The foreclosure process is in shambles thanks, in part, to the substitution of county clerks or other registrars with the Mortgage Electronic Registration System (MERS) and the transition from reliance on pooling and servicing agreements (PSAs) as evidence of title to reliance on post-foreclosure sale assignments. MERS sacrificed accuracy for efficiency, allowing the practice of robosigning to run rampant. As a result, many false documents were filed, often resulting in the transfer of bad title. In U.S. Bank National Ass’n v. Ibanez, the Massachusetts Supreme Court held that while post-foreclosure sale assignment documents did not act as evidence of clear title, the PSA did act as an element of proof of transfer. To prevent wrongful foreclosure, fraudulent activity, and rampant errors in the mortgage recording and foreclosure systems, this Article recommends that courts should follow in line with Ibanez and require an original or copy of a document executed at the time of the transfer transaction to prove clear title; courts and attorneys should not rely on assignment documents; sanctions should be brought against violators; and legislation should be passed that instructs the mortgage industry on how to secure good title and creates penalties for false or fraudulent documents.
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A great number of homes in Florida are subject to the rules of homeowners’ associations (HOAs). HOAs have the authority, pursuant to their recorded declarations, to establish HOA rules and powers and, perhaps most importantly, to level assessments. Given the recent economic downturn, more homes than ever are being foreclosed upon and falling into the hands of financial institutions and lenders, and many of these properties are subject to unpaid assessments from HOAs. Liability for such assessment can sometimes survive the transfer of title through foreclosure and post-foreclosure sale; however, determining the amount of unpaid assessments owed by a new homeowner to an HOA can be quite difficult. This Article outlines the foundations of liability for assessments, the depth of assessment, and the extent of HOA powers regarding such assessments. It also analyzes the inherent conflict between HOA declarations and the Florida statutory provisions regarding HOA assessments. Because a Florida statute now permits joint and several liability amongst subsequent mortgagees or assignees with regard to unpaid HOA assessments, it is unclear whether financial institutions can limit their liability for unpaid HOA assessments through the HOA declaration itself, or whether the statute somehow alters the legal landscape. It is this paradoxical dynamic, created by the failure of a previous mortgagee to pay debts owed to both the lending institution and the HOA, that forms the backdrop for this problem, and for which this Article seeks to provide much-needed clarification.
The current state of the American foreclosure crisis requires general practitioners to be knowledgeable of the various legal avenues available to assist clients facing foreclosure. In this Article, the Author explains the various consequences of foreclosure, including deficiencies, income tax consequences, and the impact a foreclosure has on one’s credit score. The Author also discusses the difference between judicial and nonjudicial foreclosures, describes foreclosure defense tactics, and examines mediation as an alternative to foreclosure. This Article gives a brief overview of the Chapter 7 and Chapter 13 bankruptcy processes and explains the alternative process of stopping a foreclosure with a deed in lieu, short sale, loan modification, refinance, or redemption. This Article also examines the homeowner’s option of either renting or staying in the foreclosed home and explains the process for setting aside a foreclosure sale. Throughout this Article, the Author highlights the emotional hardship caused by foreclosure and emphasizes the necessity of creating individualized foreclosure defense plans to guide clients through this challenging process and potentially save their homes.
Courts have historically balanced the interests of copyright and new technology, but the standard for allowing defendants in file-sharing copyright actions to be identified, or “unmasked,” must be raised to comply with the First Amendment, Federal Rules of Civil Procedure, and U.S. Supreme Court jurisprudence. Recently, file-sharing software use has become more prevalent, creating tension with copyright interests. This tension resulted in massive litigation, which led to Digital Millennium Copyright Act subpoenas and, more recently, John Doe suits. With this increased litigation comes the problem of when courts can unmask defendants. This Article argues that the standard for allowing defendants to be unmasked is too low and should be raised to require both personal jurisdiction and a plausible basis for relief from the defendant to be identified.
There has been a great deal of inconsistency in the area of arbitration discovery, especially relating to nonparty witnesses. This Article argues that these inconsistencies have led to two unresolved issues: (1) federal courts disagree as to whether the Federal Arbitration Act authorizes nonparty subpoenas outside of an actual arbitration hearing; and (2) properly issued subpoenas to nonparties residing outside of the arbitration site’s jurisdiction may not be enforceable due to a gap between the Federal Arbitration Act and the Federal Rules of Civil Procedure. This Article discusses how recent caselaw has dealt with both of these issues. This Article also explains how these inconsistencies have led to limited, if any, prehearing nonparty discovery, and how properly issued subpoenas to nonparty witnesses may lack enforcement power. This Article suggests that Congress amend the Federal Arbitration Act to expand nonparty discovery and to allow for subpoena enforcement from the district court in a witness’s jurisdiction, and this Article then explores the benefits that may derive from these changes, suggesting that the amendment would make the arbitration process more just and consistent.
The Affordable Care Act (ACA), the result of two pieces of legislation passed by Congress in 2010, is likely to produce significant impacts on most aspects of the American healthcare industry. This Article focuses on two possible philosophical and operational approaches to healthcare reform: supply-side regulation and demand-side policy interventions. The Author asserts that the general philosophical and operational approach taken in the ACA is that of supply-side regulation. The Author states that this approach is paternalistic (the government knows best and consumers are uneducable) and contends that, for the most part, the ACA fails to allow individual healthcare consumers to take an active role in improving healthcare quality, access, and affordability. This is argued to be a missed opportunity to gain the advantages offered by a robust healthcare marketplace that could be garnered by focusing on demand-side policy interventions rather than supply-side regulation.
