PMENTS.

ATTORNEYS/LEGAL SERVICES

Petitioner Awarded Attorney Fees in an Administrative Proceeding Involving Discipline of His Barber's License

42,009. Robaina v. Department of Professional Regulation, No. 87-1242F (Fla. Div. of Admin. Hearings July 9, 1987). Petitioner represented by Isidro Garcia, Florida Rural Legal Services, 572 S.W. Second St., Belle Glade, FL 33430, (305) 996-5266. [Here reported: (Accession No. 1010128) 42,009A Respondent's Proposed Findings of Fact & Conclusions of Law (3pp.); 42,009B Recommended Order (6pp.); 42,009C Respondent's Motion for Attorney's Fees & Costs (5pp.); 42,009D Final Order (2pp.); 42,009E Response to Motion for Attorney's Fees & Costs (5pp.); 42,009F Petitioner's Reply to Response to Motion for Attorney's Fees & Costs (4pp.); 42,009G Final Order (5pp.).]

The Florida Division of Administrative Hearings has ordered the state Department of Professional Regulation (DPR) to pay attorney fees and costs in the amount of $1,992 to petitioner under the Florida Equal Access to Justice Act (FEAJA). Petitioner requested attorney fees and costs as the prevailing party in an administrative proceeding involving discipline of his barber's license. He was charged with operation of a barber shop without a shop license. Although petitioner had a barber's license and occupational licenses, he did not understand that he was required also to have a shop license. As soon as an investigator explained the requirement to him, petitioner applied for and obtained the license. The hearing officer conclud

A Guide to Fair Hearings

Nassau/Suffolk Law Services in New York has recently published A Guide to Fair Hearings for advocates and public assistance recipients. The guide was prepared to help people who represent themselves at welfare fair hearings by explaining how to request a fair hearing, how to prepare for it, and what to expect along the way. It will assist advocates or recipients in presenting a clear and complete description of their case at the hearing.

A copy of the 28-page booklet is available for $1.50 from Nassau/Suffolk Law Services Committee, Inc., 40 Park Ave., Bay Shore, NY 11706.

ed that, since petitioner's violation was not "willful or repeated" and the actions of DPR were not "substantially justified," petitioner was entitled to the fee award. Counsel notes that this is the first decision involving the FEAJA. However, the Act only applies to small businesses, so very few legal services clients will benefit from it.

BANKRUPTCY

Mortgagees Not Entitled to Counsel Fees for Post-Petition Services Unless Extraordinary Circumstances Are Shown

42,630. Nickleberry, Cheryl, In re, No. 86-03649S (Bankr. E.D. Pa. July 14, 1987). Debtor represented by Arthur Haywood, Community Legal Services, 3638 N. Broad St., Philadelphia, PA 19140, (215) 227-2400. [Here reported: (Accession No. 1010137) 42,630A Memo of Germantown Savings Bank (5pp.); 42,630B Debtor's Memo in Opp'n to Germantown Savings Bank's Motion for Relief from the Stay (7pp.); 42,630C Opinion (33pp.).]

The court has consolidated four bankruptcy cases and has held that mortgagees are not entitled to counsel fees for post-petition services unless extraordinary circumstances are shown. The bankruptcy actions were consolidated because they raise related questions about demands of mortgagees for counsel fees against their respective mortgagor-debtors. These questions arise in cases where the debtors seek to cure mortgage arrearages in Chapter 13 plans for the following categories of services performed by the mortgagees' counsel: (1) pre-petition services in state court foreclosure proceedings, and (2) postpetition services in the bankruptcy court. The court held that, as to the first category of services, state law controls, and reasonable counsel fees can be claimed. As to the second category of services, however, the court held that the Bankruptcy Code controls, and, unless all of the requirements of 11 U.S.C. § 506(b) are established or the matter fits into a narrowly defined class of extraordinary situations, mortgagees, like any other litigants, are not entitled to fees for any post-petition services. The court specifically declined to follow In re Cosby, 33 B.R. 949 (Bankr. E.D. Pa. 1983), an earlier decision that approved attorney fees for relief from stay litigation.

Bankruptcy Court Orders Emergency Mortgage Assistance Benefits Restored to Debtors

42,578. Watts v. Pennsylvania Hous. Fin. Co. (In re Watts), No. 86-03358S (Bankr. E.D. Pa. June 30, 1987). Plaintiffs represented by David Searles, Mary Jeffrey, Henry Sommer, Community Legal Services, 3156 Kensington Ave., Philadelphia, PA 19134, (215) 427-4850. [Here reported: (Accession No. 1010096) 42,578A Motion for Summary Judgment & Memo in Support (30pp.); 42,578B Plfs' Response to Def's Cross-Motion for Summary Judgment (9pp.); 42,578C Opinion (52pp.).]

