Certiorari Granted in TILA Circuit Split —see page 103

Advocating for Higher Voucher Spending with Your PHA —see page 109

Housing Law BulletinVolume 44 • June 2014

Published by the National Housing Law Project

Housing Law Bulletin • Volume 44

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Housing Law Bulletin • Volume 44 Page 103

Housing Law Bulletin

Volume 44 • June 2014

The Housing Law Bulletin is published 10 times per year by the National Housing Law Project, a California nonprofit corporation. Opinions expressed in the Bulletin are those of the authors and should not be construed as representing the opinions or policy of any funding source.

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Cover: Gray’s Landing is a Portland, Oregon property resulting from a partnership between REACH CDC—a nonprofit affordable housing developer/property manager—and the Portland Housing Bureau. The property features 209 affordable units, which can be rented by households earning up to 60% of area median income. Gray’s Landing also boasts multiple green features, and has earned a Platinum LEED certification. Forty-two units serve low-income veterans. Photo courtesy of REACH and Jeff Amram Photography. For more information: http://reachcdc.org/main/docs/housing_development/Grays_Landing_Project_Fact_Sheet.pdf.

Table of Contents Page

Certiorari Granted in TILA Circuit Split: How Can Borrowers Rescind Their Mortgages? .................................................... 103

HUD Reaches Conciliation Agreement on Behalf of Deaf and Hard of Hearing Applicants ................................................................ 107

Advocating for Higher Voucher Spending with your Local PHA .............................................. 109

Recent Cases ................................................................110

Recent Housing-Related Regulations and Notices ..120

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Certiorari Granted in TILA Circuit Split: How Can

Borrowers Rescind Their Mortgages?

By Clare Lakewood, NHLP Legal Volunteer*

On April 28, 2014, the U.S. Supreme Court granted certiorari to the homeowner-petitioners in Jesinoski v. Countrywide Home Loans.1 The Court is expected to resolve a deepening circuit split that has developed since 2012 regarding borrower rescission rights under the Truth in Lending Act (TILA). The following article briefly describes and assesses the framework behind the split.

Background: Legal Framework and Case on Appeal

At its heart, TILA “protects consumers from fraud, deception, and abuse” within the residential mortgage marketplace by requiring lenders to disclose certain infor-mation to borrowers during the loan origination process.2 TILA grants borrowers the absolute right to rescind their mortgage loan agreement in the three days following loan origination.3 If a lender fails to provide the required dis-closures, the borrower has an extended right to rescind that expires three years from loan origination.4 Impor-tantly, “to exercise the right to rescind, the consumer shall notify the creditor of the rescission [in writing]. Notice is considered given when mailed, when filed for telegraphic transmission or, if sent by other means, when delivered to the creditor’s designated place of business.”5

The Jesinoskis gave written notice to their lender that they were exercising their right to rescind within the three-year time period specified by TILA. They did not, however, file suit to enforce this rescission until after this time period expired. The Eighth Circuit, following its own precedent (and the majority view within the circuit split) held that written notice alone was insufficient to rescind the Jesinoskis’ loan agreement.6 In order to exercise their right to rescind, the Jesinoskis had to file suit against their lender within three years of loan origination.7

*Ms. Lakewood is admitted as a barrister and Solicitor of the High Court of Australia and the Supreme Court of Western Australia (2009).1Jesinoski v. Countrywide Home Loans Inc., 729 F.3d 1092 (8th Cir. 2013), cert. granted, 82 U.S.L.W. 3366 (U.S. Apr. 28, 2014) (No. 13-684).2McOmie-Gray v. Bank of Am. Home Loans, 667 F.3d 1325, 1327 (9th Cir. 2012).315 U.S.C. § 1635(a) (2011).415 U.S.C. § 1635(f) (2011).512 C.F.R. § 226.23(a)(2).6See Jesinoski, 729 F.3d at 1093.7See id.

Housing Law Bulletin • Volume 44Page 104

A minority of circuits have found that rescission merely requires written notice to the lender in the three-year time period, not the commencement of litigation. In hearing Jesinoski, the Supreme Court will likely decide which view will prevail.

Current Circuit Split

Three circuits have definitively held that written notice alone is insufficient to rescind a mortgage loan and that borrowers must file suit to enforce their rescis-sion rights in the first three years after loan origination.8 An additional two circuit courts have aligned themselves with the majority opinion, but only in an unpublished decision9 and in dicta.10 However, two other circuit courts have held the opposite: written notice is sufficient to rescind, if given within the three-year time limit.11 A third circuit court joined the minority opinion, but only in a decision where the TILA rescission issue was not dispositive.12

Majority View: Litigation Required to Exercise Rescission Right under Beach v. Ocwen

The circuit courts comprising the majority have prin-cipally relied on the U.S. Supreme Court’s opinion in Beach v. Ocwen.13 Beach, however, entailed a different fact pattern and addressed a different legal question than the circuit court cases giving rise to the split. Unlike the borrowers in the circuit court cases, the borrowers in Beach had taken absolutely no steps to rescind their loan, either by giving notice or by filing suit, within three years of loan origina-tion.14 When sued by their lenders, the Beaches asserted their right to rescind defensively. Specifically, they argued that the TILA provision at issue, Section 1635(f), governed only the initiation of a lawsuit.15 Therefore, the gen-eral rescission right survived the three-year period and could be raised as an affirmative defense, even after the three-year period had expired.16 The Supreme Court then considered the expiration of the right to rescind, not the manner in which a borrower may exercise that right. In answering the expiration question, the Court considered whether Section 1635(f) was a statute of limitation or of

8See generally Keiran v. Home Capital, Inc., 720 F.3d 721 (8th Cir. 2013); Rosenfield v. HSBC Bank, USA, 681 F.3d 1172 (10th Cir. 2012); McOmie-Gray v. Bank of Am. Home Loans, 667 F.3d 1325 (9th Cir. 2012). 9See generally Lumpkin v. Deutsche Bank Nat’l Tr. Co., 534 F. App’x 335 (6th Cir. 2013).10See Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 55-56 (1st Cir. 2002) (dicta).11See generally Sherzer v. Homestar Mortg. Servs. 707 F.3d 255 (3d Cir. 2013); Gilbert v. Residential Funding LLC, 678 F.3d 271 (4th Cir. 2012).12See generally Williams v. Homestake Mortg. Co., 968 F.2d 1137 (11th Cir. 1992).13Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998).14Id. at 410. They even acknowledged that any right that they had to institute proceedings to enforce the right of rescission had expired. Id. at 415.15Id. at 415.16Id.

