of turnover, and the length of the leases.

After some heated disputes with the CEB, Schwarz was determined to have breached the city’s zoning ordinances. Schwarz, GCR, and several of GCR’s patients then sued Treasure Island in the US District Court for the Middle District of Florida, alleging that the city’s zoning code enforcement actions unlawfully discriminated against the residents of the halfway houses.

The case ultimately went to trial. The District Court found in favor of Treasure Island after a motion for summary judgment, stating that the apartments were not “dwellings” and that even if they were assumed to be dwellings, Schwarz and GCR failed to establish intentional discrimination.

On appeal, the 11th Circuit concluded that all the apartments were “dwellings” pursuant to the Fair Housing Act, and remanded the case back to district court to determine whether a fact issue existed as to whether living in the halfway houses was “necessary” to afford recovering substance abusers an “equal opportunity to use and enjoy them.” Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008).

On remand, Schwarz was successful. A jury verdict passed down in February 2010 held that Treasure Island’s attempt to close the halfway houses violated the fair housing act. After an unsuccessful motion for summary judgment (see Schwarz v. City of Treasure Island, 2010 WL 3747787 (M.D. Fla. Sept. 22, 2010)), Treasure Island decided to settle the case with Schwarz and GCR for more than $3 million dollars. Though Schwarz claimed losses in excess of $7 million dollars, Schwarz found the settlement to be a fair agreement. As part of the settlement, the city also agreed to allow GCR to occupant turnover rates of up to six times per year in a total of four buildings that were zoned for residential, single family dwellings.

The City commission reportedly found the settlement to be “in the best interests of the city”, with the mayor concluding that “everyone is glad [the case] is done with.” One of GCR’s clients was also slated to receive $36,000 as a result of the case as well, for “emotional turmoil” caused by Treasure Island’s code enforcement efforts.

Traffic on The Road Home: Delayed Due to Construction

2010-10-28T11:52:00.002-05:00

Some five years after Hurricane Katrina dissipated, its after effects continue to ring out in Louisiana. But the bell tolls louder for some, than others.

The Road Home (TRH) program was designed by former Louisiana Governor Kathleen Blanco, whose mission is “to provide compensation to Louisiana homeowners affected by Hurricanes Katrina or Rita for the damage to their homes.” Claiming themselves to be “the largest single housing recovery program in U.S. history”, The program’s objective is “to provide compensation to Louisiana homeowners affected by Hurricanes Katrina or Rita for the damage to their homes.”

TRH came about as a block grant program to assist in the recovery of the region ravaged by hurricane Katrina. These grants were placed in the State of Louisiana for designation. Approximately $11 billion was allocated for TRH, which was developed by the Louisiana Recovery Authority (LRA). The Department of Housing and Urban Development, or, HUD, also helped develop TRH. HUD is also the governmental entity that disburses funds to the LRA for use in The Road Home program.

Each beneficiary under TRH has a number of options to ease their transition back into New Orleans, one of which is the “Option 1” program, in which each beneficiary receives an award in the amount of either the value of their home before Katrina hit, or the cost of repairing their home, whichever is less. The amount granted would not total more than $150,000. Additional Compensation Grants (ACGs) were made available as supplemental awards for families whose incomes are at or below 80% of the median in their areas, but are still subject to the $150,000 cap.

Despite the laudable goals of the program, however, its administration, allegations of fraud, and race discrimination have left serious doubts about its effectiveness and impartiality.

Of particular concern is the way homes are valued. Families who had homes in economically depressed areas would receive significantly less money from TRH program compared to other families who had homes in more economically prosperous locales.

David Hammer of The Times-Picayune has been following the development of the TRH program. Read the stories here.

In the original case filed in the US District Court of Columbia, Greater New Orleans Fair Housing Action Center v. United States Department of Housing and Urban Development, 2010 U.S. Dist. Lexis 66583 (D.D.C. July 6, 2010), the plaintiffs, individual homeowners and the Greater New Orleans Fair Housing Action Center, alleged that the LRA’s use of pre-storm home values “has a discriminatory disparate impact on African Americans living in historically segregated communities.”

Specifically, the plaintiffs argued that African American homeowners were more likely than white homeowners to own homes with lower values. This makes them more likely to receive less than white homeowners under TRH, between the amount of the grant, and the cost of rebuilding.

As such, the plaintiffs sought an injunction requiring recalculation of TRH awards to homeowners in New Orleans using an alternate formula that does not have a disparate impact on African Americans.

Although the District Judge agreed that the calculation of awards under TRH did have a disparate impact, the court denied the injunction, holding that the court would be unable to “provide the ultimate relief plaintiffs seek”, citing the Eleventh Amendment’s prohibition on lawsuits against state governments without consent from the state, among other reasons.

However, the US Court of Appeals in D.C. reversed the decision, granting the plaintiffs the injunction they sought. The state of Louisiana has been barred from redistributing unused TRH funds for other purposes.

In an interview with David Hammer and The Times-Picayune, James Perry, president of the Greater New Orleans Fair Housing Action Center, said “The appellate court ruling means there is a strong possibility that Judge Kennedy will be able to direct the state to award additional money to people who have already received Road Home grants based on pre-storm value … We’re hopeful it will make clear that additional compensation should be based on cost of repairs, rather than on pre-storm value.”

The LRA, of course, denies any intention of discrimination.

Argument is set over the next few months, before the appellate court, per the State of Louisiana’s appeal over the initial decision.

The injunction has been loosened somewhat to allow for operation of the TRH program, due to a clarification from Judge Kennedy. “The state said 382 buyout grants -- so-called Option 2 and Option 3 grants, like Bailey's -- can move forward. So too can 784 supplemental payments for homeowners who have already received initial grants under Option 1”, according to Hammer.

However, there are still 85 initial Option 1 grants based on pre-storm value that must remain frozen while appeals of Kennedy's official ruling are pending.

Much like the FEMA debacle, it seems that the road to recovery for New Orleans is fraught with obstacles and potholes to overcome. While the courts have been relegated to repair the damaged process of home valuation, it seems that some on The Road Home, have to deal with more delays.

Can Landlords Discriminate Based on Arrest Records?

2010-10-15T17:15:00.001-05:00

Marie Claire Tran-Leung disagrees. According to Tran-Leung, “Landlords and local housing authorities should stop using arrest records to screen tenants.” She states that doing so does “more harm than good.”

Although it is illegal for landlords to discriminate based on race, color, religion, sex, national origin, disabilities, and other protected classes under the Federal Fair Housing Act, most states have also applied protection to other classes. For example, the State of Illinois prohibits discrimination based on ancestry, age, marital status, and sexual orientation. Discrimination against people with arrest records, however, is legal.

But should it be? Tran-Leung claims that discrimination based on arrest records “give[s] people a false sense of security against crime, and they deprive disproportionately more racial minorities of needed rental housing for nothing more than an unproven accusation.” Read the full story here.

Tran-Leung cites a recent decision by the Illinois Appellate Court, Landers v. Chi. Hous. Auth., 2010 Ill. App. LEXIS 1010 (Ill. App. Ct. 1st Dist. Sept. 20, 2010), supports for advocating a ban on discrimination based on arrest records.

Landers was a case about a man who had been arrested no more than 34 times while he was homeless. Placed on the Chicago Housing Authority’s (CHA) wait list for public housing in 1995, he finally got his turn in 2008. However, after thirteen years of waiting for a chance to live in public housing, he was turned down by the CHA because of his arrest record.

After undergoing an informal review (per CHA regulations), to dispute his arrest record, the CHA still denied him housing. The Illinois Appellate Court for the First District held that because his arrest record did not contain any convictions, or circumstances outlining his arrests, they did not meet the definition of “the requisite violent crimes or drug-related criminal activity necessary to constitute a criminal activity.”

The case itself doesn’t stand for the proposition that the CHA may not discriminate based on arrest records, rather, the 1st District Appellate Court held that arrest records which do not contain convictions or have any background information as to why the person was arrested, does not constitute “criminal activity.”