The bankruptcy court has issued an order in this action granting plaintiff debtors' motion for class certification and declaring that defendant Pennsylvania Housing Finance Agency's (PHFA's) practice of terminating plaintiffs' Homeowners' Emergency Mortgage Assistance Act (HEMAP) benefits violates 11 U.S.C. §§ 525(a), 362(a)(3), and 42 U.S.C. § 1983. This action began after named plaintiffs fell behind in their home mortgage payments and subsequently applied for, and were granted, HEMAP benefits. PHFA agreed to bring the arrears up to date and, if needed, to award ongoing monthly assistance payments. Plaintiffs later filed for bankruptcy, and, after PHFA received notification of this, PHFA sent plaintiffs a form letter stating that plaintiffs' HEMAP benefits were going to be discontinued because of the bankruptcy petition. The bankruptcy court concluded that defendants' practice of discriminating against debtors in terminating HEMAP benefits violates 11 U.S.C. § 525(a) and the automatic stay imposed by 11 U.S.C. § 362(a)(3). Additionally, the court concluded that, in violating 11 U.S.C. §§ 525(a) and 362(a)(3), defendants' practices perforce violate 42 U.S.C. § 1983. The court also concluded that plaintiffs are entitled to declaratory and injunctive relief, as well as attorney fees, but not compensatory damages. Finally, the court ordered defendants to restore HEMAP benefits to plaintiffs within 20 days and to continue such benefits until there is some reason unrelated to their bankruptcy cases for termination.

Unadjudicated Incompetent Nursing Home Patient Is Entitled to File Chapter 13 Bankruptcy Petition by Next Friend

42,570. Zawisza, Maryann, In re, No. 87-00235S (Bankr. E.D. Pa. May 27, 1987). Debtor represented by Alison Hirschel, Niles Schore, Community Legal Services, 3638 N. Broad St., Philadelphia, PA 19140, (215) 227-2400; Mary Jeffery. [Here reported: (Accession No. 1010101) 42,570A Memo in Support of Debtor's Opp'n to Motion of Creditor Geriatric & Medical Services, Inc. to Dismiss Case (30pp.); 42,570B Brief of Creditor Geriatric & Medical Services, Inc. in Support of Motion to Dismiss the Case (15pp.); 42,570C Reply Brief of Debtor in Opp'n to Motion to Dismiss of Creditor Geriatric & Medical Services, Inc. (7pp.); 42,570D Supplemental Brief of Debtor Maryann Zawisza in Opp'n to Creditor Geriatric & Medical Services, Inc.'s Motion to Dismiss (4pp.); 42,570E Opinion (19pp.).]

The court has denied a creditor's motion to dismiss a nursing home patient's voluntary bankruptcy petition. The debt

or is an unadjudicated incompetent, whose attorney, as next friend, filed a Chapter 13 bankruptcy petition on her behalf, as she is responsible for a debt in excess of $30,000 owed to a private nursing home. The creditor then filed its motion to dismiss on the grounds that a mentally incompetent person is incapable of filing a voluntary bankruptcy petition; that debtor did not qualify as a person "with regular income," pursuant to 11 U.S.C. § 109(e) of the Bankruptcy Code; and that, alternatively, the only proper person to file such a petition is a courtappointed guardian. Debtor asserted that to deny the filing of her petition would violate her constitutional rights to equal protection and due process. The court held that an unadjudicated incompetent has both a statutory and constitutional right to file a voluntary bankruptcy petition and that a next friend is an appropriate party to file such a petition. It declared that there exists no explicit requirement in section 109(e) that an individual filing a Chapter 13 petition be competent, and that much caselaw supports the proposition that a guardian may file a voluntary bankruptcy petition on behalf of an incompetent where a court authorizes such a filing. Regarding whether a guardian or next friend may file on behalf of an incompetent without specific court authorization, the court found that a presumption of authority to file arises, and therefore no explicit court authorization is necessary, just as it is not needed in order for that person to take any other action on behalf of an incompetent. The court stated that it could not agree with the result of treating an incompetent, acting by her next friend, differently from a competent debtor by prohibiting the filing of a bankruptcy by an incompetent. It found that "the concept of allowing an involuntary bankruptcy to be filed against an incompetent, while not allowing the same incompetent, acting by her guardian or next friend, to do so is clearly irrational as being dissimilar treatment of the same individual based only upon the irrational distinction of who purportedly has the right to file a bankruptcy petition on the individual's behalf." The court held that to preclude debtor's filing would deny her a meaningful opportunity to be heard in violation of due process of law. As for creditor's argument that debtor cannot file if she does not have a regular income, the court held that, since it has no factual record that debtor does not have regular income as required by section 109(e), that basis alone suffices to require denial of creditor's motion to dismiss, and that Congress has specifically widened the category of those individuals eligible for relief under Chapter 13 to include those with any kind of income. Finally, the court held that, because Fed. R. Civ. P. 17(c) allows court filings generally by an incompetent's next friend, and when incorporated with Bankruptcy Rule 7017 it permits the next friend to initiate or defend an adversarial bankruptcy proceeding, a next friend is a proper party to file a voluntary petition for an incompetent.