repose,17 concluding the latter.18 Thus, the Court found, TILA “permits no federal right to rescind, defensively or otherwise, after the 3-year period…has run.”19

Each majority court in the circuit split has cited the Beach quote above in reasoning that written notice is insufficient to exercise a borrower’s rescission rights. The Ninth Circuit was the first court to do so in McOmie-Gray v. Bank of America.20 Acknowledging that Beach considered whether a borrower could raise the right to rescind defen-sively, the court nevertheless found that “[t]he language the [Supreme] Court used…broadly assumes that a three-year limitation governs cases where a borrower, as plain-tiff, seeks rescission of the mortgage transaction.”21 By extension, then, the Ninth Circuit reasoned that to rescind a loan, a borrower must timely file suit.22 In doing so, the court ignored the seemingly plain language of the federal regulation governing the method of notice.23 Though this regulation specifically provides that written “notification is the means by which borrowers exercise their right to rescind,” the Ninth Circuit maintained that “[r]escission is not automatic upon a borrower’s mere notice.…[T]he stat-ute and regulations contemplate that a borrower, who by sending notice has ‘advanced a claim seeking rescission,’ will seek a determination that rescission is proper.”24 That is, written notice merely notifies the lender of a borrower’s intention to rescind by ultimately filing suit.25 The Tenth Circuit cited the same language from Beach in arriving at the same holding,26 and the Eighth Circuit quickly fol-lowed suit.27

Minority View: Beach is Inapposite; Written Notice Sufficient under TILA

Though in the minority, two circuit courts have rec-ognized the problems with applying Beach to the factual and legal issues presented by borrowers who seek to

17A statute of limitation acts as a procedural bar to recovery but does not affect or extinguish the validity of the underlying right. See id. at 416-17. A statute of repose, by contrast, extinguishes a statutory right unless some action is taken to exercise that right within a particular time period. See id. at 417 (not referring to a statute of “repose” by name, but describing that type of statute).18The statute “provides that the ‘right of rescission…shall expire’ at the end of the time period. It talks not of a suit’s commencement but of a right’s duration.” Id. at 417.19Id. at 419.20McOmie-Gray v. Bank of Am. Home Loans, 667 F.3d 1325 (9th Cir. 2012).21Id. at 1328-29.22Id. at 1329-30. 2312 C.F.R. § 226.23(a)(2); see also supra text accompanying note 5.24McOmie-Gray, 667 F.3d at 1327.25See id. at 1326.26See Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1187 (10th Cir. 2012). “[T]he mere invocation of the right to rescission via a written letter, without more, is not enough to preserve a court’s ability to effectuate (or recognize) a rescission claim after the three-year period has run.” Id. at 1182.27See Keiran v. Home Capital, Inc., 720 F.3d 721, 728 (8th Cir. 2013) (expressly following Rosenfield).

Housing Law Bulletin • Volume 44 Page 105

assert their rescission rights in affirmative suits after the three-year period has expired. Both the Third and Fourth Circuits determined that Beach was concerned with the duration of the right to rescind, rather than how that right can be exercised,28 and can therefore not be used as authority on the latter question. The Third Circuit noted that the critical phrase from Beach upon which the major-ity relies29 does not indicate or address how the right is to be exercised. It merely clarifies that, whatever action is required, it must occur within three years.30 Any infer-ence or extrapolation then, regarding how a rescission right can be exercised, comes from Beach dicta, not con-clusive authority.31

In addition to distinguishing Beach, the minority points to the plain language of the TILA statute and gov-erning regulation to support its view.32 As neither Sec-tion 1635 nor its accompanying notice regulation33 refers to the filing of a lawsuit, the Fourth Circuit “refuse[d] to graft such a requirement upon them.”34 It held, instead, that a borrower may exercise his or her rescission right by providing notice to the lender by any of the methods established by regulation, including written notice to the lender.35 The Third Circuit likewise found that to adopt an interpretation of the statute that required borrowers to file suit would “infer that the statute contains additional, unwritten requirements with which obligors must com-ply—an inference that seems particularly inappropriate in light of the fact that TILA is a remedial statute that [the Court] must construe liberally.”36

Weakness of Each Position

If the majority is correct that Beach settles the issue, it would seem that those courts did not take Beach far enough. The Supreme Court stressed that Section 1635(f) establishes the life of the rescission right, not the deadline for filing a suit.37 If the very life of the right dies within

28See Sherzer v. Homestar Mortg. Servs., 707 F.3d 255, 262-63 (3d Cir. 2013); Gilbert v. Residential Funding LLC, 678 F.3d 271, 278 (4th Cir. 2012).29“[TILA] permits no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 419 (1998).30Sherzer, 707 F.3d at 263.31See id. Interestingly, the dissent in a majority case, Keiran v. Home Capital, Inc., 720 F.3d 721 (8th Cir. 2013), also questioned Beach as appropriate authority, given the different factual scenario and legal issue under consideration by that court. See Keiran, 720 F.3d at 731-32 (Murphy, J., dissenting).32“[I]f the language of a statute or regulation has a plain and ordinary meaning, courts need look no further and should apply the regulation as it is written.” Gilbert v. Residential Funding LLC, 678 F.3d 271, 276 (4th Cir. 2012) (quoting Textron Inc. v. Comm’r, 336 F.3d 26, 31 (1st Cir. 2003)).3312 C.F.R. § 226.23(a)(2); see also supra text accompanying note 5.34Gilbert, 678 F.3d at 277.35See id. at 277-78.36Sherzer v. Homestar Mortg. Servs., 707 F.3d 255, 261 (3d Cir. 2013).37“[Section 1635(f)] says nothing in terms of bringing an action but

three years then, it would seem that not only must bor-rowers file suit within those three years, but that the mat-ter be actually resolved by the courts within those three years. Nothing in Beach indicates that the right to rescind is preserved or tolled upon filing a suit. To the contrary, the Court contrasted Section 1635(f) with other limitation provisions, where filing suit did preserve the borrower’s right until the suit was resolved.38 Taking this interpreta-tion of Beach to its logical conclusion, if the right to rescind expires absolutely in three years, it is unclear why filing a suit would be any more effective than giving written notice: both would be insufficient to assert and fulfill the right to rescind.

