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Truth in Lending: 11.10.2.8 Fees After Acceptance of Rule 68 Offer of Judgment

Rule 68 of the Federal Rules of Civil Procedure allows any party to serve upon the adverse party an offer to allow judgment to be taken against the defending party in a certain amount. If the offeree rejects a Rule 68 offer of judgment and then recovers less at trial, then that party must pay the costs incurred after the making of the offer. The application of this rule to any given situation is exceedingly complex and may depend on minute differences in statutory language. This subsection analyzes just two aspects of Rule 68 offers in TILA cases.

Truth in Lending: 11.10.2.9 Fees for Work Performed Postjudgment

A consumer should also recover fees and expenses incurred in monitoring or enforcing a judgment, consent decree, or settlement agreement.1411 Reasonable attorney fees are always available for the time and effort spent collecting or executing on any judgment arising under fee shifting statutes, including therefore TILA.1412

Truth in Lending: 11.10.3.1.1 Award usually goes to the client

The Truth in Lending Act states that the creditor “is liable to such person [i.e., the consumer] in an amount equal to the sum of” the damage award and attorney fees.1413 Thus fees are usually paid directly to the consumer and not the consumer’s attorney,1414 allowing the consumer and his or her attorney to calculate the attorney’s compensation.

Truth in Lending: 11.10.3.1.2 As against third parties, award goes to attorney

The driving legislative force favoring fee awards is to benefit consumers by helping to ensure that attorneys will take on their claims—particularly in cases in which the consumer will be unable to pay the lawyer’s fee or in which the expected award is relatively small.1423 Where a third party seeks to lay claim to the fee, this policy might be frustrated if the award were to be considered the consumer’s property instead of belonging to the attorney.

Truth in Lending: 11.10.3.2 Fees for Nonprofit and Pro Bono Attorneys

Legal services offices, volunteer attorneys, prepaid legal services plans, law school clinics, and other nonprofit organizations have the same right under TILA to attorney fees as private attorneys, even if the consumer is not obligated to pay her attorney.1435 The Supreme Court’s opinion in Blum v.

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.3.2 De Minimis or Harmless Violation

Even when the PHA establishes a violation, a voucher participant may still be able to avoid termination if the violation is technical or harmless or if termination is a disproportionate response.1329 For example, a failure to report change in household composition may be harmless to the PHA when the additional family member has no income.1330 Similarly, a tenant’s technical failure to provide the PHA with an eviction notice should not be enough for termination, unless the PHA has been unable

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.3.6 Violence Against Women Act

Under the Violence Against Women Act (VAWA), an incident of actual or threatened domestic violence, dating violence, sexual assault, or stalking is not good cause for terminating a victim’s Voucher assistance; this includes “adverse factors” such as lease violations attributable to a tenant’s statuts as a survivor of gender-based violence. For more information, see the VAWA discussion infra

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.3.7 Bankruptcy

A particpant facing termination for nonpayment of amounts owed to a PHA can potentially file bankruptcy as a defense strategy. Filing the petition imposes an automatic stay on any administrative actions against the debtor, including PHA termination proceedings.1345 The tenant can then seek a discharge of the delinquent amounts,1346 and the bankruptcy anti-discrimination provision should prohibit the PHA from terminating the Voucher.1347

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.4.1 Overview

Both due process and HUD’s regulations entitle participants to specific procedural protections prior to the termination of assistance. This section reviews these requirements and related common issues.

Federal regulations entitle program participants (those on whose behalf the PHA has executed a Housing Assistance Payments contract with an owner)1350 to the following procedural protections when facing termination or denial of a Voucher to move:

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.4.4.3 Discovery

Before a hearing, the PHA must give the family an opportunity to examine, and copy at its expense, any PHA documents “directly relevant to the hearing.”1386 If the PHA does not make a document available for review on request of the family, the PHA may not rely on the document at the hearing.1387 The discovery regulation is two-sided, however; if the tenant attempts to introduce a document that was not provided to the PHA on request prior to the hearing, it too may be barred.

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.4.4.6 Evidence

HUD provides by regulation that PHA must prove the factual basis for termination by a preponderance of the evidence.1406 Yet advocates should be prepared to support the requirement of this basic evidentiary standard with other authority because the Eleventh Circuit ruled in a 2019 en banc opinion that the preponderance-of-evidence standard set forth in HUD’s regulation is “unmoored from any federal right” and thus ultimately unenforceable under 42 U.S.C.