CIVIL PROCEDURE/ADMINISTRATIVE LAW

Briefs Filed in Eleventh Circuit After Lower Court Denies USDA's Motion to Modify 1977 Consent Decree

19,468. Williams v. Butz, No. 87-8094 (11th Cir. filed June

15, 1987). Plaintiffs-Appellees represented by Kay Young, M. Ayres Gardner, Phyllis Holmen, John Cromartie, Jr., Georgia Legal Services Program, 133 Luckie St., Atlanta, GA 30303, (404) 656-6021. [Here reported: (Accession No. 1010080) 19,468 Y Brief for Plfs-Appellees (67pp.). Previously reported at 21 CLEARINGHOUSE REV. 275 (July 1987).]

Briefs have been filed in the Eleventh Circuit arguing whether the lower court properly denied USDA's motion to modify the consent decree in this class action challenging USDA's foreclosure procedures. Plaintiff class consists of homeowners who financed their homes under Section 502 of the National Housing Act. After the lower court denied USDA's motion to modify a 1977 consent decree, it later awarded plaintiffs attorney fees under the EAJA. The government now argues that the consent decree should be vacated and that the decree restricts the USDA's exercise of discretion. Plaintiffs argue that the lower court considered whether it was equitable to modify the consent decree and then correctly held that, under Fed. R. Civ. P. 60(b)(5), USDA had not made the required showing of exceptional circumstances. In addition, plaintiffs argue that the issues concerning the validity of the consent decree and the constitutional challenge to USDA's exercise of discretion are not reviewable because they were not raised in the court below.

Case Refiled in District Court After Dismissal on Grounds of Bankruptcy Abstention

40,893. Anderson v. Landbank Equity Corp., No. 85-01541-N (E.D. Va. Jan. 21, 1987). Plaintiffs represented by Gilman Roberts, Tidewater Legal Aid Society, 100 Plume Center West, Suite 433, Norfolk, VA 23510, (804) 627-5423; Ian DeWaal, Kathleen Keest. [Here reported: (Accession No. 1010077) 40,893Z-1 Order (8pp.); 40,893Z-2 Memo in Support of Plfs' Motion to Amend Judgment & to Lift Stay (8pp.); 40,893Z-3 Memo in Opp'n to Motion to Amend Judgment (13pp.); 40,893Z-4 Plfs' Reply Brief in Support of Motion to Amend Judgment & Lift the Stay (20pp.); 40,893Z-5 Order (4pp.). Previously reported at 20 Clearinghouse Rev. 967 (Dec. 1986).] 42,568. Anderson v. Federal Nat'l Mortgage Ass'n, No. 870236-R (E.D. Va. June 23, 1987). Plaintiffs represented by David Rubenstein, Rappahannock Legal Services, 910 Princess Anne St., Fredricksburg, VA 22401, (703) 371-1105; Gilman Roberts, Theophlise Twitty, Ian DeWaal, Kathleen Keest. [Here reported: (Accession No. 1010090) 42,568A Class Action Complaint (69pp.); 42,568B Memo in Support of Motion to Dismiss or in the Alternative to Transfer (43pp.); 42,568C Plfs' Memo Opposing Motion to Either Dismiss or in the Alternative, Transfer to Norfolk Division (43pp.); 42,568D Answer & Counterclaim by Perpetual Savings Bank, FSB (17pp.); 42,568E Answer by Home Unity Savings and Loan Ass'n (13pp.); 42,568F Answer & Counterclaim of First Federal Savings & Loan Ass'n of Seminole (13pp.); 42,568G Answer & Counterclaim of First Federal Savings & Loan Ass'n of South Carolina (18pp.); 42,568H Answer & Counterclaim by Yankee Bank for Finance & Savings, FSB (15pp.); 42,568-I Answer & Counterclaim of Comfed Savings Bank (14pp.); 42,568J Answer & Counterclaim of Federal National Mortgage Ass'n (18pp.); 42,568K Memo in Support of Motion to Dismiss (47pp.); 42,568L Reply