Additionally, the right to rescind triggered by a lend-er’s nondisclosure is not the only rescission right pro-vided by TILA. Borrowers also have an absolute right to rescind within the first three days following loan origina-tion.39 No appellate court in the majority (or the minority) has suggested that to rescind under this provision, a bor-rower must file suit in those three days; a borrower need only notify their lender in writing that they are rescind-ing their loan.40 Indeed, it would seem unreasonable, if not absurd, to require a borrower to file suit within three days of loan origination to exercise their absolute right to rescind. And yet, there is no obvious distinction between the “right to rescind” in the two operative provisions: Sections 1635(a) and 1635(f).41 The right to rescind should therefore require the same notice method in each situa-tion—three days or three years. The only possible and consistent interpretation would deem written notice suf-ficient to rescind in either case.

The difficulty with at least the Fourth Circuit’s posi-tion is that it fails to address a timeframe for filing a law-suit to enforce rescission. Where a borrower gives notice, but the lender declines to actually unwind the transaction, the ownership rights in the property become uncertain. The Fourth Circuit addressed this difficulty by distin-guishing the exercise of the right to rescind from whether rescission actually occurred.42 The court, though, was silent as to a deadline for bringing a lawsuit to achieve actual rescission. The Third Circuit identified the same

instead provides that the ‘right of rescission [under the Act] shall expire’ at the end of the time period. It talks not of a suit’s commencement but of a right’s duration.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 417 (1998).38See id. at 417-18.3915 U.S.C. § 1635(a) (2011); see also supra text accompanying note 3. 40Sherzer, 707 F.3d at 264 (“If, after twenty days have passed, the lender fails to respond to the obligor’s notice [of rescission], the obligor may file suit against the lender—even though the three-day period in which he has the absolute right of rescission has long since passed.”).41It is a “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.” Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (quoting Sullivan v. Stroop, 496 U.S. 478, 484 (1990)).42Upon written notification, the parties “must unwind the transaction amongst themselves,” or the borrower must file a lawsuit so that the court may enforce the right to rescind. Gilbert v. Residential Funding LLC, 678 F.3d 271, 277 (4th Cir. 2012).

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problem, but explained that in the absence of a federal limitation period for the enforcement of those rights, an analogous limitation period would be “borrowed” from state law.43 The court also noted that the uncertainty on title would occur only in the small number of cases where the borrower timely rescinded the loan by notification, and lenders can protect themselves by filing for declara-tory relief.44

Secondary Issue: Deference to Agency Interpretation

While not considered by the Eighth Circuit in Jesinoski, this case presents the Supreme Court with an oppor-tunity to revisit the law regarding deference to federal agency interpretations of the agency’s own regulations. The Supreme Court held in Auer v. Robbins that courts must accept an agency’s interpretation of its own regula-tion, including when the interpretation is only expressed in an amicus brief, unless the interpretation is plainly erroneous.45 In the lower courts, the Consumer Financial Protection Bureau (CFPB), the agency charged with inter-preting the statute, 46 filed amicus briefs interpreting the governing regulation47 and Section 1635(f) to require only written notice for a borrower to exercise his or her right of rescission. While some circuit courts acknowledged the CFPB’s position, none gave due deference to the agency’s interpretation or considered what weight or deference the CFPB should be afforded.48

As the CFPB will likely submit a brief consistent with the view taken in the lower courts, the Court’s decision may turn on the level of deference accorded to CFPB’s interpretation. Some Justices have indicated a willingness to reconsider the Auer doctrine, 49 and Jesinoski may prove a suitable vehicle for the Court to do so. Whether the issue is ultimately addressed will depend upon whether the Supreme Court finds that the statute is clear and the

43Sherzer v. Homestar Mortg. Servs., 707 F.3d 255, 266 (3d. Cir. 2013)44Id. (noting that “the uncertainty is substantially more cabined because it would exist only as to those loans for which obligors have sent the bank written notice of rescission within the three-year period”).45Auer v. Robbins, 519 U.S. 452, 462 (1997).46Regulation Z, of which the operative regulation (12 C.F.R. § 226.23(a)(2)) is a part, was promulgated by the Federal Reserve Board in 1969. Gambardella v. G. Fox & Co., 716 F.2d 104, 112 (2d Cir. 1983). In 2010, the Consumer Financial Protection Bureau (CFPB) was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 2021 of the Dodd-Frank Act transferred rule-making authority under TILA from the Federal Reserve Board to the CFPB. Mary Curtin, Cleaning House: Achieving Effective Consumer Protection Through TILA Reform, 45 Ariz. St. L.J. 1685, 1687, n.19 (2013).4712 C.F.R. § 226.23(a)(2).48See, e.g., Sherzer, 707 F.3d at 257 (3d Cir. 2013) (acknowledging the CFPB’s position that a mortgage may be rescinded “simply by sending written notice to the lender within the three-year period,” but remaining silent on the weight to be accorded to that position).49Kevin O. Leske, Between Seminole Rock and a Hard Place: A New Approach to Agency Deference, 46 Conn. L. rev. 227, 265-71 (2013) (describing the possibility of revisiting Auer).

view that the CFPB and the Solicitor General’s Office will advance in the United States’ amicus brief.