Examples of what constitutes “violent criminal activity” that can be the basis of turning someone down for housing are including, but not limited to, “homicide, murder, vandalism, burglary, armed robbery, theft, trafficking, manufacture, or use of illegal drugs …”

In this case, Landers was charged and arrested for numerous crimes related to being homeless. He also denied that he committed those offenses (instead, he attributed them to a twin brother). All but one charge for drinking in public resulted in conviction.

The court explicitly stated that they did not dispute the CHA’s ability to deny housing to an individual based on their convictions and substantiated arrests. However, in this case, the court held there was no evidence that Landers was a potential threat to the “health, safety, and welfare of the public housing community,” concluding that “the sheer number of petitioner’s arrests does not establish a history of criminal activity.”

While this case opens up some avenues of justice for those who have been arrested, but not convicted of certain crimes, the CHA is still able to discriminate based on past, substantiated convictions. This still leaves out a large number of people who have served time in correctional facilities.

Tran-Leung argues that rejection of housing to individuals with spotty arrest records unfairly denies people housing, and that “to prevent this outcome, HUD should bar housing authorities and private owners participating in HUD programs from using arrests to screen applicants.”

This, however, leaves some concerns about possible public safety concerns. So is there a better way? Perhaps, but for many with arrest records, this case leaves them out in the cold.

Race discrimination suspected in couple's delay to sell home

2010-08-23T00:14:00.003-05:00

George Willborn, popular comedian and radio personality, claims he was denied the purchase of a ahouse by a white couple, Daniel and Adrienne Sabbia, selling their chicago home because of his race.

On August 10, 2010, the U.S. Department of Housing and Urban Development announced that the couple along with their real estate agent Jeffrey Lowe will be charged with violating fair housing law. The the Willborns state the couple demonstrated "strange behaviour" during the house tour, and are accused of postponing negotiations although the Wilborns made a $1.7 million offer, the highest the sellers had received during the two years the home was on the market. Further, the Sabbias allegedly took the property off the market to avoid selling to the Wilborns. The real estate agent Jeffrey Lowe told government officials that the Sabbias did not want to sell to African Americans.

Wilborn filed the complaint in January, it was amended in March and July. The cases will be heard before an administrative judge unless the parties decided otherwise. Once learning of the complaint, the Sabbias offred to sell the property and all of its furnishings for $1.8 million. Punitive damages or equitable relief can be awarded if the judge finds the Wilborns were discriminated against.
http://www.afro.com/sections/arts_entertainment/story.htm?storyid=2212

July 19-25 News Round-Up

2010-08-10T01:04:00.008-05:00

Kagan’s questionable history protecting tenant’s rights:
Supreme Court candidate Elena Kagan’s position on housing discrimination is unclear to some; however, a closer look into her past opinions may provide some insight. In a case brought by tenants in Chico, California, Kagan stood in clear support of the landlord who refused to rent to a couple because they were unmarried and because it went against the landlord’s beliefs. The Supreme Court decided in favor of the tenants, but Kagan recommended that the Clinton Administration urge the Court to decide in favor of the landlord. Although Kagan has attempted to distance herself from such decisions, it begs the question whether or not this ideological position may resurface. Kagan’s past position in favor of religious freedom over the rights of tenants, who stand to suffer housing discrimination due to such individuals “beliefs”, is worrisome. This position leaves a dangerous opportunity for other types of discrimination such as race, sexual orientation, etc., which according to the same logic, could be considered permissible for landlords.
http://www.vcstar.com/news/2010/jul/22/does-kagan-get-it-on-housing-discrimination/

http://www.nytimes.com/2010/06/04/us/politics/04kagan.html?_r=1

Increase in enforcement efforts felt nationwide with new HUD policy:
A new policy called the Recovery Act was enacted shortly after President Obama took office which allocated almost $14 billion to HUD to enforce discrimination cases and demonstrates a new effort by the Department of Justice to increase its enforcement of fair housing practices. According to HUD spokesperson, in the past year, 44% of housing discrimination complaints involved issues around disability, with race discrimination cases at 33% of the total. The Milwaukee Fair Housing Council reports that disability cases represent roughly 50% of cases brought under the Fair Housing Act.
www.HUD.GOV/Recovery

http://www.jsonline.com/news/wisconsin/98984059.html

HUD reinforces support of ADA claims under FHA:
The Department of Justice has brought a case on behalf of a 52 year old disabled man who was a resident of an apartment complex where he was not given accomodations for his disability. The tenant was told not to park in a space closer to his door and when he requested a closer parking space it was denied. Soon after the tenant requested this closer parking space he slipped on ice while walking across the lot form the space where he was told to park and injured himself. After repeated requests for accommodation after his injury and being denied, the tenant eventually moved from the residence to prevent any further injury. As a result of the property manager’s failure to accommodate the tenant, which according to a HUD spokesperson is a required for FHA compliance when asked by a disabled tenantnot only suffered injury but also the inconvenience of relocating. The defendant denies the allegations and claims that the facts were inaccurate and they do not discriminate against disabled tenants. However if the property owner is found to have engaged in discrimination, up $16,000 in penalties may be imposed. http://www.jsonline.com/news/wisconsin/98984059.html

HUD will launch mortgage discrimination Investigations:
HUD will launch an Investigation to determine if lenders have violated the Fair Housing Act in their lending practices. The investigation is in response to a New York Times article titled "Seeking a Mortgage? Don’t Get Pregnant", which claimed that mortgage companies were guilty of denying pregnant women mortgages due to their temporary disability status (or leave of absence taken by parents to care for a newborn child) which results in a reduction in income. The crackdown by mortgage companies on home loans came with the stricter regulation of Freddie Mac and Fannie Mae. The lenders now take a harder and longer look at the qualifications of prospective borrowers which includes verifying income right before closing. Both Freddie and Fannie require enough income to cover loan, however the borrower must also show this “guaranteed income” will continue for three years following the application, which may not be apparent in the income of the temporarily unemployed (due to leave of absence) applicant. In some cases, lenders using a new mother’s disability payments as qualifying income will not grant the loans, even if she returns to work. In one case, a mother was denied a mortgage once the lender discovered she was on maternity leave assuming that her income was coming from disability payments. Once the applicant provided proof via the employer that her income remained unchanged during her leave and that she was still earning her full salary,she was able to qualify. This sort of knee-jerk reaction to a non-active employee receiving (partial or full) income,can appear to be indicative of discriminatory practices. In defense of the mortgage lenders, a representative of Mortgage Center states that the extra care is just “prudent underwriting”. The brokerage firm representative explains that if Fannie or Freddie, the purchasers of most mortgages, find that a borrower does not meet the requirements, they can require the lender to buy the loan back. Apparently the lenders caution is warranted as the number of repurchases by lenders has increased in recent years.
http://blogs.wsj.com/developments/2010/07/23/hud-warns-lenders-on-discrimination-of-expectant-mothers/

HUD decision sends retaliation warning to landlords:
An Iowa landlord was ordered to pay $52,150 to a single mother of three for retaliating against her for filing a housing discrimination complaint. The mother filed a complaint after being denied an apartment; she alleged that she was unjustly charged a higher security deposit because of her sex. HUD did not find evidence of sex discrimination, but did find that the landlord retaliated against her for filing a complaint. As result the administrative judge found in favor of the tenant awarding her $20,150 in damages and a civil penalty for $32,000. HUD representatives stated that retaliation against a tenant for exercising their rights will not be tolerated.

http://realestateinvestordaily.com/market-information-news/judge-orders-iowa-landlord-to-pay-52150-to-resolve-discrimination-case/

DOJ files steps in to end landlord’s discriminatory practices:
The Department of Justice filed a lawsuit against the owner and former manager of a 268-unit apartment building in Renton, Washington for violating the Fair Housing Act by discriminating on the basis of race, color, national origin and familial status. The complaint stated that the management company steered Indian, African Americans, and Hispanics and families with children from the apartment complex. Employees of the apartment complex were the first to complain to the Kings County Office of Civil Rights, who contacted the local Fair Housing Council. The council conducted a study to determine if there was any indication of discriminatory practices and referred it to HUD. HUD found reasonable cause and the defendants chose to have the case heard before the federal court rather than in an administrative court. U.S. Attorney for the Western District of Washington Jenny A. Durkan, stated "few things are more fundamental to success and happiness than having a safe place to live. Fair and equal access to housing is a cornerstone of our society." The complaint is based on the management company’s unlawful conduct and seeks monetary damages for harm suffered by the “defendant’s actions, civil penalties and a court order barring future discrimination. http://www.justice.gov/opa/pr/2010/July/10-crt-826.html

Fair Housing Report released at conference in New Orleans:
The Department of Housing and Urban Development releases first annual report of the state of fair housing which provides the progress being made in enforcing the Fair Housing Act and expresses the current administration’s commitment to ending housing discrimination. The report ,prepared in accordance with Sections 808(e)(2) and (6) of the Fair Housing Act and Section 561(j) of the Housing and Community Development Act of 1987, was released during HUD’s National Fair Housing Policy Conference in New Orleans July 19-23. According to the report the most prevalent type of housing discrimination continues to be complaints dealing with disability issues, making up 44% of complaints with 31% race and 20% familial status. The report also includes recent changes in policy, and provides cases that were resolved through the HUD process. Recent cases can be found in the report available at http://www.hud.gov/content/releases/fy2009annual-rpt.pdf.

