This New York Times article is great and can be found Here.
Thursday, September 6, 2012
Sunday, August 12, 2012
Georgia Law Apparently Does Not Permit the Booting of Cars On Private Property
You may wonder why car booting is in this blog. Well, the Georgia Code section that deals with alleged trespassing of cars on private property is in the real property section of the Code, OCGA 44-1-13. That Code Section allows the towing of trespassing vehicles on private property. What it DOES NOT do is allow the booting or immobilization of vehicles on private property in the State of Georgia. In other words, it appears to be illegal to boot cars in Georgia on private property. How do I know this even moreso? Because in 201l Representatives Heckstall and Fludd (Whoever they are, feel free to vote them out of office) introduced bill HB 490 into the General Assembly to amend OCGA 44-1-13 to allow the booting of cars on private property in the State of Georgia. The law has not been passed, and therefore in my opinion it is illegal to do so in Georgia. Obviously, the General Assembly, or at least Heckstall and Fludd, felt that it was necessary to amend OCGA 44-1-13 so that it would be legal, so it appears obvious that as the statute stands, it is illegal. Yet it goes on all over the place.
In its infinite wisdom, the Atlanta City Code purports to regulate "vehicle immobilization" in the City of Atlanta and vehicle booting companies. It has requirements regarding signs, booting companies, etc. When I read this I thought, where is the enabling legislation to give this authority to the City of Atlanta? The City Code does not say when a car may be booted on private property, or put another way, what constitutes a violation permitting a boot. I searched the Georgia Code and came up empty. All I could find was OCGA 44-1-13 and the failed attempt to amend it to allow booting on private property. So unless I am missing something (I am by no means an expert in state and municipality jurisdictional relations, but I did pass the Georgia Bar) vehicle operators in the city of Atlanta are being scammed by parking lot owners and the vehicle immobilization business. If anyone reads this and can explain how I am wrong I would be happy to apologize and take down this post. Until then, readers, knock yourselves out fighting City Hall, and raising as much ruckus as you can to fight this. If you do get booted, I recommend paying with a credit card, not cash, and disputing the charge as soon as possible. That is what I did. If you get towed you are probably out of luck but the statute seems incredibly vague as to what and when an actual customer in a shopping center, who was an invitee, becomes a trespasser for leaving the car parked in the lot. I haven't researched the case law on that important point but I invite anyone to look into it and comment.
Recently your faithful blogger had the pleasant experience of parking in a parking lot at a small shopping center with a Starbucks in it, buying coffee, walking outside and around the block to make a private phone call, chatting with a friend, and returning to find a boot on my car and a rude, gleeful worker for the booting company sitting in the car, ready to ambush anyone who so much as stepped foot out of the parking lot for a second to put a clamp on their car. I had walked right by the guy when I went off. He could have easily had the decency to alert me that walking out of the lot was considered grounds for his services but there's no money in that, right? He pointed out a sign that was on the property warning that the lot was for "current customers" only and that cars could get booted. But I didn't walk past it and could not read it unless I went well out of my way to go see what it said. Besides, I WAS a current customer who happened to have to make a call outside the shop. I even wanted a refill darn it. And the lot was not very busy, it might have had 20% of its spaces filled. This man lurking in the lot and booting cars said they had a policy of immediately booting when someone walks off the property. That makes no sense and is patently unreasonable. I can understand that a shopping center owner wants to protect spaces for shoppers that come by, but the lot was almost empty and the fellow was sitting right on sight. At least a tow truck would be visible. Obviously this is a scam to hide in a car with a trunk full of boots and trap unsuspecting actual customers of the shopping center the minute they are out of sight. The man booting the cars was a complete jerk and was incredibly rude to my wife, which in my experience is a really bad idea, and boorish.