Conclusion

Federal appellate courts are currently split over whether a borrower must go beyond providing writ-ten notice of rescission, by filing suit, to enforce his or her rescission right. This split, though, is really over the authority of the Supreme Court’s Beach decision. The Eighth, Ninth, and Tenth Circuits have found Beach dis-positive and controlling authority, requiring borrowers to file suit in the three-year timeframe. The Third and Fourth Circuits have found Beach inapposite, and that the plain language of the TILA provisions and the notice regulation require written notice only. Jesinoski will, at the very least, determine the applicability of Beach. It will also, hopefully, provide much-needed clarity about what is required of borrowers exercising their right to rescind a mortgage loan transaction. Until the Court decides the issue, advocates representing clients outside the Third and Fourth Circuits can consider preserving their client’s rescission rights by filing suit within three years of loan origination. n

Housing Law Bulletin • Volume 44 Page 107

ducted by NFHA and other nonprofit agencies found that the deaf or hard of hearing face a variety of challenges and discrimination in the housing market.6 Such discrimi-nation includes experiencing hang ups by rental manag-ers, receiving higher price quotes for units compared to those provided to hearing individuals, and not receiving follow-up inquiries or information about housing ameni-ties or leasing specials.7

Prior CasesThe Bell Partners case is not the first time a HUD con-

ciliation agreement arose out of allegations of discrimina-tion against the deaf and hard of hearing. In February 2014, HUD reached an agreement with Mercy House Living Centers based on allegations that employees discriminated against two deaf and hard of hearing Section 8 applicants by refusing to provide an American Sign Language (ASL) interpreter, which the applicants had requested.8 Under the agreement reached in that case, the two individuals expe-riencing discrimination received $17,500.9 Mercy House Living Centers also agreed to: provide ASL interpreters, provide employees with fair housing training, and offer alternative accommodations for deaf or hard of hearing individuals when necessary for communication.10

Case law in the area of housing discrimination against the deaf and hard of hearing is limited. However, a case recently filed in federal court, Young v. District of Colum-bia Housing Authority, is addressing the issue head on. In Young, the plaintiffs (including two individuals who are deaf or hard of hearing and a nonprofit organization) allege that the District of Columbia Housing Authority violated the FHA, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act by failing or refusing to provide ASL interpreters, thereby making their program inaccessible to individuals who experience disabilities.11

inveStigAtion UnCoverS HoUSing DiSCriminAtion AgAinSt tHe DeAf AnD HArD of HeAring 4 (2013), http://www.nationalfairhousing.org/Portals/33/2013-01-09%20Are%20You%20Listening%20Now%20-%20Housing%20Discrimination%20against%20the%20Deaf.PDF. See also HUD, AnnUAL report on fAir HoUSing, fiSCAL YeAr 2011 19, http://portal.hud.gov/hudportal/documents/huddoc?id=FY2011_annual_rpt_final.pdf (noting that, in FY 2011, disability comprised 48% of complaints filed with HUD and Fair Housing Assistance Program agencies, and explaining that the large number can be attributed, in part, to “the additional protections afforded persons with disabilities under the Fair Housing Act, i.e., reasonable accommodation, reasonable modification, and accessible design and construction”).6nHfA, supra note 5, at 2.7Id. at 2-3. 8Press Release, United States Department of Housing and Urban Development, No. 14-051, HUD Announces Agreement Between Advocacy Groups and National Real Estate Company Ensuring Deaf Persons Have Equal Access to Housing (May 20, 2014) [hereinafter Press Release], http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_ media_advisories/2014/HUDNo_14-051.9Id. 10Id. 11See Complaint, Young v. D.C. Hous. Auth., No. 1:13-cv-00652 (D.D.C. May 5, 2014).

HUD Reaches Conciliation Agreement on Behalf of Deaf

and Hard of Hearing ApplicantsBy Afroz Baig, Law Clerk,

National Housing Law Project*

In May 2014, the Department of Housing and Urban Development (HUD) announced a conciliation agreement reached on behalf of the National Fair Housing Alliance (NFHA), the Austin Tenants’ Council, and the National Association of the Deaf (NAD), with housing provider Bell Partners, Inc.1 The agreement results from a HUD complaint filed by these advocacy organizations alleging that at least three Bell Partners (respondent) properties refused to offer housing to and otherwise discriminated against deaf or hard of hearing individuals.2 This concili-ation agreement illustrates the use of protections afforded under the Fair Housing Act (FHA) to combat discrimina-tion against the deaf or hard of hearing. Additionally, the agreement highlights the role of housing testers in finding and proving discriminatory policies and practices. This article describes the terms of the settlement facilitated by HUD between the complainants and Bell Partners.

Background

The FHA prohibits discrimination in various hous-ing-related transactions, including the sale or rental of housing.3 As amended, the FHA makes housing discrimi-nation on the basis of disability unlawful.4 Despite these and other legal protections that exist for persons who experience disabilities, disability discrimination is the most common type of housing discrimination alleged in HUD fair housing complaints.5 An investigation con-

*Ms. Baig is a 2015 J.D. Candidate at the George Washington University Law School.1Conciliation Agreement between National Fair Housing Alliance, Austin Tenants’ Council, National Association of the Deaf and Bell Partners, Inc., et al. FHEO Case No. 04-14-0313-8, 04-14-0321-8, 06-14-0350-8 at 3 (May 2014) [hereinafter Agreement], available at: http://portal.hud.gov/hudportal/documents/huddoc?id=14NFHA_v_BellConcil.pdf. 2The complaint lists Bell Partners, Inc. of North Carolina and Cypress Landing Partners, LLC of Georgia as the respondents. See HUD FHEO Complaint, 2 (Jan. 2014) [hereinafter FHEO Complaint], available at: http://www.nationalfairhousing.org/Portals/33/2014-01-09%20Bell%20Partners%20complaint.PDF. Bell Partners is the authorized representative and agent for the other respondent properties.342 U.S.C.A. § 3604 et seq.4The FHA makes it illegal to “discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to any buyer or renter” because of disability. 42 U.S.C.A. § 3604(f)(1). Additionally, the FHA prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling” on the basis of disability. 42 U.S.C.A. § 3604(f)(2).5nAt’L fAir HoUS. ALLiAnCe (nfHA), Are YoU LiStening now?: A nAtionAL

Housing Law Bulletin • Volume 44Page 108

The court recently denied the housing authority’s motion to dismiss, meaning that this suit could add to the devel-opment of this area of housing law.12

Bell Partners Investigation and Complaint NFHA, the Austin Tenants’ Council, and NAD filed a

complaint with HUD against the respondents in January 2014.13 The complaint alleged that deaf and hard of hear-ing individuals were discriminated against, as revealed by testing.14 The complaint further alleged that when deaf or hard of hearing individuals contacted Bell Part-ners properties in Savannah, Georgia or Austin, Texas using the IP Relay System, 15 their calls were sent directly to voice mail, or agents hung up on them. Complainants also recounted an alleged incident during one of their testing calls, where an agent for respondents picked up a call made using the IP Relay System, stated that she was not interested, and hung up.16 Additionally, the complaint alleged that agents quoted deaf and hard of hearing indi-viduals higher rental prices and failed to offer specials or amenities that were being offered to those not using the IP Relay System.17

Terms of Agreement

The parties agreed to enter into a conciliation agree-ment a few months after the complaint was filed. This agreement should have broad reach, as Bell Partners manages and owns properties in 15 states, totaling over 64,000 homes.18 HUD will be in charge of monitoring the agreement,19 which will be in effect for three years.20 The following outlines several of the agreement’s important terms.

