There is currently on appeal trademark litigation over the right to use the NAACP trademark. A group who advocates against abortion is using the name NAACP to denote “National Association for the Abortion of Colored People”. The National Association for the Advancement of Colored People is clearly unhappy with this use. A lower court ruling found that the use was a trademark violation. On appeal, it is claimed that the use is a parody of the NAACP mark and that there is unlikely to be confusion in the mind of the consuming public. The case began when The Radiance Foundation filed a declaratory action to show that its use of NAACP did not infringe or dilute the NAACP mark. The National Association for the Advancement of Colored People counterclaimed for trademark infringement. Radiance claims that its use of NAACP is “noncommercial, nominative, news reporting and news commentary.” An amicus brief has been filed on behalf of Radiance by, inter alia, the ACLU who state that “Some might condemn the NRA by saying that it stand for “Next Rifle Assault” or “National Republican Association”. They ask for the court to not allow trademark law to trump free speech. The amicus brief was filed not to support the message of Radiance, but to support the right to freedom of speech and expression.
Ocwen Financial Corp. entered into a settlement with New York Regulators concerning faulty mortgage servicing practices. Ocwen was accused of many irregularities in the servicing of home loans for banks, including excessive charges from its related companies, backdating of documents, and lack of an appropriate business structure to handle the servicing of home loans. Under the agreement with New York’s financial regulator, Ocwen will admit that it did not properly handle its interactions with distressed homeowners in connection with foreclosures and mortgage loan modifications. Further, William C. Erbey, the founder of Ocwen and related companies will, by consent order with the New York Department of Financial Services, step down from the company. The company has also agreed to pay $150 million toward programs to aid foreclosed homeowners. The company will also need to seek permission from state regulators before expanding or acquiring other companies to show that it is sufficiently able to handle the servicing of mortgages. Ocwen will also be required to provide current and former homeowners with all of the documentation concerning their loans, including internal notations and comments, which could lead to a slew of more litigation concerning improper foreclosures. This order, amongs others issued by States Attorney General and the Federal Government, will make it more difficult for mortgage loan servicers to operate profitably while following the ever changing rules and regulations for foreclosures, loan modifications and short sales.
Attorneys are considering lawsuits against lenders who violate Consumer Financial Protection Bureau (CFPB) rules. Under the recently enacted CFPB rules, lenders need to confirm that an applicant for a home loan can afford it before issuing the loan. There are also a number of provisions for struggling homeowners attempting to modify their loans. For example, oftentimes a foreclosure will continue while the homeowner is awaiting a decision on their mortgage loan modification. During this period the house can be sold without the homeowner having received a response to its application or to its 30 appeal period after a denial of a mortgage loan modification. In conflict with the CFPB regulations, at least in Miami-Dade court, is the fact that the courts want to get rid of the glut of foreclosure cases on their dockets, Judges will allow one extension to homeowners and label the order “NFC” for “No Further Cancellations”. If the homeowner attempts to argue that it has still not heard back from the lender, the judges will still allow the property to be sold based on the NFC ruling. Lenders claim that they are unable to comply with the regulations and must abide by judges’ rulings. Whether lawsuits against the lenders will change the practices in the courts and the lender practices remains to be seen.
President Obama’s recent speech claiming to lift the years long embargo on the Cuban government may also raise the possibility that companies and individuals with claims for property confiscation against the Cuban government may have a chance of some sort of recovery. However, it is unlikely these many claims will be resolved prior to the re-establishment of diplomatic relations between the countries. In 1964 the U.S. Congress directed the U.S. Foreign Claims Settlement Commission, , a judicial agency within the Justice Department, to look into the validity and monetary value of the claims against the Cuban government for property taken. Companies such as Coca-Cola and Exxon have claims against the Cuban government. The U.S. embargo of Cuba arose largely due to the confiscation of property by the Cuban government. According to some lawyers, lifting the embargo without reaching a settlement on these outstanding claims may not even be legal under U.S. law. Whether Cuba would entertain the possibility of reaching a financial settlement of the claims is dubious, as it would probably not be able to afford to pay the claims and the Cuban government claims that the U.S. government owes it more than $100 billion for the damage caused by the embargo. A likely possibility in settlement negotiations could be compensating companies with development rights and tax incentives to encourage investment in Cuba. Settlement with individuals remains an open issue.
Supreme Court Will Hear Second Mortgage Stripping in Bankruptcy Cases. States like Florida have allowed homeowners in Chapter 7 bankruptcy to “strip”, or remove, the second mortgages from their homes when the amount of the first mortgage is equal to or greater than the value of the home. Now the issue is heading for the Supreme Court of the United States. The argument against this stripping in Chapter 7 cases is that the homeowner has the ability to either reaffirm the entire debt on the home, which would include the second mortgage or pay off the entire debt. While in Chapter 13 cases, second mortgages can be stripped, or canceled, a Chapter 13 bankruptcy filer takes on significant additional burdens in an attempt to enter a payment plan on the debts. Under a Chapter 13 filing, the debtor must pay all “disposable” income to creditors for up to 5 years.