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Other Cases on Prepayments of HUD-Subsidized Mortgages

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The following cases are listed for your information. The cases are not currently linked to any files. If you need to secure a copy of any of these cases and you are a member of the Housing Justice Network, please contact Francis Antonio at fantonio@nhlp.org and request that he send you the case.

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Albany Apartments Tenants' Association v. Veneman (D. Minn., filed Nov. 2001).
Challenge to owner's prepayment of RD 515 loan after default where RHS failed to impose affordability restrictions required by statute. Complaint sought to invalidate RHS regulations and alleged breach of RHS duty to affirmatively further fair housing. Defendant owners prevailed on motion for summary judgment in March 2003. Original owner then sold property to a third party who claims to be a bona fide purchaser for value without notice of the litigation.

Ayer v. Beta, No. C-1-00346 (S.D. Ohio, filed May 1, 2000).
Challenge to owner's attempt to operate project as non-subsidized where RHS accelerated 515 loan and terminated operating subsidy. Resulting settlement preserved purchase by non-profit.

Burks v. Martinez, Civ. No. 01-1482 JMR/FLN (D. Minn 2001).
Tenants and community organization challenge HUD’s approval for prepayment of the 221(d)(4) mortgage at Capitol Plaza as a violation of Section 250 of the National Housing Act (12 USC § 1715z-15). Plaintiffs brought action pursuant to Administrative Procedure Act, and included a claim for HUD’s failure to affirmatively further fair housing. HUD’s motion to dismiss and cross motions for summary judgment were both denied. As to HUD’s motion, multiple technical APA defenses and a standing challenge were both rejected. As to plaintiff’s motion, the court declined to grant declaratory relief on the applicability of Section 250 to unsubsidized mortgages, indicating a preference to consider the issue in the context of the relief plaintiff would be seeking (where prepayment had already occurred). The case subsequently settled. Instead of imposing rent limits on the non-Section 8 units as the lawsuit had sought, plaintiffs’ counsel helped the owners obtained marked up rents on the Section 8 units, with the extra proceeds set aside in a fund for tenants in the non-section 8 units.

Byron Cases (Villa Grande and Rolling Heights)
The owner of these two properties in Byron, Minnesota, sought prepayment of the Section 515 financing and elimination of the affordability restrictions in the administrative process before RHS. RD determined in both cases that there would be an adverse impact on minority housing opportunities in case of prepayment (thus forcing the owner to offer the project to a non-profit or public agency). The owner appealed administratively, and gained a split decision, allowing one property to prepay and denying the other. Meanwhile, the owner was persuaded to enter into negotiations for a preservation transfer to a local housing agency. For one project, the sale went through successfully. In the other, the negotiations fell through but the owner did not pursue further the prepayment application. Thus, both projects were preserved.

Cienega Gardens v. U.S. and associated cases (no documents available)
Court of Federal Claims cases involving contractual and takings claims arising out of federally assisted housing programs. Forty-two plaintiffs in Cienega were owners of low-income housing projects seeking redress when Emergency Low-Income Housing Preservation Act of 1987 (ELIHPA) nullified their option to prepay their federally-subsidized mortgages after 20 years. The most recent ruling in the case is at the bottom.

Cienega Gardens v. U.S., 38 Fed.Cl. 64 (1997). (no documents available)
Lost rent is recoverable because government is liable for breach of contract, but damages issue is reserved.
• Prepayment option was a material term of Section 8 contracts between owners and HUD: without ability to charge market rents upon prepayment and conversion, developers' anticipated prepayment rights would have been meaningless; developers chose middle-class neighborhoods for projects to be able to maximize appreciation upon prepayment.
• Contracts were valid and enforceable, and their renewal would not offset developers' damages against government; government effectively forced developers to continue renting to low-income tenants, but did not create economic duress.
• Developers did not sufficiently prove consequential damages, and developers' calculations of damages were more reliable.

Cienega Gardens v. U.S., 194 F.3d 1231 (Fed. Cir. 1998). (no documents available) Vacating 1997 decision and remanding for dismissal of breach of contract claims, court finds that requisite privity of contract did not exist between the Owners and HUD with respect to prepayment of the mortgage loans so as to make HUD liable to the Owners for breach of contract.

Cienega Gardens v. U.S., 265 F.3d 1237 (Fed. Cir. 2001). (no documents available) Owners appealed summary judgment following 1998 decision. Court holds that:
• claims were ripe notwithstanding owners' failure to seek HUD approval because any request for approval would have been futile, but
• statutes did not result in a physical occupation of the owners' property so as to cause a per se taking.

Cienega Gardens v. U.S., 331 F.3d 1319 (Fed. Cir. 2003). (no documents available) On remand from 2001 decision, summary judgment was granted for government. Owners appealed. Court holds:
• owners had vested property interests in their contractual and regulatory rights to prepay and exit housing programs and to repossess under real property law;
• government's actions constituted compensable taking;
• loss of 96% of possible rate of return on investment was compensable taking; and
• legislation conflicted with property owners' investment-backed expectations in 20 year prepayment right.