Monetary Relief Under the agreement’s terms, Bell Partners will pay

NFHA $150,000 in damages, $134,000 of which will go

12Young v. D.C. Hous. Auth., ___ F. Supp. 2d ___, 2014 WL 948317 (Mar. 12, 2014). 13See generally FHEO Complaint. The settlement agreement notes that complaints were filed on two dates.14See generally FHEO Complaint; see also Press Release, supra note 8.15An IP Relay System allows the deaf or hard of hearing to make phone calls using the internet, instant messenger, or wireless devices. The system allows the user to type text to an operator who will make a call and orally relay the text to the intended party of the phone call. The operator will then type out the oral response of the person on the phone call for the deaf or hard of hearing individual. This allows a deaf or hard of hearing individual to have a conversation in real time with hearing individuals. See generally Federal Communications Commission, http://transition.fcc.gov/cgb/consumerfacts/iprelay.pdf (last visited June 6, 2014). 16FHEO Complaint at 4. 17The complaint alleges that an agent quoted a deaf or hard of hearing individual three different prices for a one-bedroom unit depending on the size of the unit, with the highest quote being $1234. The same agent quoted a hearing tester $1093 for the largest one-bedroom unit. Id. at 3-4.18Press Release, supra note 8.19Agreement at 7. 20Id. at 3.

to the organization. The remaining $16,000 will go to the deaf or hard of hearing testers who suffered an injury.21 Bell Partners must also pay $25,000 in attorney’s fees.22

Employee Training Within 30 days of the agreement going into effect,

NAD will work with Bell Partners to devise an employee training plan.23 For these consulting services, Bell Part-ners will pay NAD $15,000.24

Bell Partners must also provide fair housing train-ing to new employees, with a focus on providing access to individuals who are deaf and hard of hearing.25 Topics covered by the training must include the use of assistive technology for the deaf and hard of hearing, and, in par-ticular, the use of telecommunications relay service.26 Bell Partners must train existing employees on these subjects as well.27

Written Policy Pursuant to the agreement, Bell Partners must adopt

a new written policy addressing equal access, including access for deaf and hard of hearing individuals.28 The pol-icy is subject to HUD approval and must comply with the provisions of the Fair Housing Act.29 The written policy must communicate the procedures related to handling telecommunications relay calls, and other communica-tions with the deaf and hard of hearing.30 The policy must be submitted to the HUD regional director within 30 days of NAD concluding its consulting work for Bell Partners.31 After receiving HUD approval of the written policy, Bell Partners must provide a copy of the policy to all individu-als who represent them and interact with the public.32

Conclusion

The type of discrimination alleged is a clear illustra-tion of the discrimination encountered by the deaf and hard of hearing. The HUD conciliation agreement is one representation of a possible remedy to combat such dis-crimination. Additionally, this case highlights the impor-tance of housing testers for nonprofit organizations and housing rights advocates, and how they can be used to uncover and address discriminatory practices. n

21Id. at 5. 22Id. at 6. 23Id.24Id. at 5. 25Id. at 6-7. 26Id. at 7. 27Id. 28Id. 29Id. 30Id. 31Id. 32Id.

Housing Law Bulletin • Volume 44 Page 109

Advocating for Higher Voucher Spending with your Local PHA

By Deborah Thrope, NHLP Staff Attorney and Barbara Sard, Vice President for Housing Policy,

Center on Budget and Policy Priorities

As a result of last year’s sequester that cut funding for the Section 8 Housing Choice Voucher (HCV) Program, many public housing authorities (PHAs) implemented cost-saving measures that harmed tenants. Across the country, voucher participants experienced such program-matic changes as a reduction in payment standards and revised subsidy standards, forcing families to pay higher rents and putting them at risk of losing their subsidy. It is estimated that over 70,000 vouchers were lost as a result of sequestration.1 About half of these vouchers were not restored in 2014 and it is unlikely that the FY 2015 appro-priations bill will restore a substantial amount, if any, of these vouchers.2 One, and perhaps the only, strategy left to increase renewal funding levels for the voucher pro-gram is higher PHA spending. Higher spending can be accomplished if PHAs reverse harmful policies aimed to cut spending and continue to issue vouchers. This arti-cle will briefly summarize how funding for the voucher program works, present several arguments that will help advocates engage local PHAs about increased spending, and provide effective advocacy strategies for legal ser-vices attorneys.3

Funding for the Voucher Program

Beginning in 2007, Congress initiated a policy of bas-ing voucher renewal funding on the cost of authorized vouchers used in the prior year, plus inflation.4 Therefore, PHAs’ CY 2014 renewal funding eligibility is based on leasing/costs in CY 2013, adjusted for inflation, partial-year use of new vouchers, and other factors. For FY 2014, the program is funded at 99.7% of CY renewal eligibility. Most PHAs will receive substantially more HCV funding

1Douglas Rice, Ctr. On Budget & Policy Priorities, Sequestration’s Toll: 70,000 Fewer Low-Income Families Have Housing Vouchers (2014), http://www.offthechartsblog.org/sequestrations-toll-70000-fewer-low-income-families-have-housing-vouchers/.2H.R. 4745, 113th Cong. (2d Sess. 2014); S. 2438, 113th Cong. (2d Sess. 2014) (as approved by Senate Appropriations committee, June 5, 2014). 3For more detailed information on this topic, see NHLP, Picking Up the Pieces of the Sequester: Local Advocacy Efforts to Encourage PHAs to Start Spending in 2014 (Apr. 22, 2014) (webinar), http://nhlp.org/preservation webinars.4Implementation of the 2006 HUD Appropriations Act (Public Law 109-115) Funding Provisions for the Housing Choice Voucher Program, PIH 2006-5 (HA) (Jan. 13, 2006).

in 2014 than last year. However, if they do not spend it, their funding will be cut in 2015 due to the funding for-mula. The exception is PHAs involved in the Moving to Work (MTW) Demonstration, which are funded in accord with their MTW agreement.5

Many PHAs spent down their reserves to offset last year’s budget cuts and, in turn, may argue that they want to restore their reserves.6 Replacing reserves might be appropriate for some PHAs, but only to a certain degree, because such replacement reduces 2015 funding eligibil-ity. Additionally, serving fewer families results in lower administrative fees this year.