Memo in Support of Motion to Dismiss or in the Alternative to Transfer (14pp.); 42,568M Plfs' Memo Opposing Motion to Dismiss (103pp.); 42,568N Answer & Counterclaim of Southeast Mortgage Corp. (15pp.); 42,568-0 Order (2pp.).]

This action, initially an adversary proceeding in the Bankruptcy Court of the Eastern District of Virginia, Norfolk Division, has been refiled as Anderson v. Federal National Mortgage Association in Richmond Division. The new action is basically identical to the previous bankruptcy adversary proceeding with the major exception of the restating and reorganization of the causes of action. The case involves Landbank Equity Corporation, a Virginia-based mortgage lending company, and its subsidiary's practice of lending money to plaintiffs who have a bad credit history but who also have equity in real estate, and charging them unconscionably high interest rates as well as excessive amounts for mortgage guaranty insurance and appraisals. The bankruptcy court abstained from exercising jurisdiction over the action, finding that it was not the appropriate forum for plaintiffs' claims. The court found that plaintiffs' claims arising under state law should be heard in the state courts and that their federal claims could be refiled in federal district court. Upon review, the district court, sitting as a bankruptcy court, affirmed the bankruptcy court's decision to abstain and directed plaintiffs to refile their claims in the state court and the federal district court. Plaintiffs moved to have the court amend the judgment of dismissal and retain jurisdiction over the federal claim, and to lift the automatic stay imposed under 11 U.S.C. § 362 at the time defendant filed for bankruptcy so that defendant could be named in the state court action. In denying plaintiffs' motion, the court held that (1) it did not err in dismissing plaintiffs' suit with prejudice; (2) its action was not analogous to a Pullman abstention and that, accordingly, it did not have to retain jurisdiction pending resolution of the state law issues; and (3) it could not lift the stay, because it had dismissed the adversary proceeding and referred the bankruptcy proceeding to the bankruptcy court, to which plaintiffs must apply for relief under section 362.

Rather than pursuing their state law claims in state court and refiling their federal claims in federal district court, plaintiffs have refiled both their state and federal claims in the district court. In this new proceeding, plaintiffs have omitted Landbank as a defendant due to the continued existence of the bankruptcy stay, although they intend to apply to have the stay lifted and to have Landbank added as a defendant. Instead, they have brought suit against several savings and loan institutions that are now holders of the loans originated by Landbank. Plaintiffs allege that defendants are liable for Landbank's state and federal statutory violations because (1) defendants should have known that the whole loans and participation shares purchased from Landbank were being collected at a rate greater than the rate stated on plaintiffs' notes; (2) defendants failed to inquire or investigate whether a registration had been filed or was in effect prior to the purchase of securities from Landbank that were not registered with the Securities and Exchange Commission; and (3) defendants have used and continue to use the U.S. mails in order to collect monetary payments on loans that include illegal and fraudulent fees and charges, and other monies obtained through false and fraudulent pretenses. Defendants moved for a transfer of venue back to the Norfolk Division, but the district court denied this motion.

CONSUMER

Court Certifies Class in Action Challenging Bank's Practice of Requiring Large Escrow Deposits of Mortgagors

40,791. Leff v. Olympic Fed. Sav. & Loan Ass'n, No. 86 C 3026 (N.D. Ill. June 18, 1987). Plaintiff represented by Daniel Edelman, 20 E. Jackson Blvd., Chicago, IL 60604. [Here reported: (Accession No. 1010078) 40,791C Memo Opinion & Order (17pp.). Previously reported at 20 CLEARINGhouse Rev. 970 (Dec. 1986).]

