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Consumer Bankruptcy Law and Practice: 2022-04 Staff Notation

The CARES Act changes Official Forms 122A-1, 122B, and 122C-1 described in the 2020-04 Committee Note lapsed on March 27, 2022. The three forms have reverted to their pre-CARES Act versions (December 2019 in the case of 122A-1, October 2019 as amended in December 2021 in the case of 122B, and October 2019 in the case of 122C-1). In addition, the dollar amounts listed in lines 29 and 40 of 122A-2, and line 29 of 122C-2 are adjusted effective April 1, 2022, as part of the tri-annual dollar adjustments required by 11 U.S.C. § 104.

Consumer Bankruptcy Law and Practice: 2021-12 Committee Note

Official Form 122B is amended in response to the enactment of the Small Business Reorganization Act of 2019, Pub. L. No. 116-54, 133 Stat. 1079. That law gives a small business debtor the option of electing to be a debtor under subchapter V of chapter 11. As amended, the initial instruction in the form includes an exception for subchapter V cases. Because Code § 1129(a)(15) is inapplicable to such cases, there is no need for an individual debtor in a subchapter V case to file a statement of current monthly income.

Federal Deception Law: 3.1.1a.7a Responding to Defendants’ Late Attempts to Raise the Appropriations Clause Question

As consumer law cases based on CFPB rules go up on appeal, there is a risk that defendants for the first time will raise the CFPB funding issue either on appeal or when the case is remanded back to the trial court. Nevertheless, courts should not consider the funding issue if it was never raised in the case below.32 The Community Financial Services decision does not justify failing to raise the issue previously.

Fair Debt Collection: 15.1.1a Damage Requirements for Common Law Torts

Whether a showing of harm or damage is an element of a common law tort is not only important for practitioners asserting these claims, but is also highly relevant to the question whether consumers have standing to assert claims under the FDCPA and other consumer law statutes in federal court. Accordingly, in its discussion of individual tort claims this chapter pays particular attention to whether they impose a requirement to show actual damage.

Fair Debt Collection: 15.7.1a False Imprisonment

A false arrest or false imprisonment claim may be viable if a creditor or collector wrongfully restricts the debtor’s freedom of motion in some way483 or causes the debtor to be arrested.484 The elements of false imprisonment are an act intended to confine the plaintiff, which results directly or indirectly in confinement, and that plaintiff is aware of the confinement or is injured by it.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.1 Overview

In certain circumstances, advocates should consider involving HUD, elected officials, or the press in an effort to resolve a particular issue. This attempt can be made before or after engaging in the grievance procedure with the PHA or the private owner. However, before contacting HUD for the first time, advocates and tenants should be aware of HUD’s structure.84

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.2.1 Overview

Depending upon the type of issue involved, advocates or tenants may want to begin at the regional or local level in the Office of General Counsel or the appropriate regional or local program management office. For disputes involving a claim of discrimination, advocates may want to begin with HUD’s Office of Fair Housing and Equal Opportunity. In trying to decide whether the program management office or the legal office is most appropriate, advocates should first consider the past responsiveness of each office to tenants’ concerns.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.8.6.8 Intervening parties

To avoid case dismissal due to mooting of named plaintiffs’ claims before class certification, advocates should contact putative class members who could immediately intervene as named plaintiffs. In Comer v. Cisneros, the Second Circuit permitted two parties to intervene because they had standing, their claims and those of the named plaintiffs shared common issues of fact and law, and the intervenors’ claims would neither delay nor prejudice the rights of the original plaintiffs or the class members.600

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.1 Overview

The following section discusses various sources of possible substantive rights upon which tenants may base their affirmative claims. The sources of law discussed herein include: the federal Constitution, federal statutes and regulations, HUD Directives (such as handbooks, notices and circulars), program documents (such as PHA Plans and Section 8 administrative plans), program contracts (such as ACCs, regulatory agreements and HAP contracts), and state and local law.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.1 Overview

Federal constitutional guarantees of procedural and substantive due process, equal protection, First Amendment protections and Fourth Amendment protections are a basic source of affordable housing tenants’ rights. The United States Constitution defines governmental powers and limitations, and protects citizens against certain types of intrusions by the government.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.3.2 Due Process

The Fifth Amendment Due Process Clause states that no person shall be deprived of life, liberty or property without due process of law.664 The Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property, without due process of law.”665 There are two types of due process claims: procedural due process and substantive due process.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.3.4 Takings

The Fifth Amendment’s Takings Clause provides that no private property shall be taken from its private owner for public use, without just compensation.742 Federal housing statutes that are targeted at a specific set of property interests or government contracts can give rise to either breach of contract claims or claims under the Takings Clause.743 The Takings Clause has also been used to enforce tenants’ state relocation rights.744

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.5.4 Enforcing LIHTC Regulatory Agreements

To claim tax credits, the LIHTC statute requires state housing agencies and the taxpayer to enter into an “extended low-income housing commitment.”1290 The commitment contains statutorily-prescribed rent and occupancy restrictions for the property, which are “binding on all successors of the taxpayer,” and the commitment must be recorded as a restrictive covenant pursuant to state law.1291 Moreover, “individuals who meet the income limitation applicable to the building (whether prospective,

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.1.3.1 When a Preliminary Injuction is Necessary

A preliminary injunction is usually necessary to preserve the status quo and to ensure that plaintiffs will not suffer irreparable harm resulting from the denial of their constitutional and statutorily created rights and benefits during the pendency of their case. In cases involving an imminent eviction or termination, a temporary restraining order1319 is necessary to maintain the status quo until a preliminary injunction hearing can be scheduled.