Given the likelihood that FY 2015 funding will fail to replace lost vouchers, it is even more critical that PHAs spend now to get a larger share of next year’s funding.

Arguments to Advocate with Your Local PHA

In addition to the self-interested reasons that PHAs should spend in 2014, there are policy arguments that might help convince your local PHA to reverse harmful policies aimed to cut spending, including:

• There is a severe need for affordable housing, and PHAs should create opportunities for low-income families, especially during the housing crisis that plagues many of our communities.7

• PHAs have a duty to affirmatively further fair hous-ing and provide housing opportunities for families to move to low-poverty neighborhoods. As PHAs reduce payment standards, more and more families are forced to move to (or remain in) neighborhoods with high poverty rates, in conflict with PHAs’ decon-centration and fair housing goals.

• Programs must be strong and effective to maintain public and political support. As PHAs cut financial corners, programs will be less effective, reducing pro-gram credibility and leading to a potentially vicious cycle of underfunding.

The loss of funding as a result of sequestration affected every PHA differently; local PHAs made a wide range of policy decisions to alter the size of their programs or change the cost per unit. As a result, these arguments should be tailored to the needs of your community.

5HUD, Moving to Work (MTW), http://www.hud.gov/offices/pih/ programs/ph/mtw.6See HUD PHA reserve data, available at: http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/ programs/hcv/psd. 7Ctr. On Budget & Policy Priorities Voucher Fact Sheets by State, avail-able at: http://www.cbpp.org/cms/index.cfm?fa=view&id=3586.

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Advocacy Strategies

Legal services attorneys can play an important role in policy advocacy with their local PHA. This list is by no means exhaustive and is not limited to funding advocacy. Strategies include:

• Attend local PHA board meetings and cultivate a relationship with PHA board and staff.

• Write letters to your local PHA and HUD.

• Collaborate with special interest groups that work with populations affected by the harmful policies.

• Make a complaint to the HUD Office of Inspector General.8

• Involve tenant/resident groups in advocacy efforts.

• Start a compelling media campaign.9

• Involve a sympathetic member of Congress or city council member in your campaign.

• Reach out to support centers like the National Hous-ing Law Project that can provide tips and guidance on advocating with your local PHA.

Most importantly, act now because PHA spending will affect current participants as well as the future of the voucher program. Advocates can play a key role in pre-serving tenant-based vouchers, a key subsidy that helps low-income families obtain and maintain housing and avoid homelessness. n

8HUD Office of Inspector General, http://www.hudoig.gov/.9See, e.g., Affordable Housing Network, Priced Out of Silicon Valley: Sequester Cuts Devastate Silicon Valley’s Most Vulnerable, http://www. siliconvalleydebug.org/articles/2013/08/26/priced-out-valley-seques-ter-cuts-devastate-section-8-housing-tenants.

Recent CasesThe following are brief summaries of recently

reported federal and state cases that should be of inter-est to housing advocates. Copies of these opinions may be obtained from sources such as the cited reporter, Westlaw, Lexis, Google Scholar,1 FindLaw,2 or, in some instances, the court’s website. NHLP does not archive copies of these cases.

FEDERAL CASES

Public Housing: Non-Smoking Policies; Ripeness

Webb v. Haw. Pub. Hous. Auth., 2014 WL 1250354 (D. Haw. Mar. 25, 2014). A pro se plaintiff challenged the State of Hawaii Public Housing Authority’s (HPHA) proposed ban on smoking in all public housing units in the state, alleg-ing that the ban violated his Fourth and Fifth Amendment rights to privacy, and his Fourteenth Amendment right to due process. The court granted HPHA’s motion for sum-mary judgment for lack of subject matter jurisdiction because plaintiff’s claims were not yet ripe. HPHA had issued a memorandum notifying tenants that it would implement the no-smoking policy in the plaintiff’s state public housing project effective April 1, 2013. However, HPHA had instructed the property managers of all state public housing projects not to enforce the policy against any tenant until the Hawaii Administrative Rules were amended and adopted to include the prohibition. In a pre-enforcement challenge, the court considers a three-factor test for ripeness: “(1) whether the plaintiffs have articu-lated a ‘concrete plan’ to violate the law in question; (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings; and (3) the history of past prosecution or enforcement under the challenged statute.” Applying this test, the court held that, even assuming that the plaintiff had a “concrete plan to violate” the new policy, he failed to demonstrate an imminent threat of prosecution or a history of past pros-ecution or enforcement of the policy against any state public housing tenant. Therefore, the court found that the plaintiff lacked Article III standing and that granting leave to amend would be futile.

1scholar.google.com. 2www.findlaw.com.