The district court has granted plaintiff's motion for class certification in this action against defendant savings and loan association, a lender from whom the plaintiff obtained a residential mortgage. Plaintiff alleges that defendant required mortgagors to deposit more money into their escrow accounts than required under the mortgage contract, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961, as well as Illinois law, and in breach of contract. Plaintiff obtained a mortgage from defendant that was issued on a standard, government-prescribed form, which required mortgagors to deposit one twelfth of the amount of annual taxes and insurance in an escrow account each month to ensure payment of property taxes and property insurance premiums. The interest income from these escrow deposits is retained by defendant. Plaintiff alleges that defendant determined its actual escrow deposit requirements using a mathematical formula, or "algorithm," that resulted in payments substantially in excess of one twelfth of annual taxes and insurance. He claims that, through this practice, defendant has obtained the use of millions of dollars of its mortgagors' money to which it is not entitled. Plaintiff seeks declaratory and injunctive relief and money damages in the amount allegedly held in excess of the legitimate deposit, plus interest. Pursuant to Fed. R. Civ. P. 23, the court ordered the class to be certified to include all persons who (1) were obligated on a residential real estate mortgage issued on the 1977 Uniform Instrument for one- to four-family Illinois residences promulgated by the Federal National Mortgage Association and the Federal Home Mortgage Corporation, or on a form imposing the same escrow deposit requirements; (2) paid money into an escrow account on which defendant received the interest or earnings; and (3) had their escrow deposits computed by defendant using the same formula as was used in plaintiff's case.

Collection Law Firm Agrees to Cease Practice of Levying and Selling Exempt Personal Property of Judgment Debtors

42,629. Prillerman v. Weltman, Weinberg & Assocs., No. C86-5257 (N.D. Ohio June 16, 1987). Plaintiff represented by Paul Herdeg, Harold Williams, Legal Aid Society of Cleveland, 1223 W. 6th St., Cleveland, OH 44113, (216) 687-1900. [Here reported: (Accession No. 1010136) 42,629A Complaint for Declaratory Relief & Damages (12pp.); 42,629B Stipulation of Dismissal & Order (6pp.).]

A consent order has been entered in this action in which defendant collection law firm agrees to reform its practices in

attempting to collect judgments by levying and selling the personal property of judgment debtors. Defendant was retained to collect an obligation owed by plaintiff debtor. Defendant obtained a default judgment against plaintiff and issued an execution for a levy upon plaintiff's personal property in the amount of $1,051.48. Defendant falsely represented to plaintiff that her "household goods and furnishings" were advertised to be sold, that her personal property would be sold if plaintiff did not pay the amount owed on the debt, and that the amount plaintiff owed on her debt was $1,198.08. Plaintiff brought suit under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-16920, alleging that defendant's practices constituted false, deceptive, and misleading representations. The consent order requires defendant to cease several practices, including (1) using non-uniformed agents of the collection firm as "special deputy bailiffs" to serve writs of execution; (2) misrepresenting to debtors that their household goods will be sold, although the goods are largely exempt from execution under state law; and (3) selling clearly exempt property when the debtor does not appear in person for a hearing on exemptions. Further, defendant agreed to notify judgment debtors of their right to contest the levy and sale of their property, and to obtain legal assistance. In addition, although the case was brought as an individual action, the consent order specifically provides for enforcement by any similarly situated judgment debtor. Finally, plaintiff received $3,000 compensation in lieu of a damage award and had the underlying judgment satisfied at defendant's cost.

Proceeds of Guaranteed Student Loan in Student's Checking Account Are Not Exempt from Garnishment

40,846. Westman Comm'n Co. v. Schaerrer, No. 85 CA 1760 (Colo. Ct. App. filed July 15, 1987). Defendant-Appellant represented by Bernard Poskus, Legal Aid Society of Metropolitan Denver, 1905 Sherman St., Suite 400, Denver, CO 80203, (303) 837-1321. [Here reported: (Accession No. 1010122) 40,846D Opinion (4pp.); 40,846E Petition for Rehearing (5pp.). Previously reported at 20 Clearinghouse REV. 273 (July 1986).]

The Colorado Court of Appeals has affirmed the lower court's ruling that proceeds of a guaranteed student loan being held in a bank account are not exempt from garnishment by a non-education creditor. The student had argued that, because the guaranteed student loan funds were required to be used solely for educational purposes under the Higher Education Act, 20 U.S.C. §§ 1071 et seq., they could not be garnished for payment of debts unrelated to education. In denying the exemption, the appellate court found that no federal or state statute, regulation, or rule expressly exempts guaranteed student loan funds from garnishment or execution and, had Congress deemed it necessary to protect these funds, it would have made an express exemption in the statute, as it had done for social security benefits. The court also noted that, although the Higher Education Act provides that students must use the loan proceeds for expenses related to attendance at an institution of higher education, the term "related expenses" includes the student's normal living expenses, including rent, food, clothing, and transportation. The court also rejected appellant's argument