Boston Business Litigation Blog

The United States Court of Appeals for the Third Circuit has split with the Fourth and Ninth Circuits and held, en banc, that civil lawsuits alleging violations of the Fair Debt Collection Practices Act("FDCPA"), 15 U.S.C. § 1692 et seq., must be filed within one year of the alleged violations, and that the statute of limitationsis not tolled until the violations are discovered by the plaintiff.  Rotkiske v. Klemm, 890 F.3d 422 (3d Cir. 2018).

The Alimony Reform Act specifies statutory limits for the duration of alimony depending on the length of the marriage. The shorter the marriage, the shorter the duration of an alimony obligation. The length of marriage is defined as the "number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support." But what happens in the event that there is more than one complaint for divorce, or complaints for support and modification? What becomes the "end date" of the marriage so that one can determine how long the marriage was and, consequently, how long the alimony obligation will last?

The United States Census Bureau shows the median age of individuals at the time of their first marriage is becoming increasingly older for both men and women.  Meanwhile, the number of unmarried individuals cohabiting with their significant others is growing. These trends may be due in some part to couples delaying the responsibilities of marriage as they focus on their careers, but here is something all couples should know: for purposes of determining the length of a marriage for an alimony award, the period of premarital cohabitation could be included regardless of whether both parties were contributing financially.

Until late 2017, the question of whether a former officer of a Massachusetts corporation has access to attorney-client privileged communications made while that officer was employed at the corporation, had not been directly addressed by Massachusetts courts.

One of the biggest challenges startups and early stage companies face is attracting and retaining talented employees.  When the potential of a company outstrips its ability to pay market value salaries, compensation packages that include grants of stock or options can bridge the gap until the business has sufficient cash flow.  There are many advantages to these compensation arrangements, but companies need to be aware of some of the legal pitfalls as well.

In an important decision for debt investors, the Supreme Judicial Court has ruled that passive debt buyers are not "debt collectors" under the Massachusetts Fair Debt Collection Practices Act ("MDCPA").  The decision, Dorrian v. LVNV Funding, LLC, can be found here. 

In the United States, the Federal Arbitration Act ("FAA") provides the rules that govern most arbitrations, and is binding on both state and federal courts.  See 9 U.S.C. § 1 et seq.  But the FAA is "something of an anomaly" in federal legislation as it "bestow[s] no federal jurisdiction."  Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008).  So motions to compel arbitration or enforcement proceedings must be brought in state courts unless there is some independent basis to assert jurisdiction (such as federal diversity jurisdiction).

The Probate & Family Court recently announced that the Fiduciary Litigation Pilot Project under Standing Order 3-17 (https://www.mass.gov/probate-and-family-court-rules/probate-and-family-court-standing-order-3-17-fiduciary-litigation) has been expanded to apply to cases filed in Essex and Plymouth Counties.  Previously, the pilot project applied to case filed only in Middlesex, Norfolk and Suffolk Counties.

Parties involved in a real estate dispute in Massachusetts are fortunate to have choices when it comes to the venue of the litigation. One of the most strategic decisions that a plaintiff or defendant can make is deciding where to litigate the case. When it comes to real property disputes, the Massachusetts Land Court and the Superior Court have overlapping jurisdiction, also referred to as concurrent jurisdiction, on certain claims.  While the Superior Court enjoys broad jurisdiction over a variety of civil and criminal matters, the Land Court specializes in disputes involving real property. Massachusetts General Laws Chapter 212, § 26A, permits either party to remove any non-jury civil action involving "any right, title or interest in land" from the Superior Court to the Land Court.  The claim must not be one that entitles a party to a jury trial because the Land Court only conducts jury-waived trials, frequently called bench trials.

Would it surprise you to learn that when you see a clause in your international sales contract stating that Massachusetts (or any other State's) law applies, that it actually incorporates an international treaty that will likely supersede the Uniform Commercial Code ("UCC")?

One of the new provisions of the new tax reform bill - background here - is that the long-standing tax deduction for alimony will no longer be available for separation agreements and divorces obtained after December 31, 2018.  Specifically, the reform applies to "any divorce or separation instrument . . . executed after December 31, 2018" (emphasis added).  