Moreover, I can see how this could be a public safety issue actually harming the public, because people who park in parking lots may become intoxicated and leave their cars overnight because they are too impaired to drive, whether they are towed or not (I have gotten complaints about this, people say "they may as well drive drunk and take the risk", not a good idea, of course, but drunk people have a lot of bad ideas, and it is legal to get drunk). It seems like getting booted would be a disincentive to refrain from drinking and driving if you feared that your car would be booted or towed. It is one thing to park illegally, but it is another to be punished for the good deed of not driving and endangering the public. Is the profit of keeping spaces open and keepijng booting services profitable greater than keeping dangerous drivers off the road? Luckily I am a caffeine man these days myself, but I was so enraged at this I thought I might have a heart attack in the parking lot myself (I guess caffeine isn't so great either). Furthermore, these people have cameras on their dashboard as well, and they admit that they tape "video interactions" with their victims. That is a great invasion of privacy we should all be proud of in America.
Finally, the Georgia Home Rule Act delegates specific powers for municipalities to pass laws in certain areas. However, the Georgia Assembly has expressly limited the ability for local governments to regulate in certain areas, and one of the limits is contained in OCGA 36-35-6(b). It says local government shall not have "The power granted in subsections (a) and (b) of Code Section 36-35-3 (the Home Rule authority) shall not include the power to take any action affecting the private or civil law governing private or civil relationships, except as is incident to the exercise of an independent governmental power." So regulating a private car on a private lot is for the state to make the laws, not the cities. And the state has chosen to allow towing under certain circumstance and chose not to allow vehicle immobilization, ie, booting.
The municipalites would probably argue that their police power to provide "safety" is their excuse, but that seems lame in the face of the danger of motivating drunk drivers to drive after hours. And what evidence is there that the public safety warrants the obvious trespasses to private property (a car is private personal property) caused by these scammers? Perhaps on occasion booting might be needed, such as during a festival or a Falcons game, etc. But that should be the exception, not the rule. The property owners should have to petition to get the right to boot, and these scamming boot companies should not have free license to make money by hiding in plain sight booting anything they can get their hands on. If the city actually did its job and regulated the booting companies it licenses it might work but they obviously do not do that. Since I originally posted this I have been inundated with positive comments from irate folks who got scammed by the booters in outrageous incidents. These booting companies are basically like the road "checkpoints" you read about in failed states (Afghanistan comes to mind) where you basically have to pay a bribe to somebody to drive up and down the road. No wonder this city is covered with parking lots instead of parks or public decks maintained by the City.
By the way the address was on Moreland Avenue in Little Five Points and the parking company can be found on the internet with several complaints from folks who feel like they were ripped off. I haven't figured out who the landlord is but I certainly will. If I were Starbucks I would be none too pleased about how their landlord, its property manager, and this parking company treat their customers. I should own stock in the Starbucks company I buy so much of their stuff. Maybe this company has an Atlanta permit but they do not have the amendment to OCGA 44-1-13 effectuated to allow them to boot on private property. State law trumps municipal law. I am actually mulling over the merit of filing a class action lawsuit against these scavenger companies and trying to put them out of business. I wouldn't mind finding out who they work with and adding their private customers to the list of defendants as well. If I am right about the illegality of this private property booting then the class action seems totally certifiable ( a "class" lawsuit has to be ceritified by the judge based on the similarity of all the claims), because all the victims are substantially similar no matter what their story is and the circumstances. Maybe they should have gotten towed but not snowed.
Perhaps I am a little obsessive to get this mad over a $50 boot on my car. But it is that obsession that helps me fight 110 per cent for my clients and to right as many wrongs as possible before I kick the bucket.
In its infinite wisdom, the Atlanta City Code purports to regulate "vehicle immobilization" in the City of Atlanta and vehicle booting companies. It has requirements regarding signs, booting companies, etc. When I read this I thought, where is the enabling legislation to give this authority to the City of Atlanta? The City Code does not say when a car may be booted on private property, or put another way, what constitutes a violation permitting a boot. I searched the Georgia Code and came up empty. All I could find was OCGA 44-1-13 and the failed attempt to amend it to allow booting on private property. So unless I am missing something (I am by no means an expert in state and municipality jurisdictional relations, but I did pass the Georgia Bar) vehicle operators in the city of Atlanta are being scammed by parking lot owners and the vehicle immobilization business. If anyone reads this and can explain how I am wrong I would be happy to apologize and take down this post. Until then, readers, knock yourselves out fighting City Hall, and raising as much ruckus as you can to fight this. If you do get booted, I recommend paying with a credit card, not cash, and disputing the charge as soon as possible. That is what I did. If you get towed you are probably out of luck but the statute seems incredibly vague as to what and when an actual customer in a shopping center, who was an invitee, becomes a trespasser for leaving the car parked in the lot. I haven't researched the case law on that important point but I invite anyone to look into it and comment.