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Mortgage Prepayment: Breach of Contract and Statute of Limitations

Ramona Inv. Group v. United States, ___ Fed. Cl. ___, 2014 WL 1379187 (Fed. Cl. Apr. 9, 2014). Plaintiff, Ramona Investment Group, purchased a property under Section 515 of the Housing Act of 1949. Plaintiff received low-interest mortgage loans from the Farmers Home Adminis-tration of the U.S. Department of Agriculture (USDA) and, in return, plaintiff agreed to provide low-income housing to tenants who qualified. The agreement allowed plain-tiff to prepay the mortgage and to no longer be bound by the restrictive covenants attached to the use of the subject property. Congress later passed the Emergency Low-Income Housing Preservation Act of 1987 (ELIHPA), which imposed restrictions on certain Section 515 prop-erty owners seeking to prepay their mortgages. After the passage of the ELIHPA, plaintiff filed suit alleging breach of contract and a taking under the Fifth Amendment. At the same time, plaintiff submitted a formal application for prepayment to the USDA. The USDA informed the plain-tiff that it could not pursue both actions at the same time, and that it must choose either to pursue an application to prepay the loan or seek damages in court. Plaintiff chose to pursue the prepayment application with the USDA, and voluntarily dismissed the claims filed, without prejudice. Negotiations between plaintiff and USDA failed and, in 2012, the plaintiff filed suit on the same grounds as before. The government filed a motion to dismiss, and the court considered the question of whether the six-year statute of limitations began to run when plaintiff filed the complaint, even if the complaint was later voluntarily dismissed without prejudice. The court reasoned that in a breach of contract case the statute of limitations starts running when the contract is breached; however, the court con-sidered whether this meant either the date the dismissed lawsuit was originally filed, or the requested prepayment date that USDA ultimately denied. In this case, the court concluded that breach occurred on the later date, namely when the government refused to allow plaintiff to prepay the mortgage, not the earlier date of when the original suit was filed. The court reasoned that the purpose of a volun-tary dismissal is to leave all parties in the position they would have been in if the suit had not been brought. The court held that because a voluntary dismissal amounts to a legal nullity, it cannot have the effect of triggering the statute of limitations clock. Accordingly, the court denied the motion to dismiss.

Reasonable Accommodations: Nexus Between Accommodation and Disability

Ely v. Mobile Hous. Bd., ___ F. Supp. 2d ___, 2014 WL 1356230 (S.D. Ala. Apr. 7, 2014). Plaintiff challenged Mobile Hous-ing Board’s (MHB) termination of her participation in the

Section 8 Housing Voucher (HCV) Program. Plaintiff had several children, one of whom had asthma and could not breathe if the heat was on in winter. Plaintiff sought a four-bedroom unit so that her son with asthma could have his own room and own temperature setting. MHB eventually issued a four-bedroom voucher; the voucher stated that it would not be extended after it expired. Plaintiff failed to locate a four-bedroom unit during the designated 120-day voucher term, and was terminated from the program. The plaintiff alleged that MHB violated: (1) her due process rights by terminating her housing benefits without ade-quate notice or a meaningful opportunity to be heard; (2) the HUD regulations by failing to inform her of her right to a hearing and failing to provide an impartial hearing officer; and (3) the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA) by both discriminating against and refusing to make a reasonable accommodation for her disabled child. The court granted MHB’s motion for summary judgment on each cause of action. The court found that plaintiff was not entitled to due process procedures because she no longer had a prop-erty interest in continued receipt of benefits under the HCV Program when she failed to lease up before the voucher expired. Moreover, the court found that HUD regula-tions did not require MHB to informally hear or review its refusal to extend the voucher term. Lastly, the court con-cluded MHB did not fail to provide a reasonable accommo-dation for three reasons: (1) plaintiff failed to provide MHB sufficient medical information for MHB to determine that her son had a disability; (2) plaintiff failed to show how the disability affected plaintiff’s ability to lease up with a voucher; and (3) plaintiff failed to ask for an extension of the voucher as a reasonable accommodation.

Reasonable Accommodations: Audiotapes for Visually Impaired Tenants

Jordan v. Greater Dayton Premier Mgmt., ___ F. Supp. 2d ___, 2014 WL 1304239 (S.D. Ohio March 28, 2014). A blind Section 8 Housing Choice Voucher (HCV) participant brought suit against the local administrator of the voucher program, Greater Dayton Premier Management (GDPM) and the public housing authority (PHA), claiming that they failed to provide her equal access to the program on the basis of her disability. Plaintiff sought a preliminary injunction compelling GDPM to provide all communications in the form of microcassette tapes. Specifically, the Section 8 par-ticipant brought claims under the Fair Housing Amend-ments Act, 42 U.S.C. § 3604(f)(3)(B), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. First, the court considered a motion to enter into evidence a voluntary compliance agreement (VCA) signed in 2006 between the PHA and HUD, whereby the PHA agreed to comply with the tenant’s requests for audio recordings. In

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allowing plaintiff to submit the evidence, the court noted that the VCA showed the PHA’s prior capacity and will-ingness to fulfill the requests of the tenant, even if it did not establish reasonableness in the present case. The court next considered the motion for preliminary injunction and whether defendants were required by HUD regula-tions to provide a visually impaired tenant with audio-tapes. GDPM argued that 24 C.F.R. § 8.6 and regulations written for implementation of Title II, 28 C.F.R. § 35.135, exempt audio recordings as required accommodations because they constitute either “device[s] of a personal nature” or “reader[s] for personal use or study.” However, similar regulations, along with GDPM’s own website, expressly mention audio recordings as among the possi-ble types of auxiliary aids that public entities are required to provide people with visual impairments. The court next addressed whether the request constituted an undue administrative burden in light of recent budget cuts to the voucher program. Relying on evidence that compliance would not unduly absorb any one caseworker’s time and that housing providers may incur some costs when grant-ing an accommodation, the court concluded that GDPM would be unlikely to show an undue administrative bur-den. Additionally, because irreparable injury would occur to the plaintiff and there would be no substantial harm to defendants, the court granted the preliminary injunction. The court noted that granting the injunction will further the goal of eliminating discrimination against persons with disabilities.

Reasonable Accommodations: Nexus Between Accommodation and Disability

Acosta v. A & G Mgmt. Co., Inc., 2014 WL 1236918 (D. Md. Mar. 25, 2014). A disabled tenant filed a pro se complaint against his landlord property management company and several individuals, alleging violations of the Fair Housing Act (FHA), Fair Debt Collection Practices Act (FDCPA), and state law. Specifically, the complaint alleged that the defendants refused to comply with requests to: (1) pay the rent on the second Wednesday of every month; (2) enter into a long-term lease; and (3) pay a reduced rent. Additionally, the complaint alleged unlawful collection of unpaid rent. The court granted defendants’ motion to dismiss on the FHA claim, finding that the complaint did not establish the necessary connection between the ten-ant’s disability and the requested accommodations, since plaintiff did not show: a nexus between the requested accommodations and his disability; that the requests were refused because of his disability; or that people without disabilities had different rental terms. Additionally, the court dismissed the FDCPA claim because the complaint did not allege either that the defendants were debt col-lectors (or represented themselves as debt collectors), or that they used a third-party debt collector—a required

element of any viable FDCPA claim. After dismissing the two federal claims, the court then remanded the case back to state court to proceed on the state law claims of libel, slander, and defamation.