The price of Bitcoin has recently skyrocketed, rising from $1200 per Bitcoin in the second quarter of 2017 to $ 10,000 per Bitcoin in 2018. However, the law has not kept pace: critical questions remain regarding how Bitcoin should be valued. For example, if Bitcoin is fraudulently transferred, how should damages be calculated? In February 2016, in the first case of its kind, the U.S. Bankruptcy Court for the Northern District of California held that, for the purpose of the fraudulent transfer provisions of the U.S. bankruptcy code, Bitcoins are not the equivalent of United States dollars. However, the court left open whether Bitcoin should be valued as a currency or a commodity.

One of the first questions that any attorney and potential litigant must consider when deciding whether to file a lawsuit is where to bring the case. Since November 2017, potential probate litigants in three Massachusetts counties have a new venue to consider, the Fiduciary Litigation Session, or "FLS", at the Norfolk Division of the Probate and Family Court in Canton, Massachusetts. The parameters of the FLS are outlined in Probate and Family Court Standing Order 3-17. Borrowing elements of the successful Business Litigation Session at the Suffolk Superior Court, /blog/2015/10/the-specialized-role-of-the-business-litigation-session.shtml, the FLS's goal is "to provide a specialized forum for the speedy resolution of contested and complex probate litigation cases and to provide individualized and collaborative case management to reduce the costs associated with fiduciary litigation." http://www.mass.gov/courts/case-legal-res/rules-of-court/probate/pfc-orders/3-17.html

On April 1, 2018, the Pregnant Workers Fairness Act (the "Act") takes effect. https://malegislature.gov/Laws/SessionLaws/Acts/2017/Chapter54. The Act amends Massachusetts' anti-discrimination law, G.L. c. 151B, which applies to employers with six or more employees, to now include pregnancy and related conditions as protected categories. The Act requires employers to provide "reasonable accommodations" for pregnancy and related conditions, including breastfeeding and the need to express breast milk, so long as the accommodations do not cause the employer "undue hardship."

In a recent landmark decision, Barbuto v. Advantage Sales & Marketing, LLC, the Supreme Judicial Court ruled that an employer that terminated an employee for testing positive for marijuana use (which violated the company's policy) could be found to have discriminated against the employee on the basis of her handicap. At the time she was hired, Barbuto was informed that the company would require her to undergo a drug test. She informed the company that her physician had provided her a written certification that allowed her to use marijuana for medical purposes, due to the fact that she suffered from a debilitating medical condition under Massachusetts law; she also agreed that she would not use marijuana before work. The employer told her that a positive result for marijuana would not disqualify her from the position. Despite having made that assurance, following Barbuto's first day of work Advantage Sales terminated her employment due to the positive drug test, on grounds that the company followed federal law, not state law. The use of marijuana for medicinal purposes, while legal in Massachusetts at the time (the non-medicinal use of marijuana had not yet been legalized), was still a crime pursuant to federal law. Therefore, the use marijuana for medical purposes, even while legal in Massachusetts, could still subject the user to federal criminal prosecution. Barbuto sued Advantage Sales, alleging (among other things) that she had been discriminated against on the basis of her handicap. In Massachusetts, a "handicap" is a physical or mental impairment that substantially limits one or more major life activities of a person (or a record of having such impairment or being regarded as having such impairment). Massachusetts law prohibits employers from terminating or refusing to hire an employee because of their handicap if that employee is capable of performing the essential functions of the position involved with "reasonable accommodation," unless the employer can demonstrate that the accommodation that would need to be made would impose an undue hardship to the employer's business. A reasonable accommodation is an adjustment or modification to a job (or the way it is done or the environment in which it is done) that makes it possible for the handicapped individual to perform the essential functions of the job. An employer who receives a request for a reasonable accommodation from a handicapped person is required by Massachusetts law to engage in an interactive process with the employee to ascertain whether the requested accommodation is reasonable and, if not, whether another accommodation can be made that would be reasonable. The Massachusetts medical marijuana law provides, "Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions." Advantage Sales claimed it owed Barbuto no obligation to participate in the interactive process to identify a reasonable accommodation before it terminated her employment because, it alleged, the accommodation she sought violated a federal statute and was, consequently, unreasonable. It also alleged that she was terminated because she failed the drug test in violation of company policy, not because of her handicap. The SJC rejected Advantage Sales' first argument on grounds that the fact that Barbuto's possession of medical marijuana violated federal law does not make it per se unreasonable as an accommodation. It noted that only the employee was at risk of federal criminal prosecution for her possession of the medical marijuana, not the employer. It concluded that to hold otherwise would operate to deny handicapped employees the right to or privilege of a reasonable accommodation under Massachusetts law. It also pointed out that, even if the requested accommodation had been unreasonable, Advantage Sales was still obligated to participate in the interactive process of trying to craft another, equally effective accommodation that was reasonable (which it had not done). The Court rejected Advantage Sales' second argument on grounds that it would permit employers to enact policies that would enable them to do an end-run around handicap discrimination laws (i.e., by adopting company policies that would deny employees reasonable accommodations). The Court reversed the lower court's dismissal of Barbuto's claims of handicap discrimination and sent the case back to the lower court to determine whether her use of medical marijuana would impose an undue hardship on Advantage Sales' business and would, therefore, not be a reasonable accommodation. The Barbuto decision does not mean that employers must permit the use of marijuana even by handicapped employees. The significance of the decision is, instead, that use of medical marijuana might constitute a reasonable accommodation available to a qualified handicapped employee even if the employer has a no-tolerance drug policy or federal law prohibits the possession of marijuana. When the use of medical marijuana is proposed as an accommodation by a qualified handicapped employee, employers must engage in the interactive process to determine whether it is reasonable and, if not, whether another reasonable accommodation exists. 