Recently your faithful blogger had the pleasant experience of parking in a parking lot at a small shopping center with a Starbucks in it, buying coffee, walking outside and around the block to make a private phone call, chatting with a friend, and returning to find a boot on my car and a rude, gleeful worker for the booting company sitting in the car, ready to ambush anyone who so much as stepped foot out of the parking lot for a second to put a clamp on their car. I had walked right by the guy when I went off. He could have easily had the decency to alert me that walking out of the lot was considered grounds for his services but there's no money in that, right? He pointed out a sign that was on the property warning that the lot was for "current customers" only and that cars could get booted. But I didn't walk past it and could not read it unless I went well out of my way to go see what it said. Besides, I WAS a current customer who happened to have to make a call outside the shop. I even wanted a refill darn it. And the lot was not very busy, it might have had 20% of its spaces filled. This man lurking in the lot and booting cars said they had a policy of immediately booting when someone walks off the property. That makes no sense and is patently unreasonable. I can understand that a shopping center owner wants to protect spaces for shoppers that come by, but the lot was almost empty and the fellow was sitting right on sight. At least a tow truck would be visible. Obviously this is a scam to hide in a car with a trunk full of boots and trap unsuspecting actual customers of the shopping center the minute they are out of sight. The man booting the cars was a complete jerk and was incredibly rude to my wife, which in my experience is a really bad idea, and boorish.
Moreover, I can see how this could be a public safety issue actually harming the public, because people who park in parking lots may become intoxicated and leave their cars overnight because they are too impaired to drive, whether they are towed or not (I have gotten complaints about this, people say "they may as well drive drunk and take the risk", not a good idea, of course, but drunk people have a lot of bad ideas, and it is legal to get drunk). It seems like getting booted would be a disincentive to refrain from drinking and driving if you feared that your car would be booted or towed. It is one thing to park illegally, but it is another to be punished for the good deed of not driving and endangering the public. Is the profit of keeping spaces open and keepijng booting services profitable greater than keeping dangerous drivers off the road? Luckily I am a caffeine man these days myself, but I was so enraged at this I thought I might have a heart attack in the parking lot myself (I guess caffeine isn't so great either). Furthermore, these people have cameras on their dashboard as well, and they admit that they tape "video interactions" with their victims. That is a great invasion of privacy we should all be proud of in America.
Finally, the Georgia Home Rule Act delegates specific powers for municipalities to pass laws in certain areas. However, the Georgia Assembly has expressly limited the ability for local governments to regulate in certain areas, and one of the limits is contained in OCGA 36-35-6(b). It says local government shall not have "The power granted in subsections (a) and (b) of Code Section 36-35-3 (the Home Rule authority) shall not include the power to take any action affecting the private or civil law governing private or civil relationships, except as is incident to the exercise of an independent governmental power." So regulating a private car on a private lot is for the state to make the laws, not the cities. And the state has chosen to allow towing under certain circumstance and chose not to allow vehicle immobilization, ie, booting.
The municipalites would probably argue that their police power to provide "safety" is their excuse, but that seems lame in the face of the danger of motivating drunk drivers to drive after hours. And what evidence is there that the public safety warrants the obvious trespasses to private property (a car is private personal property) caused by these scammers? Perhaps on occasion booting might be needed, such as during a festival or a Falcons game, etc. But that should be the exception, not the rule. The property owners should have to petition to get the right to boot, and these scamming boot companies should not have free license to make money by hiding in plain sight booting anything they can get their hands on. If the city actually did its job and regulated the booting companies it licenses it might work but they obviously do not do that. Since I originally posted this I have been inundated with positive comments from irate folks who got scammed by the booters in outrageous incidents. These booting companies are basically like the road "checkpoints" you read about in failed states (Afghanistan comes to mind) where you basically have to pay a bribe to somebody to drive up and down the road. No wonder this city is covered with parking lots instead of parks or public decks maintained by the City.