Recent Cases (cont.)

2010-07-19T15:01:00.007-05:00

Petty v. Portofino Council of Co-Owners, Inc., 2010 U.S. Dist. LEXIS 22935 (March 12, 2010)

The plaintiffs, Jeffrey, Cindy and Christopher Petty's charged defendants, the Portofino Council of Co-Owners, Inc., with violating the Fair Housing Act, along with violating state laws regulating defamation, libel, slander, negligent misrepresentation, breach of fiduciary duty, and intentional infliction of emotional distress. The Defendant responded to the claims by filing a motion to dismiss.

The Pettys purchased a home in Corpus Christi, Texas and claim that they were harassed by the defendant in a variety of ways including the disconnection of their phone lines, which interfered with providing the proper care for their deaf son. Additionally, reasonable accommodations were denied the plaintiffs by limiting their ability to take the son’s service dog through the building so that the dog could relieve itself outside. The plaintiff not only claims that the defendant failed to make reasonable accommodations for their deaf son but also regulated the plaintiff’s children’s access to common areas in the condominium which affected their accessiblity to the dwelling. Lastly the plaintiffs charged the defendant with intimidating potential buyers of the plaintiff’s condominium and denying their application.

The Plaintiffs brought a familial status claim under Fair Housing Act §§ 3604(a)-(b), and a section 3617 claim. The plaintiffs demonstarted that defendant's discrimination affected the availability of the housing, and not merely the habitability of the housing, as required to make to make a valid claim. The court denied the defendants motion to dismiss and stated that the plaintiff’s claims were valid. The court agreed that the defendant’s actions limited the tenant’s availability to housing by making the entrances to the condo inaccessible to the tenant’s children and pets. In addition, the defendant blocked the plaintiff’s attempt to sell the condo. This pecuniary loss is what the court used to establish the injury suffered by the plaintiffs, which is a required element of the FHA claim.

The plaintiffs also filed a Disability Claim under FHA §3604 (f) and 3617, which prohibits discrimination in the sale or rental [of a property] or in any other way making dwelling unavailable for sale or rent due to disability. The court found that the failure to make reasonable accommodations for the plaintiff's son constituted discrimination based on a person's disability.

The state claims made by the plaintiffs include Negligent Representation, Breach of Fiduciary Duty and Intentional Infliction of Emotional Distress. The plaintiffs were unable to satisfy the requirements for the first claim which alleged that the defendants negligently represented that the plaintiff/homeowner, Jeff Petty, was a hacker. For the second claim the plaintiff attempted to establish that there was a “confidence…to act with good conscience and good faith…” between the two parties, or a fiduciary duty, due to their association as co-owners. However, case law has established that no duty exists between co-owner associates.

Finally, the court denied the defendants motion to dismiss the plaintiff's claim for Intentional Infliction of Emotional Distress for any acts that occurred after to May 8, 2007. The plaintiff attempted to establish that there had been continued violation of the Fair Housing Act by including the claims prior to this date, however the motion to dismiss was granted for those claims regarding acts which took place before May 8, 2007 and outside of the statute of limitations.

Ojo v. Farmers Group, Inc., 600 F.3d 1201 (9th Cir. 2010)

African American homeowner, Patrick O. Ojo complained that the Farmers Group insurance practices resulted in disparate treatment under FHA as a result of insurance company’s use of credit scores as a qualifying factor in determining insurance rate. Complainant claims that using credit scores factor that had a “racially disparate impact”

The district court found that the there was reverse preemption under the McCarran-Ferguson Act (MFA) 15 USC § 1012 (b) and Texas Insurance Code sections 544.002; 544.002, 559.051 and 559.052 . According to the MFA no federal law can “invalidate or impair or supersede” any state law made to regulate the insurance business. In other words, the state law, in this case the Texas Insurance Code which permits the use of credit scoring, allows the insurers to get around the FHA law against disparate impact on minorities because the Texas Insurance Code permissive law. In this case the state law would pre-empt the federal law. In most cases, it is the federal law which pre-empts the state law.

Ojo appealed and the three judge panel reversed the decision and held that “Texas law does not reverse preempt” the FHA claim. However the 9th Circuit Court of Appeals ultimately certified the unprecedented question of whether the Texas Insurance Code, in fact, reverse preempts (or overrides) the FHA claim because it has a “legally sufficient non-discriminatory reason” under the Insurance Code for using the credit scoring factor resulting in disparate impact.

Recent Cases

2010-07-13T15:38:00.007-05:00

Marshall Fincher v. South Bend Heritage Foundation, 606 F.3d 331 (7th Cir. 2010)

Fincher, tenant, sued the landlord after being denied Section 8 housing based on a prior eviction,claiming he was denied due process of law and suffered the effects of a breach of contract between the defendant and Housing and Urban Development Contract. The District Court a granted summary judgment to the defendant and the Appellate Court affirmed.

The Plaintiff brought a complaint against both the South Bend Housing Authority and the South Bend Heritage Foundation. The case against the Housing Authority was remanded to the state courts because the eviction process involved in the claim against the state agency is inherently a state issue. In the complaint against SBHF the plaintiff stated that did not have the opportunity to exercise his due process rights and that he was a party to the contract between the landlord and HUD because he was the recipient of the benefit.

The Appellate Court denied both claims. Pertaining to the first claim, the plaintiff concedes that there is well established case law for the 7th Circuit in Edison v. Pierce, 745 f.2d 453 (7th Cir. 1984) which states that recipients of Section 8 benefit have no right to due process when rejected from a specific housing unit, however, he asks that the Court overturn this precedent. With no new changes in law or flaws in the reason of the case exist to justify a overturn the Court’s previous decision. Secondly the Court rejected Fincher’s claim that he is third party-beneficiary to the contract between SBHF and HUD because he did not produce the contract or identify and any provisions (as required to establish an issue of law) that would establish the basis of his claim.

Equal Rights Center v. Archstone Multifamily Series I Trust, 602 F.3d 597 (4th Cir 2010)

The Equal Rights Center brought a claim against Archstone, Niles Bolton, and others for failure to comply with the FHA and ADA in the design and construction of 71 apartment buildings. Archstone, the apartment owners, sought to indemnify themselves against FHA and ADA by making the architect liable. The owners appealed and the appellate court affirmed the District Court’s decision to grant a summary judgment to the defendant, and deny the owner the motion to amend the complaint for contribution. The 4th Circuit Court of Appeals stated that the law was “non-delegable” and that the owner could not insulate himself from responsibility to meet requirements and that the purpose of both the FHA and ADA would have been undermined by allowing the architect to be held liable because it would not make the intended parties accountable or responsive to the law.