Foreign litigants recently successfully sought the assistance of the United States District Court for the District of Massachusetts in obtaining discovery of Massachusetts residents and a Massachusetts company for use in a foreign proceeding.  See In re Penner, No. 17-CV-12136-IT, 2017 WL 5632658 (D. Mass. Nov. 22, 2017).  The foreign litigants in that case relied on a Federal Statute, 28 U.S.C. § 1782, that permits U.S. District Courts to order discovery for use in foreign proceedings under certain circumstances.  Section 1782 provides, in pertinent part, "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal."  In granting discovery pursuant to Section 1782, the Penner court relied upon the United States Supreme Court's analysis of that statute in Intel Corp. v. Advanced Micro Devices, Inc. 

The Massachusetts Appeals Court recently denied a mortgagee's attempt to invoke the doctrine of equitable subrogation to hold the surviving spouse of a mortgagor liable for a second mortgage on their residence--owned by the married couple as tenants in the entirety--that had been procured and signed only by the deceased spouse. 

The Court of Appeals for the Eleventh Circuit will be the next body to weigh in on a dispute between Del Monte International GmbH ("Del Monte") and Inversions y Procesadora Tropical INPROTSA, S.A. ("INPROTSA") over an exclusive sales agreement for pineapples. The case has been appealed to the Eleventh Circuit, and the appeal raises issues of the finality of international arbitration awards.

In a recent Superior Court decision, a judge held that there is a presumption that courts, not arbitral tribunals, have exclusive jurisdiction over the issue of whether a party has waived a contractual right to arbitration by engaging in substantial litigation before a motion to compel arbitration was filed.

On Wednesday, November 1, 2017, President Donald Trump signed legislation repealing an anti-arbitration rule that the Consumer Financial Protection Bureau ("CFPB") had promulgated in early July.  Repeal of the CFPB rule was welcomed by representatives of the financial services industry.

The American Arbitration Association ("AAA") has announced on its website that it is offering a "Streamlined Three-Arbitrator Panel Option" for large, complex cases.  It's a fresh idea that is worthy of parties' consideration in cases where the rules (see Section L-2(a)) or the parties' agreement requires a panel of three arbitrators to hear and decide the case. The Streamlined Three-Arbitrator Panel Option allows a single arbitrator to work with the parties in moving the case through the preliminary and discovery stages. A full panel participates in the evidentiary hearing and in rendering the final award.

On June 12, 2017, the United States Supreme Court decided a case captioned Henson v. Santander Consumer USA, Inc., No. 16-349.  In an opinion authored by newly-appointed Justice Neil Gorsuch and hailed by the financial services industry, the unanimous Court held that a company may collect debts that it purchased for its own account without implicating the statutory definition of "debt collector" set forth in the federal Fair Debt Collection Practices Act ("FDCPA").

Must all derivative suits in Massachusetts be preceded by a written demand that a company take action?  No. Members (shareholders) of a limited liability company seeking to bring suit derivatively on behalf of the LLC can do so without written demand.  