By the way the address was on Moreland Avenue in Little Five Points and the parking company can be found on the internet with several complaints from folks who feel like they were ripped off. I haven't figured out who the landlord is but I certainly will. If I were Starbucks I would be none too pleased about how their landlord, its property manager, and this parking company treat their customers. I should own stock in the Starbucks company I buy so much of their stuff. Maybe this company has an Atlanta permit but they do not have the amendment to OCGA 44-1-13 effectuated to allow them to boot on private property. State law trumps municipal law. I am actually mulling over the merit of filing a class action lawsuit against these scavenger companies and trying to put them out of business. I wouldn't mind finding out who they work with and adding their private customers to the list of defendants as well. If I am right about the illegality of this private property booting then the class action seems totally certifiable ( a "class" lawsuit has to be ceritified by the judge based on the similarity of all the claims), because all the victims are substantially similar no matter what their story is and the circumstances. Maybe they should have gotten towed but not snowed.
Perhaps I am a little obsessive to get this mad over a $50 boot on my car. But it is that obsession that helps me fight 110 per cent for my clients and to right as many wrongs as possible before I kick the bucket.
Sunday, July 22, 2012
Wrongful Foreclosure: A Big Day for Homeowners and a Bad Day for Banks and MERS: Foreclosure Wrongful Where Notice of Foreclosure Only Identifed Loan Servicer and Not Actual Holder of Security Deed.
Last week in Reese v. Provident Funding Associates, LLP, 2012 WL 2849700 (July 12, 2012) the Georgia Court of Appeals reversed a trial court's decision that it was permissible for a loan servicer to send a notice naming it as the holder of a security deed instead of the actual owner of the security deed, over three dissenting judges. The result was that the homeowner won a suit for wrongful foreclosure against the loan servicer, and a route to wrongful foreclosure claims has been opened for plaintiffs. This is a huge case because this mortgage was one of the Mortgage Electronic Registration Systems, Inc. ("MERS") deals designed to avoid County taxes. MERS was named in the security deed as the grantee of the original security deed. After Provident funded the loan it sold and delivered the note to the Residential Funding Company, LLC ("RFC"). Thus, RFC succeeded Provident as the holder of the note, but Provident remained in place as the loan servicer only. It is likely that RFC sold the note as well and it became part of a package of mortgages that were bundled together and made into securities to be sold to investors like so many residential mortgages were handled before the Great Recession.
In 2009 the Reese's defaulted and eventually Provident sent notice to them that the property was going to go into foreclosure in a non-judicial sale. The foreclosure took place and the occupants of the home were evicted. The Reeses filed a claim for wrongful foreclosure claiming that OCGA 44-14-162.2(a) required their foreclosure notice to provide the name of the secured creditor, not just an agent of the creditor, ie, the loan servicer. The statute in question states clearly that "notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed or other lien contract shall be given by the secured creditor no later than 30 days before the date of the proposed foreclosure." The provision then goes on to say that the notice must provide contact information of "the individual or entity who shall have full authority to negotiate, amend and modify all terms of the mortgage with the debtor." The statute arguably is ambiguous to situations where the secured creditor is not the only entity with full authority to do what the second sentence requires. The plaintiff's claimed that the provision as a whole makes clear the secured creditor must be named, perhaps along with the other agent with the authority to modify or amend the note. The defense argued that the second sentence clarifies that an agent, here Provident, is permitted to be the sole entity on the notice because it has the authority to act as much as the secured creditor. In essence, the plaintiff's focused on the first sentence and the defendant's on the second sentence. This was an issue of first impression to the Court of Appeals.