The Author begins by giving a background of the supply-side concentration that the ACA has embraced. This background includes specific examples and explanation of this supply-side concentration such as: diminishing Medicare Advantage plans, establishing the Independent Payment Advisory Board, and enacting measures that essentially prohibit private insurers from taking part in traditional underwriting. This provides an outline of the expansion of the federal government’s role in healthcare financing and delivery under the ACA.
The Article then discusses the ACA’s failure to consider the demand side of the healthcare debate and to give consumers more respect and involvement in the improvement of healthcare quality, access, and affordability. The Author argues that even if many Medicare beneficiaries do not currently have the education to take part as active healthcare coverage consumers, the correct response is not the ACA’s paternalism, but rather is to develop resources to enhance consumer knowledge and create a better environment of information exchange. Next, the Author points out that, although the majority of the ACA focuses on the need for government to take care of consumers who are unable to make their own healthcare choices, the ACA section on Comparative Effectiveness Research and its authorization to financially support a Patient Centered Outcomes Research Institute shows faith in consumer decision-making in complex medical decisions.
The Article then uses specific examples of proposals for conversion of the traditional entitlement structure of Medicare to a premium support program to show the possibilities a greater consumer focus could provide. These proposals entail a more positive vision of consumers and their abilities to take part in the healthcare market. These specific proposals are then used to present rationales for demand-side policy interventions. The Article presents the argument that the defined contribution and voucher approaches to healthcare promote respect and self-determination with regard to an individual’s healthcare. Additionally, these programs would allow consumers not traditionally involved in the private health insurance marketplace to enter that marketplace and purchase private insurance coverage, promoting greater equality in medical treatment.
The Author concludes that the paternalist philosophy of the ACA threatens to make the prospect of future market failure in the healthcare arena a reality and that policy changes can improve the healthcare market, but only if opportunities to focus on the demand side of healthcare are pursued.
This Article examines the implications of the Affordable Care Act (ACA) on healthcare fraud-a problem that is responsible for roughly sixty billion dollars per year in Medicaid expenditures. By contextualizing the ACA’s changes within the purpose and policy goals of preexisting fraud law, this Article asserts that the ACA will lead to a “tighter, stricter, and more exacting” climate for healthcare providers. One example of such a change is the inclusion of new provider enrollment barriers-while these barriers make it more difficult for fraudulent providers to enter and exploit the Medicare billing system, they also impose a hardship on existing providers who must devote additional resources to preserve their billing privileges under the new enrollment architecture. The ACA also modifies the False Claims Act by lowering the evidentiary bar for qui tam relators, thereby improving the chances that the government will discover and prosecute parties who have made fraudulent claims. The ACA also modifies the Physician Self-Referral Law (or “Stark Law”) to require, among other things, that physicians provide patients with a list of alternative ancillary-service providers when requiring patients to undergo ancillary services such as diagnostic imaging. Finally, the Article argues that the Affordable Care Act equips the Anti-Kickback Statute with sharper teeth by altering the scienter requirement. The Article concludes that, although the ACA does not revolutionize preexisting fraud law, Congress clearly designed it to facilitate a new era of enforcement that aims to recover tens of billions of dollars from providers who commit fraud and to deter future instances of provider fraud.
Freedom of speech, enshrined in the First Amendment, drastically limits the government’s ability to both regulate speech and to compel speech. Against that backdrop, this Article addresses the constitutionality of the federal government’s recent attempt to require tobacco companies to furnish cigarette packages with graphic images depicting the harmful health effects associated with smoking. In doing so, the Author examines the tension between the governmental interest in conveying information regarding the dangers of tobacco usage and the First Amendment implications in compelling commercial speech. Tobacco companies responded to the new requirements with litigation, and the Article discusses the resulting circuit split as to both the appropriate standard of scrutiny to use in evaluating the graphic warnings and their ultimate constitutionality. The Article suggests that the decision of which level of scrutiny to apply-rational basis review, intermediate scrutiny, or strict scrutiny-is of keystone importance, because it essentially dictates a court’s conclusion as to constitutionality of compelling the placement of graphic warnings on tobacco packaging. Included in this analysis is a historical examination of the evolving governmental regulation of tobacco packaging and the federal government’s rationale in now requiring tobacco manufacturers to place graphic warnings on cigarette packages. Finally, the Author forecasts the possibility of a Supreme Court decision to resolve the circuit split and contends that the Supreme Court should apply heightened scrutiny in gauging the constitutionality of the graphic warnings.
This Article provides an in-depth look at how the right to trial by jury should remain unabridged by any act of legislation. A state legislature should not have the power to override a jury’s determination and impose an artificial cap on the amount of damages to be awarded. In Estate of McCall v. United States, the plaintiff was originally awarded nearly two million dollars in non-economic damages, but then pursuant to Florida’s statutory cap on medical malpractice damages, the amount was reduced. The right to trial by jury is a fundamental right, and the jury’s right to address damages is an underlying tenant. Florida’s damage cap fails the strict scrutiny analysis, because there is no compelling state interest nor is it fulfilled by the least restrictive means available. In conclusion, the Author suggests that the Florida Supreme Court should strike down the statutory cap on non-economic damages in medical malpractice cases on the ground that it violates the fundamental right to trial by jury.