Archstone settled with the Equal Rights plaintiffs and filed a cross claim against Niles Bolton, the architect asserting several state-law based causes of action including express indemnity, implied indemnity, breach of contract, and professional negligence. Essentially it is Archstones position that the contract between the owner and the architect provides that the Architect make good defects that result from the architect’s failure to meet the professional standard of care. Archstone in its third party complaint, sought to recover damages, attorney’s fees and costs paid by Archstone to the Equal Rights plaintiffs and recover costs for retrofitting the portions of properties that didn’t meet ADA and FHA requirements. The Court found first, that the claims by Archstone were preempted under the federal law and secondly that the intent to recover losses and damages resulting from the non-compliance represented de facto indemnification from the federal statutes.

Finally, Archstone attempted to amend its complaint to include a claim for contribution, which the district court denied because it changed the nature of the claim regarding the liability and would therefore require additional discovery and “change the character of the litigation”, the appellate court agreed and affirmed the district ‘ decision to deny the amendment.

HUD Acts to Strengthen Anti-Discrimmination Policies in Recognition of LGBT Pride Month

2010-07-13T14:44:00.007-05:00

In celebration of LGBT Pride Month the U.S. Depart of Housing and Urban Development (HUD) announced an update in policy which proposes new methods for addressing LGBT individuals faced with housing discrimination. The Fair Housing Act does not address housing discrimination based on sexual orientation specifically, nor does it cover gender identity-based discrimination. However, HUD Secretary Shaun Donovan suggest that these types of issues could be addressed using other protect groups, for example LGBT parties could claim gender discrimination or discrimination based on a perceived disability.

The announcement by HUD regarding adding stronger policy, also encourages individuals to look at state laws and other local protections such as are enacted in approx. 20 states and a number of municipalities, which prohibit LGBT discrimination. HUD says local laws are not used in place of HUD but that they (local laws) can work in concert with the administrative efforts of HUD. Tenants can still file a complaint under the Fair Housing Act in federal district court.

The uncertainty of the economy makes housing an issue for all; however, according to National Center for Transgender Equality, those susceptible to discrimination, such as the LGBT community among others, find themselves especially vulnerable when no laws explicitly address these issues. Currently a significant number of transgender people are suffering eviction or homeless due to the lack of firm policy addressing LGBT non-discrimination. For this reason advocates want to see stronger law enacted to protect the housing of transgender tenants.

Three new bills are pending in the House, which would add specific language that speaks to discrimination in housing based on sexual orientation or gender identity. In addition to the efforts of some elected officials to pass more meaningful and impactful law, HUD has also taken steps to address such discrimination, including proposing policy that would address the issue in the core HUD housing programs requiring participant’s compliance with any local anti-discrimination laws addressing sexual orientation and gender identity. Mortgage and loan discrimination based on the same type of discrimination is also a target for reform. Though these changes in policy still must face review by the public and the laws must be voted though the House, these are long awaited steps in the right direction.

News Roundup: March 27 - April 2

2010-04-09T15:36:00.002-05:00

HUD Kicks Off Fair Housing Month Declaring 2010 a "Time to Act"
In an April 1st press release, HUD highlighted its achievements from last year and proclaimed its continuing commitment to ensure Fair Housing for all in the year to come.

“Discrimination based on how you look, the religion you practice, or because you have children or are disabled is illegal and unacceptable,” said John Trasviña, Assistant Secretary for Fair Housing and Equal Opportunity at HUD. “In the aftermath of Dr. Martin Luther King Jr.’s assassination in April 1968, President Johnson moved for passage of the Fair Housing Act to bring the nation forward and together. Since then, we have made progress but there remains work to be done. It is time to act.” (Full Press Release Here)

Massachusetts AG Obtains Consent Judgment on Craigslist Advertisements
The judgment resolves allegations that a landlord made discriminatory statements in rental advertisements posted on Craigslist for including the phrase "no section 8." Such language violates the "source of income" provision in Massachusetts Fair Housing Statute, a provision notably absent from the Federal Fair Housing Act.

The case is "the result of a continuing statewide investigation by the Attorney General’s Office into reports of widespread discriminatory housing advertisements on the Internet." On October 28, 2009, the Attorney General’s Office reached 20 settlements and filed six complaints against landlords and real estate agents across the Commonwealth accused of violating state anti-discrimination laws on Craigslist.

“As more families face tough financial times and have no choice but to rent, landlords and real estate professionals must recognize that the rental market is a regulated industry and compliance with our anti-discrimination laws is an important obligation,” said Attorney General Coakley. “While we hope that this enforcement initiative will have a deterrent effect, our office will continue to monitor Craigslist and take action against persons and entities that violate the law.” (Full Press Release Here)

Are Emotional Support Dogs Protected by the FHA?
As is clear from the HUD press release, service dogs assisting persons with disabilities are usually covered by the FHA under the reasonable accommodation provision. Less clear however, is whether the FHA will protect residents from being forced to give up "emotional support" animals when private housing rules place limitations on pet ownership.

In Harford County Maryland, a father and daughter are fighting a condo association's determination that they must find another home for their dog because it exceeds the one dog only policy. The second dog, Jack, came into the family to assist the mother during her last few months to live while suffering from stage 4 colon cancer.

While such a case might seem to elicit sympathy, whether such circumstances demand the force of law seems unlikely. (Full Article Here)

JMLS to Host Fair Housing Law Program on April 16 and 17
The John Marshall Law School Fair Housing Legal Support Center is presenting the program "Fair Housing Law and Enforcement: A Basic Survey of the Law and Practice."

The cost is $300 and Attorneys can receive 10 CLE credits. To register contact Maria Chavez at (312) 427-9438 or mchavez@jmls.edu. (Full News-brief Here)

News Roundup: March 15-26

2010-03-30T13:46:00.005-05:00

NFHA President Testifies Before House Judiciary Committee

(Reading the full testimony is strongly recommended for anyone interested Fair Housing issues.)

On March 11, Shanna Smith of the National Fair Housing Alliance (NHFA) testified before the House Judiciary Committee's Subcommitte on the Constitution, Civil Rights and Civil Liberties, with a presentation titled "Protecting the American Dream: A Look at the Fair Housing Act."

The testimony emphasizes that in spite of our efforts, the nation still falls "dramatically short of reaching the actual goals of the Fair Housing Act" which is designed to "eliminate housing discrimination and to promote residential integration." "While people are working together in greater numbers than ever before--many go home each night to racially segregated neighborhoods."

Shanna "explores the nature and extent of housing discrimination as it is manifested today, how enforcement action is moving from the individual case by case format to addressing systemic segregation and discrimination, albeit slowly, and why systemic enforcement actions using disparate impact arguments can make important and needed progress in achieving the Congressional intent of the law. I also discuss how the Fair Housing Act could still be improved to fight discrimination against additional protected classes and to address other issues that have arisen since 1968. Finally, I discuss the recommendations necessary to make enforcement of the law effective." (Full Testimony Here)

FHEO Winter 2010 Newsletter Now Available

The issue highlights numerous significant developments in the Fair Housing field.

HUD Launches Website to Gather Public Comment on LGBT Housing Discrimination Study

It is no longer necessary to attend one of HUD's official LGBT discrimination study listening sessions after the introduction of a new website that allows for public comment over the internet (Press Release and "Online Suggestion Box").

Can the FHA prohibit racist expressions where the first amendment does not?

Michael Corrigan, 62, of West Beverly neighborhood in Chicago, had signs on his property for nearly a year which read, "Say no to the ghetto," "White power," "Mt. Greenwood - the next Englewood," a sticker reading "White Pride Worldwide," and a tiny noose hanging from his garage.

Chicago Human Relations Commission chairman Dana Starks stated that the display "may have crossed the line into violations of federal and state fair housing laws that prohibit interferences with the purchase and sale of housing based on race."

The Commission is urging federal and state authorities to take notice of the issue and possibly charge Corrigan for any violations they may find.

Spokesman Kenneth Gunn of the Commission suggested that the signs may have a "chilling effect" on minorities looking to buy a home in the area (Chicago Examiner Article).

Recently, Fox News, through a freedom of information request, obtained a copy of the letter sent to the United State's Attorney General Eric Holder by the Chicago Commission on Human Relations in which "Commissioner Starks said the Chicago Fair Housing Ordinance is not applicable in this case, but the federal Fair Housing Act is. The Act allows for the feds to take action when intimidation is used to discourage people from buying a home because of their race."