In a competitive real estate market like Greater Boston's, more homebuyers are agreeing to what previously would have been seen as a draconian contract term: purchasing a home without first conducting an inspection. But today, in a hot seller's market, it may be a buyer's best hope to landing the winning bid. The perils of buying a home before learning about things like the property's structural soundness would spook most anyone, not just the most risk adverse.  But what about the intangibles that even a traditional inspection wouldn't reveal? One Massachusetts statute defines the obligations of a seller of real property that is potentially "psychologically impacted." Specifically, G.L. ch. 93, § 114, carves out "alleged parapsychological or supernatural phenomenon" as a non-material fact, that is, information that does not need to be disclosed by a seller during a real estate transaction.  

In Leon v. Cormier the MA Appeals Court upheld a contempt judgment against a mother who violated a parenting coordinator's order related to the mother's e-mail communications with the father. Specifically, the parenting coordinator ("PC") ordered that "as a rule, emails between [the parties] should . . . occur during . . . designated Tuesday email time. The ONLY exceptions are in the case of significant emergency or a necessary change in logistics that must be established for something that is to occur prior to the next Tuesday email time."

The Massachusetts Appeals Court has issued a Rule 1:28 Memorandum and Order in a divorce case entitled Roof v. Abelowitz upholding the validity and enforceability of a prenuptial agreement that the wife signed only one day prior to the wedding.  The court considered two particularly interesting factors in finding that the wife's waiver of rights under the prenuptial agreement was valid.  In this case, the size and formality of the wedding and the prior married and divorced status of the wife carried weight.

A parent coordinator can be a blessing in high-conflict divorce or support cases involving parenting and custody of a child or children. Occasionally, parents, for one reason or another, are unable to communicate effectively about parenting time, extracurricular activities, or expectations of each other or the children. At other times, parents simply may not see eye-to-eye about what is in the best interests of the children. These disagreements, or differences as to how to communicate, can have serious repercussions on the stability of the children and make it difficult, if not impossible, to co-parent. A skilled parent coordinator can be a very valuable resource in addressing these issues and helping to resolve conflicts.

The Massachusetts Supreme Judicial Court ("SJC") has held that a bank's failure to comply with post-foreclosure notice provisions in Mass. G.L. c. 244, § 15A ("Section 15A"), does not render a foreclosure void.  Turra v. Deutsche Bank Trust Company Americas, 476 Mass. 1020 (2017).  The SJC's decision clarifies its prior rulings that appeared to state that any failure to comply with a provision appearing in Mass. G.L. c. 244, §§ 11-17C, rendered a foreclosure void.

Many clients describe the Rule 401 financial statement as "a giant pain," "putting square pegs into round holes," or "the most annoying thing I've ever done in my life." While filling out a financial statement can often be fairly simple, sometimes it can take days or even weeks of work. Filing a financial statement may actually happen many times over the course of a proceeding, and the parties may even choose informally to exchange financial statements on a voluntary basis. Why is it then, that almost every party to a domestic relations matter has to fill out a financial statement?

In a highly anticipated decision and the first judicial review of a Consumer Financial Protection Bureau ("CFPB" or the "Bureau") administrative enforcement action, the United States Court of Appeals for the District of Columbia Circuit ruled in October 2016 that the CFPB's single Director structure violated separation of powers principles and was unconstitutional. PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1 (D.C. Cir. 2016). 

A final question to the candidates during a recent presidential debate reminded me of a topic that often comes up in the context of co-parenting work in high-conflict cases, interviews by custody evaluators, questioning at depositions in custody disputes, documents submitted to a judge, and oral arguments at custody hearings or trials.

Recently, the #Airbnbwhileblack hashtag started floating around social media as a way to bring awareness to several reported instances of African Americans having issues with booking accommodations through Airbnb, a service that allows peer-to-peer short-term rentals of houses and apartments. Indeed, research has found that African-American users of Airbnb frequently encounter racial discrimination as they try to find a place to stay.

The Massachusetts Appeals Court, in a Rule 1:28 decision, has once again reaffirmed its holdings in Sullivan v. Kondaur Capital Corp., 85 Mass.App.Ct. 202 (2014) and Shea v. Federal Natl' Mort. Assn., et al., 87 Mass.App.Ct. 901 (2015), that the Mortgage Electronic Registration Systems, Inc. ("MERS") system of mortgage assignments comports with Massachusetts law.  The Appeals Court further reaffirmed that MERS' status as mortgagee, even "solely as nominee for [lender] and [lender]'s successors and assigns," grants to MERS all the rights and powers of a mortgagee, including the right to foreclose and exercise the power of sale in the mortgage.  Epps v. Bank of America, N.A., et al., 15-P-1095, 2016 Mass. App. Unpub. LEXIS 974 (Oct. 11, 2016).