This is an important question because at least tens of thousands of mortgages in Georgia are handled the way this one was, with some entity other than the ultimate secured creditor listed on the notice. In fact in this case it is unclear just who the secured creditor was, but it is highly unlikely it was still RFC. It is impossible to tell how many mortgages and foreclosures in Georgia were handled this way. Nevertheless, despite the huge problem of wrongful foreclosures in the past, and current mortgages under water that were executed like this one, the court reversed the trial court's decision. It held that the two provisions in 44-14-162.2(a), read together, provide in plain language that the secured creditor must be named in the notice, and that nothing precludes the secured creditor from being listed alongside the servicer or other nominee.
Indeed, this notice listed Provident as the secured creditor, which simply was not true. The court duly noted this total misrepresentation and falsehood in its ruling. It seemed that the court found that construing the statute the way the banks do it leads to an automatic lie to the debtor that the servicer is in fact the secured creditor. This obviously was a troubling fact for the court in the case.
This ruling throws into question the ability to foreclose many real estate mortgages on the books and may cause many wrongful foreclosure suits over foreclosures that have already happened. The fact is that it might be very difficult for the servicer of a mortgage note to trace back the loan all the way to its ultimate security deed holder. Having to do this investigation will inevitably lead to transaction costs in time and money for the banks trying to untangle the complicated web of the mortgage securities that were traded all over the world. However, this is the world the industry created by inventing MERS and RFC in the first place to allow mortgages to be flipped endlessly and lightning fast without paying County recording taxes at all for each transfer. The rush for money that created the securities investments out of residential mortgages led to this brazen attempt to circumvent taxes and the notice requirements of the statute. It remains to be seen how big this decision is in the long run, or whether the Georgia Supreme Court will look at the issue any time soon. But for now, it will allow defaulted debtors to stay in their homes longer, because it will force mortgage servicers to do a lot more homework up front about who actually holds the security deed on the loan that was funded to finance the house. All in all, it was a gutsy decision by the Court of Appeals, but one that seems obvious based on the reading the statute as a whole, as the court must in following the rules of contract interpretation in Georgia law.
This is an important question because at least tens of thousands of mortgages in Georgia are handled the way this one was, with some entity other than the ultimate secured creditor listed on the notice. In fact in this case it is unclear just who the secured creditor was, but it is highly unlikely it was still RFC. It is impossible to tell how many mortgages and foreclosures in Georgia were handled this way. Nevertheless, despite the huge problem of wrongful foreclosures in the past, and current mortgages under water that were executed like this one, the court reversed the trial court's decision. It held that the two provisions in 44-14-162.2(a), read together, provide in plain language that the secured creditor must be named in the notice, and that nothing precludes the secured creditor from being listed alongside the servicer or other nominee.
Indeed, this notice listed Provident as the secured creditor, which simply was not true. The court duly noted this total misrepresentation and falsehood in its ruling. It seemed that the court found that construing the statute the way the banks do it leads to an automatic lie to the debtor that the servicer is in fact the secured creditor. This obviously was a troubling fact for the court in the case.
This ruling throws into question the ability to foreclose many real estate mortgages on the books and may cause many wrongful foreclosure suits over foreclosures that have already happened. The fact is that it might be very difficult for the servicer of a mortgage note to trace back the loan all the way to its ultimate security deed holder. Having to do this investigation will inevitably lead to transaction costs in time and money for the banks trying to untangle the complicated web of the mortgage securities that were traded all over the world. However, this is the world the industry created by inventing MERS and RFC in the first place to allow mortgages to be flipped endlessly and lightning fast without paying County recording taxes at all for each transfer. The rush for money that created the securities investments out of residential mortgages led to this brazen attempt to circumvent taxes and the notice requirements of the statute. It remains to be seen how big this decision is in the long run, or whether the Georgia Supreme Court will look at the issue any time soon. But for now, it will allow defaulted debtors to stay in their homes longer, because it will force mortgage servicers to do a lot more homework up front about who actually holds the security deed on the loan that was funded to finance the house. All in all, it was a gutsy decision by the Court of Appeals, but one that seems obvious based on the reading the statute as a whole, as the court must in following the rules of contract interpretation in Georgia law.
Subscribe to:
Posts (Atom)