Can the FHA prohibit offers of "free rent" to females posted on Craigslist?

The Housing Opportunities Made Equal of Virginia (HOME) has filed 20 complaints with HUD over Craigslist ads offering free rent to women, some of which detail feature characteristics like light skin, and are thought to be solicitations for sex.

Can the FHA's prohibition on advertisements targeted towards a specific gender help stop these alleged offers of sex for housing? Investigator Amy Nelson of HOME believes it can (Full Article Here).

Another Craigslist Quandary: "Bro Palace-America"

The ad seeks a "bro of epic proportions" to join a group of bros who "like to party hard and bang chicks even harder…in this "Temple to Broseidon." Is there a way around NIMBY? (Full Article Here).

New Book, 'Not in My Neighborhood: How Bigotry Shaped a Great American City' by Antero Pietila

"The bottom line is this: Gentiles excluded Jews and blacks from their neighborhoods using both legal and illegal means. Unscrupulous speculators took advantage of home sellers and buyers. Mortgage companies redlined neighborhoods where people could not get a regular mortgage, forcing them to rely on unscrupulous rent-to-buy schemes. With blockbusting techniques, flipping, and subprime mortgages, Baltimore neighborhoods and bank accounts were destroyed - to say nothing of people's souls" (Baltimore Sun Review).

News Roundup: March 8-14

2010-03-30T13:28:00.008-05:00

LGBT Developments

National Gay and Lesbian Task Force calls on federal lawmakers to amend the FHA.

Congressman Joe Sestak announced the submission of his Housing Non-Discrimination Act to amend the FHA so that it includes a prohibition on discrimination of LGBT persons.

Congressmen Jerrold Nadler of NY and John Conyers of Michigan have also voiced their support of such a measure.

AIG Settlement

Subsidiaries of American International Group have agreed to settle over allegations of charging higher broker fees for subprime loans to African American borrowers for a total of $7.1 million. This marks the first case in which a lender has been charged for such fee discrimination.

Bachelor Pad Advertisement violates FHA?

The Miami Valley Fair Housing Center filed a discrimination suit against The Connor Group for posting a Craigslist advertisement that read: "a great bachelor pad for any single man looking to hook up." It is being alleged that the advertisement discriminates against women by showing a preference for single males.

Baltimore Given More Time in Lending Case Against Wells Fargo

A federal judge has given the city of Baltimore more time to narrow its allegations against Wells Fargo for targeting black neighborhoods for bad loans which have resulted in foreclosures costing the city tens of millions of dollars. See here for analysis of the original dismissal.

Green Book Supplement Available

"The Green Book" 2010 supplement, the Bible outlining the laws and rights of tenants and applicants of HUD assisted housing, is now available.

What Obama's Proposed Inclusionary LGBT Housing Rule Does and Does Not Do

2010-03-10T12:07:00.002-06:00

The U.S. Housing and Urban Development Department conducted a listening session on Thursday in an effort to gather input on how to design the first-ever national survey of LGBT housing discrimination. The session was hosted at Chicago's city hall and included over a dozen members of the gay community, fair housing advocates and government officials who shared their stories and perspectives on the issue. (Full Washington Post article here).

One concern expressed the need for testers to "think of a way to make it clear that this is a gay couple and not just two men who really can't afford to do anything than get a single apartment with a single room," said John Knight of the ACLU.

This marks one of the first steps by HUD to fulfill their promise made in October of assuring the LGBT community inclusion in HUD programs. (Full Press Release Here).

In that press release HUD Secretary Shaun Donovan announced, "The evidence is clear that some are denied the opportunity to make housing choices in our nation based on who they are and that must end. President Obama and I are determined that a qualified individual and family will not be denied housing choice based on sexual orientation or gender identity."

The administration intends to achieve this goal in three ways:
1) through the promulgation of a rule that clarifies the term "family" in HUD's public housing and Housing Choice Voucher programs to include otherwise eligible LGBT individuals and couples; 2) require grantees and those who participate in the Department's programs to comply with local and state non-discrimination laws that cover sexual orientation or gender identity; 3) specify that any FHA-insured mortgage loan must be based on the credit-worthiness of a borrower and not on unrelated factors or characteristics such as sexual orientation or gender identity.

As evidence that this is an issue of national concern, Michigan in 2007 issued a report finding that nearly 30 percent of same-sex couples were treated differently when seeking housing (Michigan's full report here).

What does this mean for the LGBT and fair housing communities?

First, the rule does not change the Federal Fair Housing Act to include the LGBT community. LGBT persons can still be denied the sale or rental of housing on the basis of this status under federal law. While many people have expressed disappointment with this deficiency in the proposed rule, such a revision of the FHA would almost certainly be struck down in the federal courts on the basis that the President exceeded his executive powers in an attempt to legislate from the White House. The only promulgation I could conceive of as possibly escaping this Separation of Powers issue is HUD rule defining the meaning of "sex" to include gay, lesbian, bi, and transgender persons. While court's are required to grant Administrative agencies great deference in their interpretations of statutes, the courts would likely strike the rule down as an abuse of discretion in statutory interpretation.

Though the rule does not propose to change the FHA, the commissioned national study likely has that purpose. The release of that report will be used by LGBT and equal rights interest groups to place pressure on the legislature to pass an LGBT inclusive amendment. It is important to note however that while federal law is deficient in this area, 17 states and 80 cities have included LGBT provisions in their own housing laws.

Second, as many are unaware, The Housing Choice Voucher Program refers to what is more widely known as Section 8 housing. The proposed rule would make it illegal for HUD to discriminate against the LGBT community in the distribution of these housing subsidies. Presently, HUD agents could deny such vouchers to LGBT couples on the basis that they do not fit within the program's definition of family; hence the rule clarifying what "family" actually means in order to include LGBT persons.

Third, if my reading of the press release is accurate, the new rule would require landlords receiving section 8 vouchers to comply with those state and municipal laws that have LGBT inclusive provisions.

Finally, the rule would prohibit the Federal Housing Administration, a government agency created in 1934 under the National Housing Act to provide home financing through the insurance of mortgage loans, from discriminating against the LGBT community in the granting of FHA-insured mortgages. More on FHA insured mortgages here.

Children in Search of a Place to Play

2010-03-09T16:49:00.004-06:00

While the bylaws prohibit anyone from playing organized sports on the grounds of the complex, the condo association is being sued for discriminatory enforcement of condo rules against families with children. See full article here.

More Stringent Standard for Organizational Standing and the Need to Keep an Eye on this Issue.

2010-03-09T16:21:00.017-06:00

Equal Rights Ctr. v. Post Props. 657 F. Supp. 2d 197 (D.D.C. 2009)

Decided September 28, 2009

This case stands on the principle that organizational standing is not available when an organization's injury is self-inflicted. Whether we are seeing a more stringent principle being promulgated, a refinement in the law or a case of bad strategy is unclear.

Equal Rights Center ("ERC"), an organization devoted to advancing civil rights and fair housing for everyone, brought suit against Post Properties for allegedly failing to bring their buildings into compliance with accessibility provisions in the American Disabilities Act ("ADA") and Fair Housing Act ("FHA"). Post Properties owns and manages more than 21,000 apartment units across five states. According to the Court's description of the facts, ERC, on its own accord, chose to investigate one of Post's buildings to determine whether they were in compliance with accessibility laws.

The issue in the case is not whether Post actually violated accessibility laws but whether ERC had the authority to file suite and come before the court as an organization. To get before a court of law, Article III of the Constitution requires the plaintiff to have "suffered a concrete and particularized injury that is actual or imminent, traceable to the challenged act, and redressable by [the] court." Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Whether organizations have standing to sue on behalf of injured persons is not at issue here. The issue is whether organizations have standing in their own right, independent of its individual member's injury. While injury to an organization representing the interests of a particular class of persons may seem less concrete and particularized than that of an individual who is unable to rent from Post because a unit's doorway is not wide enough to fit a wheelchair, the Supreme Court has granted organizations standing before the court without necessarily creating a special exception. Haven's Realty Corp v. Coleman, 455 U.S. 363 (1982).