Independence Park Apartments v. U.S., 61 Fed.Cl. 692 (2004). (no documents available) After remand for trial of the owners' taking claims and for reinstatement of original damages award to the model plaintiffs, with the possibility of adjustment, Court severs claims of the model plaintiffs and holds:
• using the rental payments that plaintiffs were not able to receive as a result of inability to prepay their mortgages was appropriate starting point for calculating damages for temporary taking of right of low-income property owners to prepay;
• appropriate interest rate for award of just compensation was the ten-year Treasury Separate Trading of Registered Interest and Principal of Securities (STRIP) rate; and
• award of compound, rather than simple, interest was appropriate.

Independence Park Apartments v. U.S., 449 F.3d 1235 (Fed. Cir. 2006). (no documents available) Upon appeal, the Court held that local rent control law was not preempted expressly or impliedly, and thus affects calculation of damages from regulatory taking.

Community Stabilization Project v. Cuomo, 199 F.R.D. 327 (D.Minn., 2001.), 31 Fed.Appx. 340, 2002 WL 272313 (8th Cir. Feb 27, 2002)
City of St. Paul, MN, purchased then proposed demolition of Carey Apartments, a project with a formerly HUD-held Section 221(d)(3) BMIR mortgage that was sold in 1994 and then prepaid; claims for violation of Section 250, 12 USC 1715z-15, 12 U.S.C. § 1701z-11(k)(1) (permitting mortgage sales by HUD only "on terms at least as advantageous" to tenants as the terms when HUD-held), and Fair Housing Act "affirmatively furthering duty." District court opinion granted defendants’ motion to dismiss due to lack of standing, 199 F.R.D. 327 (D.Minn., 2001). The project was demolished after stay pending appeal was denied by 8th Cir.; appeal was dismissed as moot.
DBSI/TRI IV L.P. et al v. USA DBSI/TRI IV LP et al. v. USA, (D. Or filed Oct. 27, 1998).
The owners of six Oregon developments, managed by the same entity that managed the properties involved in the Kimberly and Atwood-Leisman litigation, initiated a suit against RHS seeking the right to prepay their loans. As in Atwood-Leisman, the parties agreed to defer consideration of the case until the Court of Appeals for the Ninth Circuit decided Kimberly. Subsequent to the Idaho district court’s Atwood-Leisman decision, the parties entered into a settlement agreement that extended to both the Idaho and Oregon projects. That agreement provided that the developments would be sold to nonprofit or public entities. But if such sales could not be consummated, the owners had a right to prepay their loans. In Oregon, the owner-plaintiffs and RHS could not agree on the appraisals for the developments. Concurrently, DBSI quieted title and prepaid two of the loans while threatening to prepay the remaining four. In response, residents of all six developments moved to intervene in the quiet title litigation, but the applicants' motion was denied by the court on September 15, 2004. On appeal, the denial was affirmed by the 9th Circuit, finding the residents' interests were sufficiently protected by their claims in Goldammer et al v. Veneman, the residents’ own suit that was filed in district court.
Forest Park II v. Hadley, 336 F.3d 724 (8th Cir. 2003), rev'g Civ. No. 02-480 (MJD/SRN) (D. Minn. 2002).
Owner sought to prepay a HUD Section 236 mortgage under federal prepayment authority (PL 105-276, Sec. 219), without giving the required notice under Minnesota law. Owner sued government entities and tenants regarding the prepayment, seeking declaratory relief. Tenants obtained an injunction against prepayment, based on failure to comply with the state notice law, which the District Court further held was not preempted by federal law. On the owner's appeal, the Eighth Circuit reversed, finding the state law preempted both expressly by LIHPRHA and impliedly under conflict preemption principles.

Goldammer, et al v. Veneman (D. Or. Slip Copy, 2005 WL 1307698, D. Or., May 26, 2005), rev'd sub nom. DBSI/TRI IV Ltd. P’ship v. U.S., 465 F.3d 1031 (9th Cir. 2006).
The owners of six Oregon developments, managed by the same entity that managed the properties involved in the Kimberly and Atwood-Leisman litigation, initiated a suit against RHS seeking the right to prepay their loans. As in Atwood-Leisman, the parties agreed to defer consideration of the case until the Court of Appeals for the Ninth Circuit decided Kimberly. Subsequent to the Idaho district court’s Atwood-Leisman decision, the parties entered into a settlement agreement that extended to both the Idaho and Oregon projects. That agreement provided that the developments would be sold to nonprofit or public entities. But if such sales could not be consummated, the owners had a right to prepay their loans. In Oregon, the owner-plaintiffs and RHS could not agree on the appraisals for the developments. Concurrently, DBSI quieted title and prepaid two of the loans while threatening to prepay the remaining four. In response, residents of all six developments sought to intervene in the quiet title litigation, DBSI v. USA (D. Or. filed Oct. 27, 1998).
Simultaneously, the same residents initiated an action against RHS challenging, under the Administrative Procedures Act, RHS’s acceptance of prepayment offers for two loans and its intent to accept prepayment on the remaining four loans. The resident-plaintiffs asserted that RHS violated numerous federal prepayment laws by approving prepayment on the 6 projects and accepting Section 515 loan prepayments and releasing security in the two projects. The residents, who were facing imminent rent increases from the new owner of the two projects, asserted that the prepayments illegally abrogated their federal ELIHPA rights. On the basis of 9th Circuit’s Kimberly decision, the district court granted summary judgment denying the residents' efforts to enforce ELIHPA under the APA against RHS. The court held that ELIHPA is not a sovereign act and therefore RHS did not violate law by accepting prepayment.
The resident's appealed to the 9th Circuit and won a reversal of the summary judgment. The case was remanded to the district court to consider the residents' claims.