On August 30, 2016, President Obama signed the instrument of ratification for the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. A White House press release of the same date describes the Convention's "numerous groundbreaking provisions that, for the first time on a global scale, will establish uniform, simple, fast, and inexpensive procedures for the processing of international child support cases, which benefits children and those responsible for their care."  

The United States Court of Appeals for the Ninth Circuit has refused to reinstate a putative class-action suit accusing numerous banks and other mortgage servicers of fraudulently enticing mortgagors into applying for mortgage loan modifications to continue collecting servicing fees prior to foreclosure.  The Ninth Circuit panel agreed with the United States District Court for the Central District of California and the defendants that the servicers were not at fault for the foreclosures where the borrowers failed to pay their mortgages.  Casault v. OneWest Bank, et al., 2016 WL 4137656 (9th Cir. Aug. 4, 2016).

In a highly anticipated decision, the Federal Circuit recently issued an opinion denying a request made by TC Heartland LLC ("Heartland") for new restrictions on where patent suits can be filed.  In Re TC Heartland LLC, No. 2016-105, slip. op. (Fed. Cir. April 29, 2016).  

In AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the United States Supreme Court ruled that the Federal Arbitration Act preempts state laws that prohibit consumer contracts from disallowing class-wide arbitration.  On May 5, 2016, however, the Federal Consumer Financial Protection Bureau (CFPB) proposed a new rule that would restore consumer's rights to bring class action lawsuits against banks and other certain financial firms.

In a post-foreclosure lawsuit, Santos v. U.S. Bank National Association, et al., 2016 WL 3636049 (Mass.App.Ct. 2016), a borrower ("Santos") alleged inter alia that a foreclosing mortgagee ("U.S. Bank") and its loan servicer negligently handled his applications for a HAMP loan modification.  Santos argued that the defendants "negligently failed to adhere to the HAMP guidelines in processing his loan modification applications." 

HAMP was implemented in response to the 2008 financial and housing crisis.  Congress enacted the Emergency Economic Stabilization Act of 2008, which led to the Making Home Affordable Program introduced by the Secretary of Treasury ("Treasury"), from which HAMP is derived.  HAMP was designed to provide some relief to homeowners facing foreclosure by encouraging loan servicers to offer loan modification agreements that reduce mortgage payments.  For each permanent loan modification completed, the loan servicer receives incentive payments (consisting of $1,000 per modification and other incentives).  If a loan is not owned or guaranteed by the Federal National Mortgage Association ("Fannie Mae), then a loan servicer may elect to participate in HAMP by executing a Servicer Participation Agreement ("SPA") with Fannie Mae, in its capacity as financial agent for the United States.  The Treasury and Fannie Mae issued HAMP guidelines but the enforcement of HAMP is the responsibility of Federal Home Loan Mortgage Corporation ("Freddie Mac").  

In 2009, U.S. Bank executed an SPA with Fannie Mae.  Prior to the foreclosure of his home, Santos applied multiple times for a loan modification under HAMP.  Santos participated in a three-month temporary plan as part of the HAMP application process.  His applications for a permanent loan modification agreement under HAMP, however, were ultimately denied by U.S. Bank and its loan servicer.  Thereafter, the foreclosure sale took place.  While a post-foreclosure summary process (i.e., eviction) action against Santos initiated by U.S. Bank was pending, Santos filed a separate suit against U.S. Bank and the loan servicer.

Santos argued that U.S. Bank and its loan servicer were negligent in handling his loan applications under HAMP.  The Appeals Court rejected Santos' argument.  In doing so, the Appeals Court relied on the well-established principle in the First Circuit that HAMP does not create a duty of care owed by a mortgagee to a borrower, which essentially represents the general consensus among courts across the country that "there is no private right of action under HAMP and that borrowers are not intended third-party beneficiaries of SPAs or similar contract between lending banks and Fannie Mae." 

Since HAMP is a federal program, the Appeals Court recognized that issues related to the interpretation of the HAMP contract, such as a private right of action or intended beneficiary status, are largely controlled by federal law.   The concept of duty of care - the Appeals Court explained - is determined by applying state common law principles.