In Haven's, the Court ruled that a nonprofit corporation devoted to equal housing access had standing against a defendant's racial steering practices because steering frustrated its mission to assist minorities in accessing housing. Id. Additionally, the nonprofit, in providing such services, had to expend substantial resources in identifying violations of the law in the community they served. Even if no economic resources had been expended, the court noted that an organization is not deprived of organizational standing when the alleged injury results from the organization's non-economic interest in encouraging open housing. The nonprofit merely has to demonstrate that it "suffered impairment in its role of facilitating open housing." Id. at 379.

According to the court in Equal Rights Center, the standing doctrine in Haven's does not however extend to where a plaintiff's injury "merely consists of the impact on its activities caused by their willful diversion of resources in response to the defendants' conduct." Equal Rights Ctr. v. Post Props. 657 F. Supp. 2d 197 (D.D.C. 2009). Thus, organizational standing will not be found when the injury to the plaintiff is said to be purely self-inflicted and arising solely out of their own decision to expend resources. Id. at 201.

Through its interpretation of the discovery proceedings, the court here determined that ERC essentially conceded that its injuries were caused by its own decision to investigate the Defendant. This lead to the finding that ERC's injuries were purely self-inflicted and thus falling outside the scope of standing law provided in Haven's.

Whether this decision marks a tightening of Organizational Standing law or wrong strategy is unclear. It seems that the court should have recognized that ERC's ability to provide the service of referring persons to handicapped accessible housing was impaired by the Defendant's alleged failure to comply with accessibility standards. The fewer handicapped accessible units (required by law) within a community, the more difficult it will be for ERC to fulfill its mission of providing equal housing to persons with a handicap. It is also possible; however, that ERC did not sufficiently plead this injury; in which case, the court is not required to supplement deficiencies on behalf of either party. (While the true facts of the suite are unclear, it is always prudent to file a case with a bona-fide plaintiff who was looking for accessible housing and join them in the claims against Defendant).

On the other hand, this case, if appealed, may change the interpretation of the long standing requirements set forth in Haven's. Perhaps this case represents a movement away from finding organizational standing in situations where the injury to an organization's mission is less concrete.

$7.4 Million Retrofitting Case

2010-03-05T13:37:00.002-06:00

Retrofitting housing units to comply with accessibility requirements under the FHA for persons with disabilities is expensive. A.G. Spanos Companies, the nation's fifth-largest housing developer, understands this fact quite well after settling for an estimated $7.4 million for non-compliance with FHA building standards.

According to the press release, "Under the agreement, the nation’s fifth largest builder of residential real estate will retrofit properties in Arizona, California, Colorado, Georgia, Florida, Kansas, Missouri, Nevada, New York, North Carolina, and Texas at an estimated cost of $7.4 million."

The FHA provides that since 1991 new construction of multifamily dwellings with four or more units be required to have accessible ground floor units where there is no elevator and accessibility for all units in buildings with an elevator. This is true for both public and private housing except in rare instances where steep terrain makes accessibility standards impracticable.

It is not uncommon, as was the case here, for city building inspectors to approve new construction of housing developments that do not comply with the FHA. This just shows how disparate local building codes are from the FHA requirements. The Fair Housing Accessibility First Initiative was designed to promote compliance nationwide with the FHA. The present settlement will contribute to this initiative in numerous ways that are detailed in the Press Release.

$160,000 Settlement Reached Over Racial Steering Complaint in Atlanta

2010-02-08T15:50:00.001-06:00

Atlanta area realtors settled with the Justice Department on Feb. 3, 2010 over allegations of racially steering prospective home-buyers. The complaint, filed by HUD and the National Fair Housing Alliance, resulted in an investigation which reported that agents were steering white testers away from predominately black neighborhoods because of race. One tester reported that an agent wasn't sure what area to take the prospective home-buyer because he could not tell the testers race from their phone conversation.

Full article here.

HUD Grants $26 Million to Fair Housing Organizations

2010-02-05T16:03:00.004-06:00

In an effort to continue fighting housing discrimination, HUD once again distributes funds to local fair housing agencies across the country.

HUD Press Release

7th Circuit Carves out More Space for Post-Acquisition FHA Claims

2010-01-29T17:59:00.005-06:00

Bloch v. Frischholz, 587 F.3d 771(7th Cir. 2009)

Decided November 13, 2009

The 7th Circuit Court of Appeals unanimously held in Bloch v. Frischholz,that the Fair Housing Act (FHA) protects persons from discrimination not only before, but also after housing has been acquired. Though bright-line rules were not necessarily developed, the court discusses three provisions through which post-acquisition claims can now more clearly be established.

Since 2004, after the Court's decision in Halprin v. Prairie Single Family Homes, the Fair Housing law in the 7th Circuit concerning post-acquisition conduct has been construed very narrowly because as the court stated,"the FHA by and large [is] concerned only [with] access to housing." Id. Halprin has lead many courts to focus on the timing of the discrimination rather than whether discrimination actually occurred. Bloch, to a certain extends, clarifies this area of the law by ruling that the FHA reaches a "range of post-acquisition conduct." Bloch v. Frischhol.

The plaintiff's in Bloch claimed that the condo association's refusal to allow Jewish members to affix a mezuzah (religious symbol) to their door posts violated three provisions of the FHA under post-acquisition legal theories. The court addresses each claim:

Claim 1 - Post-Acquisition Unavailability Through Constructive Eviction

Section 3604(a) of the FHA makes it unlawful "to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin."

This provision is focused on access to housing and is not necessarily targeted at post-acquisition conduct; however, should the post-acquisition discriminatory conduct effectively deny access to already-owned or rented property, 3604(a) may be violated. The plaintiffs argued that the Association's religious discrimination amounted to "constructive eviction," a doctrine in real property whereby a landlord renders property unavailable due to a failure to perform a legal duty (provide heat or water). The issue here is whether by refusing to allow the Bloch's to place the mezuzah outside their door, the association constructively evicted the Bloch's on the basis of religion because the Jewish faith requires the ability of followers to affix a mezuzah to their doorposts.

The issue rested on the court's interpretation of "unavailable." In a case of constructive eviction, the plaintiff must show that the residence is "unfit for occupancy," often to the point that one is "compelled to leave." (Citing Black's Law Dictionary). The Bloch Court provided that diminution of property values, blatant discriminatory acts, or the lack of an elevator service does not cross the unavailability threshold. On the other hand, changing the locks of a tenant without providing the key because of race, or not providing heat on the basis that the tenant has children, would amount to unavailability.

Inseparable from any argument as to whether a unit is unavailable is the question of whether the plaintiff vacated the premises. While the court in Bloch does not establish a bright line rule requiring that the plaintiff vacated the unit, it appears that the plaintiff must either provide evidence that they vacated, or had an intent to vacate the premises but were unable to do so. The Court appears to establish a reasonableness standard in stating that since the the Blochs neither vacated nor provided a reason why they failed to vacate, a reasonable jury would be unable to find that the Association made the unit unavailable.

Thus, a post-acquisition claim under section 3604(a) requires that the premises be made effectively unavailable to its residents because of race, color, religion, sex, familial status, or national origin, and that the residents left the premises or intended to leave but were unable to do so.

Claim 2 - The Right to Inhabit as a Privilege of Sale and Abuse of Contractual Powers.

Section 3604(b) makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin."

First, the court finds that a 3604(b) allows for the same constructive eviction theory as under 3604(a) because the availability of housing already acquired is a privilege of sale. Making the premises unavailable is therefore a deprivation of one's right to privileges of sale.

Additionally, a post-acquisition claim can be made under 3604(b) where a resident agrees to subject themselves to rules imposed by a Board as a condition of the housing housing purchase. Should the board enforce those rules in a discriminatory fashion, there may be a 3604(b) violation. For example, if a condo association board rules against leaving trash cans outside a resident's unit, but only penalizes black residents for breaking the rule, the black residents will have a valid post-acquisition 3604(b) claim.

Here, if the Bloch's can show that the condo association selectively enforced, or expanded the scope of the rule in order to specifically target the Bloch's use of the mezuzah, they may prevail on the 3604(b) claim.