Gillanders v. Smith, No. S-86-867 (E.D. Ca. filed 1986) (statutory and Fair Housing challenge to FmHA prepayment) (Clearinghouse No. 41,556). [no documents available]

Good Haven Prepayment Committee v. Good Street Charitable Foundation, No. DV99-07915 (N.D. Tex, 1999).
Challenge to prepayment by nonprofit owner as violation of the regulatory agreement and Section 250 (12 U.S.C. §1715z-15). Includes demand letter and application for TRO. Parties settled the litigation pursuant to a consent decree which required the owner to provide a number of tenant protections including: priority in admission to voucher holders, retaining the same admission criteria prior to prepayment, and limiting rent increases and any additional security deposits.

Kimberly Associates v. United States, No. 98-0083-S-LMB (Order on Quiet Title, Dec. 12, 2002).
In December of 2002, the Idaho District Court granted a quiet title judgment owner of a Section 515 building after the Rural Housing Service (RHS) refused prepayment, in accordance with the Emergency Low Income Housing Preservation Act of 1987 (ELIHPA). The District Court held that ELIHPA was not a sovereign act and therefore inapplicable to the quiet title action, that RHS may not refuse prepayment under Idaho law, and that the owner was entitled to quiet title to the property. The District Court also denied an intervention motion by two residents, who appealed the denial. The Ninth Circuit issued a stay on sale of the property or changing the terms of tenancy, pending ruling on intervention.
On May 3, 2004, the Ninth Circuit heard oral arguments, on behalf of resident Doe and the owners, regarding the denial of intervention and the merits of the case (No. 02-36165). In an unpublished memorandum on July 22, 2004, the Court dismissed the resident's appeals as moot in consideration of the settlement agreement between the owners and the government.

Lifgren v. Yeutter, 767 F. Supp. 1473 (D. Minn. 1991).
Statutory challenge to RHS Section 515 prepayment based on failure of FmHA to give an offer to extend low-income use, improper promulgation of FmHA regulations, and failure to provide adequate tenant notice and tenant protections against rent increases. Court’s decision upholds statutory restrictions on prepayment, and orders reinstatement of loan.

Oxford Resident's Council v. Deepwater Investment LLC. No. 98-2-28244-4 SEA (Wash. Sup. Ct., filed Nov. 25, 1998).
Challenge to prepayment of Section 221(d)(3) loan and proposed termination of Section 8 contract based on Washington State notice law and Fair Housing claims. Includes settlement agreement for partial extension of project-based Section 8 contract, and right of first refusal for city to purchase project.

Real Estate Board of New York, Inc. v. City Council of the City of New York No. 114459 (NY Supreme Court decided Apr. 11, 2007)
The Real Estate Board of New York sought a declaratory judgment finding that NYC’s right to purchase preservation law, Local Law 79, was void due to preemption by state and federal law. Court granted judgment invalidating local law. Related case Mother Zion Tenant Ass’n was appealed by the tenants, and intermediate appellate court affirmed, 865 N.Y.S. 2d 64 (App. Div. 2008), motion for further review denied, 11 N.Y. 3d 915 (N.Y. Jan. 20, 2009).

Roman v. Jackson
Tenants of a NYC project-based Section 8 property brought suit to prohibit HUD from allowing the owner to prepay the mortgage and sell the property. Tenants also sought a declaration that HUD failed in its duties to ensure they received proper notice of intended prepayment and opt-out. Case was settled at an early stage in the proceedings.

Rubanenko v. Martinez, No. CV02-582-GEB (E.D. Cal. 2002)
Tenants and homeless family challenge prepayment of Section 236 loan at Bryte Gardens based on violation of Section 250 of the National Housing Act (12 USC 1715z-15) which limits HUD's discretion to approve prepayment, and on violation of state notice law. Also includes claim that HUD failed to publish its policy to allow a Use Agreement to substitute for Section 250 requirements, and due process claim based on inadequate notice of prepayment. The District Court denied plaintiffs' motion for preliminary injunction, then dismissed all claims, and named plaintiffs declined to pursue an appeal. The Ninth Circuit Court of Appeals denied intervention on appeal by other tenants.

Tinney v. Veneman, No. CV-02-C-2062-M (D. Ala.)
Owner sought to prepay RHS Section 515 loan and had an administrative hearing with RHS in which the hearing officer allowed prepayment. Tenants sued in federal district court in Alabama. Owners moved to dismiss and tenants moved for preliminary injunction. After briefing, case settled with order to remand to RHS for administrative re-hearing.

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