  Adopting the reasoning and analysis of the majority of courts across the country, the Appeals Court concluded that "under Massachusetts law, HAMP does not impose a duty of care owed by lenders banks and servicers to borrowers."  Consequently, the Appeals Court ruled that Santos' negligence claim fails as a matter of law.

This case should put an end to the borrowers' efforts in Massachusetts to assert, against lending banks, negligence claims based on the HAMP guidelines.

We invite you to learn more about Fitch Law Partners LLP's banking law practice on our website.

The 7th Circuit Court of Appeals recently created a schism between the Circuits that may lead to the Supreme Court's intervention on an important issue: whether an employer may bar employees from bringing class action claims by requiring claims to be arbitrated. The 7th Circuit, in deciding that employers cannot do so, has diverged from the 5th Circuit, leaving a circuit split that the Supreme Court will now likely be compelled to resolve.

The Massachusetts Division of Banks (the "Division") has issued a letter to Non-Bank ATM Registrants in the Commonwealth to warn them about a "concerning increase" in ATM skimming fraud.  The Division's March 16, 2016 letter is published on its website.

Prior to walking down the aisle in 2014, celebrity power-couple Kanye West and Kim Kardashian entered into a prenuptial agreement, a fact that was far from surprising given that Forbes pegged the parties' respective net worths at $100 million and $40 million dollars, approximately. While prenuptial agreements for the ultra-rich are nothing new or noteworthy, it was West's alleged financial woes, not his fortune, that recently made waves across the internet. The hip-hop mogul took to Twitter last month to bemoan that he was $53 million in "personal debt". 

West's bizarre outbursts left many scratching their heads as to how the numbers added up, particularly in light of the fact that the artist earned more than $22 million last year and his wife a cool $55 million. Sources close to West quickly clarified that the $53 million dollar sum was not, in fact, "debt" in the traditional sense, but the total amount of personal funds that the artist had invested into his own companies.

As President Obama meets with Asian leaders this week, his conversations with Chinese president Xi Jinping will surely touch on what has become a contentious topic with deep implications in the international community - namely, the rise of Chinese expansionism into the South China Sea. This, in turn, will reverberate on the international order and ability of countries to hold each other accountable under international treaties.

China has expanded its military footprint in the South China Sea, pushing troops and installations further and further away from its mainland. By picking up an island here and an island there, China gives itself greater control over important shipping lanes, However, as more and more countries along the South China Sea are decrying, these incursions can be construed as breaches of their territory and sovereignty. 

A silver lining to finding oneself involved in a property dispute is the opportunity to resolve the issue in one of the Commonwealth's specialized courts, the Massachusetts Land Court. The types of legal disputes that Land Court judges decide vary in type and scope, but they all touch upon real property. The Land Court's docket contains cases involving foreclosures, challenges to subdivision plans, and boundary disputes, among others. Pursuant to General Laws Chapter 185, the Land Court has exclusive jurisdiction over some issues and concurrent jurisdiction over others. 

The Connecticut Supreme Court has upheld state legislation imposing an aggregate fee increase of approximately $5 million for mortgages recorded in Connecticut registries by Mortgage Electronic Registration Systems, Inc. ("MERS"). See MERSCORP Holdings Inc., et al. v. Malloy, No. SC19376, 2016 WL 510244 (Conn. Feb. 8, 2016). As noted previously in this blog on April 11, 2014, and August 7, 2015, certain government entities in Texas and Louisiana failed in their attempts to recoup fees from MERS by alleging violations of federal RICO statutes or by asserting claims for unjust enrichment. Connecticut chose instead to legislatively impose significantly higher recording fees for MERS than for other mortgage companies.

MERS is an organization that allows for the transfer of mortgages among its member banks without the need for a new recording in the applicable registry of deeds for each transfer. MERS typically appoints employees of its member banks as officers or secretaries of MERS, who then have the power to assign mortgages to other members, or from other members to themselves.  Throughout any transfer, MERS remains the mortgagee of record for the benefit of the member bank currently holding the note that the given mortgage secures.

In Armenian Missionary Association of America, Inc. v. TD Bank, N.A., et al, 87 UCC Rep. Serv. 2d 766 (D.N.J. 2015), the United States District Court for the District of New Jersey dismissed check fraud claims brought against TD Bank N.A. ("TD"). Plaintiff Armenian Missionary Association of America, Inc. ("AMAA" or "Plaintiff"), a non-profit organization that relies on donations to provide aid and assistance to Armenians throughout the world, sued TD after it discovered a series of alleged thefts by its former employee, Tigran Melkonyan, of over $800,000.00.