Claim 3: Denial of the Right to Full Enjoyment of Premises

Section 3617 makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title."

The language of 3617 on its face seems to suggest that for a 3617 action to be valid, the plaintiff must possess a separate cause of action under 3603-3606, of which they tried to exercise, and were later discriminated against on the basis of having that right. A post-acquisition claim under this reading would require one of the above two post-acquisition theories to be satisfied before a 3617 action could be pursued (except with handicapped cases). This provision is usually violated when a person is denied housing on the basis of race (3604) etc. and then is threatened not to pursue legal action for that denial (3617).

However, the court Bloch expands this meaning to allow for a 3617 claimindependent of any other FHA cause of action. This decision almost has the effect of overruling Halprin in that it protects a residents right against discrimination that interferes with the enjoyment of their already acquired housing. This reading is consistent with the intent of the FHA's purpose to "replace the ghettos by truly integrated and balanced living patterns." Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972). Additionally, the court cites HUD's interpretation of 3617 which prohibits "interfering with persons in their enjoyment of a dwelling because of the race [or] religion . . . of such persons." 24 C.F.R. 100.400(c)(2).

While the extent of this protection is to be worked out in the years to come, the court did provide a four part test for 3617 claims: The plaintiff must show that (1) she is a protected individual under the FHA, (2) she was engaged in the exercise or enjoyment of her fair housing rights, (3) the defendants coerced, threatened, intimidated, or interfered with the plaintiff on account of her protected activity under the FHA ("Interference" is more than a "quarrel among neighbors" or an "isolated act of discrimination," but rather is a "pattern of harassment, invidiously motivated."), and (4) the defendants were motivated by an intent to discriminate.

(The Bloch case was remanded and the case is pending before the district court.)

FHA Reverse Redlining and Pleading Standards

2010-01-28T16:46:00.004-06:00

United States District Court, N.D. California
Hafiz v. Greenpoint Mortg. Funding, Inc.
652 F.Supp.2d 1039
July 16, 2009

Hafiz is significant to fair housing law because it re-articulates the manner in which a predatory-lending/reverse-redlining claim can be made under the FHA. It also shows how some courts are using the new more stringent pleading standards under Iqbal to dismiss federal claims.

Plaintiff Majiman Hafiz's investment property was subject to foreclosure after falling behind in her monthly mortgage payments. In order to prevent the foreclosure sale of her property, Plaintiff alleged in her complaint that Defendant, Greenpoint Mortgage, failed to give her adequate time for review of the loan documents. Plaintiff also alleged that Defendant failed to disclose mortgage-related information as required by state and federal law. Plaintiff claimed that these alleged acts of excessive fee structures and failed disclosures on behalf of defendants resulted in the issuance of a loan which was subject to a repayment schedule that would eventually "outstrip" her ability to pay.

Among numerous other alleged violations, plaintiff claimed that defendants violated the Fair Housing Act under the theory of "reverse-redlining" which makes it unlawful for lenders to offer credit to certain classes, people groups, or geographic areas on terms less favorable to persons outside of the targeted people group. Should a lender only offer adjustable rate mortgages to persons of color buying in a particular neighborhood while offering fixed rate mortgages with lower interest rates to whites in the same or different area, such would likely constitute reverse redlining. Redlining on the other hand was the denial of any financial services to persons based on race, etc.

In Hafiz, the court provided a four part test for reverse-redlining violations under the FHA: (1) plaintiff is a member of a protected class; (2) plaintiff applied and was qualified for the loans; (3) the loans were given on grossly unfavorable terms; and (4) that the lender either intentionally targeted plaintiff for unfair loans or currently makes loans on more favorable terms to others. Id. at 1046.

The Court found no FHA violation because the complaint fell short of the relatively new fact pleading threshold requirements under Ashcroft v. Iqbal 129 S.Ct. 1937 (2009). Instead of pleading sufficient factual findings, the plaintiff merely stated legal conclusions of being extended less favorable loans than "Caucasian counterparts." Accordingly, these conclusions were considered to be "couched as factual allegations which are not entitled to a presumption of truth." Id. at 1046. The reverse-redlining claim was ordered insufficient to overcome the motion to dismiss.

Fair Housing 40 Years Later

2010-01-28T16:21:00.005-06:00

Provided is news story addressing the issue of fair housing law over the last 40 years.

Link with video.

Ho. v. HUD

2009-07-06T09:05:00.001-05:00

Chak Man Fung was the owner of an apartment that rented to three individuals one of them was Jennifer Ho. Ho acted as Ho’s agent when choosing renters. When Diana Lin decided to move out before her lease was up she found Meki Brachen to move in. Lin said she would not rent to blacks, additional Fung would also not allow Brachen to move in and barred any attempts. Ho and Meki Brachen filed racial discrimination charges against Fung and Lin.
Several notifications by first class mail and Fed Ex were sent out and neither defendant answered. Finally after a fourth notification, Ho, but not Fung showed up for a hearing on remedies. Ho appeared without counsel and asked for a postponement because she realized that she needed counsel but her attorney was unavailable for the date. Additionally she explained that she had not wanted to read the legal notices and had just opened them days before the hearing. The ALJ denied the motion for a continuance, observing that Ho had only herself to blame for not opening the letters earlier and postponement would waste the time of assembled witnesses. Compensatory damages for mental distress and financial injury were awarded to Bracken for $49,284 and Lin for $25,345.
Ho claimed that that the agency violated the due process clause of the Fifth Amendment by not providing her with adequate notice of the proceedings and not postponing the hearing when she eventually opened the letters. However, the Constitution does not require that an effort to give notice succeed. See, e.g., Dusenbery v. United States, 534 U.S. 161 (2002). If it did, then people could evade knowledge, and avoid responsibility for their conduct, by burning notices on receipt—or just leaving them unopened, as Ho did.
Additionally Ho was ordered to pay the maximum civil penalty of $11,000 in additional compensatory damages. The ALJ concluded that the maximum penalty is appropriate because Ho not only set out to discriminate but also was truculent after being told of the conduct’s illegality. The ALJ deemed Ho’s decision to barricade the door against Bracken an egregious form of discrimination. Ho claimed that the penalty was egregious because they did not look at her finances, one of six factors the agency finds relevant. The agency was never given this information because a person who fails to supply information forfeits any complaint that the decisionmaker was uninformed on some issue.
Fung claimed that the ALJ had to prove a prima facie case of liability for discrimination. However Fung misunderstands how HUD handles defaults. A regulation provides that “failure to file an answer to the complaint shall be deemed an admission of all matters of fact recited therein. The ALJ concluded that the admitted facts do show liability. Fung apparently thinks that a prima facie case of liability depends on live testimony. Not at all; admissions are better evidence than testimony, because admissions are incontestable.
Fung additionally claims that he is entitled to discriminate by 42 U.S.C. §3603(b)(1). However that caption is an exemption which makes it an affirmative defense which must be timely asserted unusual in the answer and certainly at the trial. Fung did not answer or participate in the trial waiving this right. Addionally, Fung rented it to three unrelated persons; that’s not a single family by anyone’s definition. Then there is the fact that Ho acted as Fung’s agent, something that Fung admitted by failing to answer the complaint, which alleged that an agency relation existed.

HUD AND FAIR HOUSING PARTNERS REPORT RECORD NUMBER OF HOUSING DISCRIMINATION COMPLAINTS

2009-06-22T15:21:00.002-05:00

A record 10,552 fair housing discrimination complaints were filed in fiscal year 2008, according to a report just released by the U.S. Department of Housing and Urban Development. The report, which is produced for Congress each year, shows that a large portion of the complaints, 44 percent, were filed by persons with disabilities. Thirty-five percent, or 3,699, of the complaints alleged discrimination based on race. Click Here to read the full article

Justice Department Files Lawsuit Alleging Racial Discrimination at Mobile Home Park in Gulfport, Mississippi

2009-06-22T14:16:00.000-05:00

Justice Department Files Lawsuit Alleging Racial Discrimination at Mobile Home Park in Gulfport, Mississippi

You-Tube: H.R. 1728 Hearing: Congressman Kanjorski on Anti-Predatory Lending Legislation on House Floor

2009-05-08T12:25:00.000-05:00

http://www.youtube.com/CongressmanKanjorski

H.R. BILL 1728 Passes the House: Modification of the Lending Rules for Banks

2009-05-08T12:18:00.000-05:00

http://www.responsiblelending.org/media-center/press-releases/archives/mortgage-reform-bill-passed-by-the-house.html

Architects and other design professionals can be sued for negligence

2009-04-03T11:37:00.000-05:00

http://www.azcentral.com/business/abg/articles/2009/04/02/20090402abg-fischer0402.html

Younger Doctrine and Federal Intervention into State Court Criminal Action

2009-03-31T14:02:00.000-05:00

Safe Haven Sober Houses v. City of Boston, 517 F.Supp.2d 557 (D.Mass. 2007).
When Boston brought criminal proceedings against the owners and operators of homes for recovering alcoholics and drug users, those Defendants filed a preliminary injunction to stay the state criminal court proceedings. The Defendants argued that the court should analyze the motion under the traditional four-part test 1) likelihood of success on the merits 2) irreparable harm 3) balancing of the equities, and 4) the effect on the public interest of either the granting or denial of the injunction. The court analyzed the case under the Younger doctrine which prohibits a federal court from intervening in a state court criminal proceeding except under the following unusual circumstances: 1) "a statute that is 'flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it' (2) state prosecutions brought in bad faith without 'any expectation of securing valid convictions' or (3) when it 'plainly appears' that pursuing claims in pending state proceedings 'would not afford adequate protections.'" Id. at 561-62 (quoting Younger v. Harris, 401 U.S. 37 (1971))

The court summarily dismissed the first prong of the analysis and spent more time on the second. Relying on Dombrowski "the seminal bad faith prosecution case identified in Younger" the court recited the two-prong analysis for state prosecutions brought in bad faith: (1) "'a prosecution has been brought without reasonable expectation of abtaining a valid conviction;'and (2) the defendants cannot adequately assert their claims because of an unavailable or biased state forum." Safe Haven, F.Supp 2d at 562-63. Finding that the city was not harassing the housing providers as it was responding to the providers' violations of zoning and building regulations. The court found this prong inapplicable as well.

Further, the court elaborated on the third prong, the adequacy of state protections, as applicable "(1) when a state forum is biased or (2) when a state forum cannot provide a remedy." Id. at 566. The court found this prong inapplicable. The motion for the preliminary injunction was denied.

Housing Authority Attempts to Evict Mentally Disabled Man

2009-03-31T12:07:00.000-05:00

Boston Housing Authority v. Bridgewaters, 2009 WL 26765 (Mass.)
Defendant was a mentally disabled man living with his brother in an apartment under the Boston Housing authority. He was not on his medication for manic depression and was transitioning between doctors when he assaulted his brother. The housing authority brought eviction proceedings. BHA got judgment for possession of the apartment. Court vacates and remands. Under 3604(f)(3)(B) discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services." The court found that the Defendant made a request when he expressed a desire to continue his tenancy and that there were no "magic words" required in making this request. Further, the BHA had to accept that his disability caused the violence if they were unable to prove otherwise.

City Ordinance Prohibiting Children in SRO Unit Does Not Violate the FHA

2009-03-31T11:41:00.000-05:00

Sierra v. City of New York, 579 F.Supp.2d 543 (N.D.N.Y, 2008)
Plaintiff, mother of two children, challenged the constitutionality of a NYC Housing Maintenance Code. She brought suit under 3604(a) claiming that the law which forbids children from living in SRO’s is facially discriminatory on the basis of family status. She sought to have the ordinance declared invalid and to enjoin its future enforcement. The court held that the city code did not violate the FHA because it furthered legitimate state interests in “health, safety and welfare of children that cannot be achieved through other alternatives” at 554. The court agreed that SROs are unsafe for children because occupants of several units share bathroom and kitchen facilities. The defendant offered “extensive evidence demonstrating concrete physical and psychological effects of SRO living on children, rather than merely generalizations and conclusory assertions.” at 551.

Subjective Fees Have Disparate Impact

2009-03-31T10:08:00.000-05:00

Hoffman v. Option One Mortgage Corp. & H & R Block Mortgage Corp., 589 F.Supp. 2d 1009 (N.D.Ill. 2008).
Plaintiff may assert a disparate impact claim on the basis of discretionary pricing. Under these financing practices, minority buyers are substantially more likely to be charged more in discretionary fees than are white buyers, even when controlling for risk-related factors. Defendants' motion to dismiss denied.

St. Bernard Parish, Louisiana violated the Fair Housing Act (FHA)

2009-03-27T15:29:00.000-05:00

http://www.pili-law.org/AlumniSpotlights.htm#lopez
The United States District Court for the Eastern District of Louisiana issued its ruling that St. Bernard Parish, Louisiana violated the Fair Housing Act (FHA) and a prior consent decree of the court in enacting a moratorium on apartment development in response to a developer proposing low income housing tax credit multifamily housing complexes in St. Bernard. The ruling points out that the moratorium was passed with the intent of, and had the effect of, discriminating against potential minority residents of St. Bernard, which is only 7.6 percent African-American as opposed to neighboring Orleans Parish, which is 67.3 percent African-American.
http://www.munsch.com/lists/lt.php?id=MB8GUFRTU1dEUAEHSggDUVZR

Expiration of Housing Voucher Does Not Toll Limitations Period

2009-03-22T09:01:00.000-05:00

In Ortega v. Housing Authority of the City of Brownsville, 572 F.Supp.2d 829, (S.D. Tex. 2008) the Plaintiff's application for a housing voucher expired when he was unable to prove legal guardianship of his grandson. The Plaintiff alleged discrimination based on familial status in violation of 42 U.S.C. Sec. 3602(k). This section defines "familial status" as "one or more individuals...being domiciled with (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee or such parent or other person having such custody, with the written permission of such parent or other person.

The court had to decide whether the two year limitations period began to run on July 19, 2004 when the housing voucher was issued by the agency or whether it began to run on December 21, 2004 when the agency issued a letter to inform the Plaintiff that the voucher had expired and his application was canceled. The Plaintiff filed suit in December of 2006.

The Plaintiff argues that because he was injured again in May of 2006 when he reapplied and no voucher was issued, the continuing violation doctrine tolled the limitations period. The court rejected this argument. In its analysis, the court relied on Huckabay v. Moore, 142 F.3d 233, 238-39 (5th Cir. 1998) where that court "reasoned the continued violations doctrine was useful where individual acts or events may not be evident of discrimination except in cumulation over time." It also relied on Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th cir. 1983) where that court laid out three reqirements for continuing violations: 1) similar subject matter; 2) frequent violations; and 3) a minor degree of permanence.

The third requirement was most persuasive here as the Ortega court held that the violation of the voucher in 2004 "was sufficiently permanent to create a cause of action and put a reasonable person on notice that he could act to protect his rights."

Mortgage Brokers and Discretionary Pricing

2009-03-20T07:59:00.000-05:00

In Taylor v. Accredited Home Lenders, 580 F.Supp.2d 1062 (S.D. Cal. 2008) the Plaintiffs alleged a facially neutral "discretionary pricing policy" had a disparate impact on African American borrowers. At issue was whether the injury suffered was the result of a single incident violation which would have placed the Plaintiff's complaint beyond the two year statute of limitations or whether the injury was the result of a continuing violation.

42 U.S.C. Sec.3613(1)A) requires that actions must be commenced "no later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice." The court agreed with the Plaintiffs and held that the issuance of each mortgage statement containing the inflated amount due constituted a new violation and that each payment of that inflated figure was a new violation. The court rejected the defendant's single incident theory that "the violation occurred and terminated when the loan closed." Id. at 1065.

The court relies on Havens Realty Corp. v. Coleman, 455 U.S.363(1982) and its explanation of the continuing violation doctrine.

STIMULUS PLAN BRINGS NEEDED RELIEF TO LATINO FAMILIES...

2009-03-11T16:33:00.000-05:00

http://www.nclr.org/content/news/detail/55892/

2009-03-11T16:04:00.000-05:00