Melkonyan was employed by AMMA from August, 1999 until his resignation in April, 2014. His job duties centered on AMMA's child sponsorship and child education programs, but on certain occasions he was asked to go to the bank to deposit donation checks when the person typically responsible for depositing such checks was unavailable.   

In a ruling that brings certainty to employers and employees, this month the Massachusetts Supreme Judicial Court issued two opinions concerning workers' compensation benefits, specifically, the scope of an insurer's lien. Generally, under G.L. c. 152, the workers' compensation statute, most private employers in Massachusetts are mandated to purchase workers' compensation insurance or qualify as self-insured. The law enables employees to receive benefits after on-the-job injuries, but prohibits them from suing their employers. Under Chapter 152, injured employees can recover payment for damages such as medical expenses, rehabilitation costs, and lost wages. However, they cannot recover compensation for pain and suffering.

While employers participating in the workers' compensation program are essentially granted immunity from suit by injured employees, the statue does not grant third parties similar protection. The result is that a worker may recover under the workers' compensation program from his or her employer's insurer and still sue third parties for damages. The scope of potential recovery from such third party suits is not governed by the workers' compensation statute, and employees may recover damages for pain and suffering. However, to avoid a potential "double recovery," G.L. c. 152, § 15 entitles an employer's insurer to a lien on any third party recovery in the amount paid by the insurer to the employee. An employee is entitled to keep any amount of recovery that exceeds what the insurer paid in workers' compensation benefits.

With the advent - and ubiquity - of the internet and social media has come an exponential increase in the potential for the publication of negative statements about individuals, corporations, or other entities. While such statements may hurt feelings, thanks to the First Amendment they may not provide the basis for legal action in Massachusetts unless they meet the standard for defamation, which encompasses libel (written words) and slander (spoken words). See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30 (2003). To succeed, a defamation plaintiff must prove the following: (1) the defendant made a statement "of and concerning" the plaintiff, to a third party; (2) the statement could damage the plaintiff's reputation in the community; (3) the defendant was at fault in making the statement, whether negligently where the subject is a private individual or with actual malice in the case of a public official or public figure; and (4) the statement caused the plaintiff economic harm or otherwise fits four specific criteria to be actionable without proof of economic loss. Scholz v. Delp, 473 Mass. 242, 249 (2015). Regarding (3), above, the First Amendment grants greater protection to statements made about public figures or about matters of public concern, making defamation claims in those contexts significantly more difficult to prove. 

Two recent decisions have clarified the scope and effect Section 131(g)(1) of the Truth-in-Lending Act's ("TILA"), which requires that a borrower be notified within 30-days of the sale, transfer, or assignment of a mortgage loan to a new owner.  15 U.S.C. § 1641(g)(1).  Section 131(g) states that "not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer," and include information regarding the new creditor.  The section was added to the law to provide notice of a change in ownership of the mortgage debt or note, in addition to the previously required notice of a change in the servicer of the loan.

In an issue of first impression for the circuit, the U.S. Court of Appeals for the Ninth Circuit has held that the provisions of Section 131(g)(1), effective May 20, 2009, are not retroactive. In response to a claim that a 2006 transfer of a loan without notice violated TILA, the Ninth Circuit reasoned that to impose a retroactive application of the notice requirement would impair the rights that the banks possessed when they acted, as well as impose liability and new duties on the banks for transactions already completed.  Talaie v. Wells Fargo Bank, N.A., No. 13-56312, 2015 WL 8606014 (9th Cir., Dec. 14, 2015).  Given the concerns expressed by the Supreme Court regarding retroactive application of statues in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the Ninth Circuit declined to impose the notice requirement retroactively.

In a recent appeal arising from a post-divorce modification action, Hoegen v. Hoegen (14-P-1491), the Massachusetts Appeals Court decided that income realized from vested restricted stock units (RSUs) must be included in the calculation of child support.

In doing so, the Appeals Court reversed the decision of the trial court judge, who found that "the mother did not prove that the father's income from [RSU] should be included in calculating child support as there was no evidence that said [RSU] income was not derived from the stock plan listed as an asset on the father's financial statement at the time of the divorce and in which any interest of the mother in said stock plan was waived by the mother in the parties' separation agreement."