Reasonable Accommodations: Denial of Reasonable Accommodation Request

Fisher v. SP One, Ltd., ___ Fed. App’x ___, 2014 WL 1015951 (11th Cir. Mar. 18, 2014). Tenant, filing pro se, alleged that his landlords violated the Fair Housing Act (FHA), Reha-bilitation Act, and Florida Fair Housing Act by refusing his request for reasonable accommodations and by retali-ating against him for filing a HUD complaint. Specifically, the suit alleged that after substantial renovations to the building, the private landlord informed tenants that large appliances would no longer be permitted in individual units. Thereafter, the tenant requested (1) that he be per-mitted to retain large personal appliances in his apart-ment and (2) that his landlords install different handrails in his bathroom. The court refused to consider the second request as a basis for an FHA violation because, while the parties disputed whether the landlord replied, neither party submitted evidence that the request was denied. In evaluating the tenant’s claim of discrimination for fail-ure to accommodate the tenant’s first request, the court granted the landlord summary judgment because the ten-ant did not present sufficient evidence to rebut the land-lord’s claims that the large appliances would overload the current electricity panels and that upgrading the current electricity panels would be prohibitively expensive. The tenant argued that past landlords had permitted tenants to possess such appliances. The court concluded that this evidence, on its own, did not rebut the landlord’s claims of financial burden since past landlords may have been unaware of the capacity issue, or circumstances might have changed. The tenant also alleged that three months after he filed a HUD complaint, the landlord relocated him while his apartment underwent renovations, and then delayed the return of his belongings. The court granted the landlord’s motion for summary judgment on the retaliation claim as well, finding that the long time between the complaint and the alleged retaliatory action, absent other evidence of retaliatory motive, was too long for an inference of causality.

Reasonable Accommodations: Adverse Rental and Financial History

Dettmer v. Tonsager, 2014 WL 1569484 (D. Wyo. Apr. 17, 2014). The court granted defendants’ motion for summary judgment on pro se plaintiff’s Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) claims, which stemmed from the denial of plaintiff’s rental application.

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Plaintiff submitted a rental application to defendant, Aspen Creek Apartments, but failed to include requisite information about previous landlords or personal ref-erences other than friends or family. Plaintiff did, how-ever, indicate on the application that he had previously filed for bankruptcy and that he had been evicted from another residence. He was initially placed on a waiting list; however, upon the application’s review, it was con-cluded that plaintiff did not meet management’s criteria. Aspen Creek notified plaintiff that he was being removed from the waiting list. At that point, the plaintiff requested that defendant provide him reasonable accommodations by disregarding his previous eviction and bankruptcy. Plaintiff did not clarify how the bankruptcy and evic-tion were related to his disability. Plaintiff had initially included federal agencies and employees as defendants; the court had previously dismissed those defendants. Regarding the instant motion, the court found that plain-tiff failed to establish a prima facie case under the FHA or the ADA because he failed to provide evidence sup-porting his claims, and acknowledged that financial his-tory is used by defendant to determine eligibility. Further, the court rejected the plaintiff’s FHA and ADA reason-able accommodation claim because he failed to produce evidence illustrating that defendant’s selection criteria affected him because of his disability, or that his request for an accommodation was reasonable under the ADA. As the plaintiff was unable to establish a prima facie case under the FHA or the ADA, the court granted defendants’ motion for summary judgment on all claims.

Fair Housing Act: Rule 30(b)(6) Witnesses

Painter-Payne v. Vesta West Bay, LLC, Slip Op., 2014 WL 1599505 (S.D. Ohio Apr. 21, 2014). Plaintiffs—a disabled Sec-tion 8 Housing Choice Voucher participant and her son/live-in aide—sued the defendant property management company, claiming that they were wrongfully evicted on the grounds that the son was an alleged sex offender. Although the son had been charged with rape, the charge had been dismissed pre-trial. Plaintiffs alleged a denial of a reasonable accommodation in violation of the Fair Hous-ing Act. During discovery proceedings, counsel for plain-tiffs filed a Rule 30(b)(6) motion seeking to depose named representatives of the management company. However, the witnesses produced by the defendant were unable to testify as to the tenant’s eviction. On account of this defi-ciency, plaintiffs’ counsel sought sanctions, claiming that defendant had not chosen knowledgeable witnesses as required by Rule 30(b)(6), or properly prepared witnesses for deposition. However, the court found no such viola-tion, holding that defendant’s witnesses were sufficiently knowledgeable on the topic of the company’s general evic-tion procedures, and that no specific information about the eviction was required. Separately, though, the court

agreed to re-open discovery, finding that defendant had improperly delayed production of relevant witnesses and materials; yet, the court refused to impose sanctions since it concluded that re-opening discovery could sufficiently place the plaintiffs in the position they would have occu-pied had production been timely.

Fair Housing Act: Standing

Galveston Open Gov’t Project v. HUD, ___ F. Supp. 2d ___, 2014 WL 1760930 (S.D. Tex. Apr. 30, 2014). Plaintiffs—including Section 8 voucher participants, a neighbor of the proposed rebuild sites, and the Galveston Open Government Project (GOGP)—sought to enjoin the reconstruction of certain public housing units destroyed during Hurricane Ike. Accordingly, plaintiffs brought dis-ability and racial discrimination claims under the Fair Housing Act, as well as other claims (asserting violations of the U.S. Constitution, Title VI, and the Administrative Procedure Act). Defendants moved to dismiss for lack of standing. The Galveston Housing Authority sought to use hurricane relief funds to rebuild public housing units on two former public housing sites as part of mixed-income developments. The plaintiff Section 8 voucher partici-pants claimed that they may, or would like to, move into public housing units, but would not choose to do so if the public housing units were rebuilt in purportedly seg-regated Galveston neighborhoods. The neighbor plain-tiff, who lives ten blocks from the proposed rebuild site, claimed that rebuilding public housing in her neighbor-hood would further add to the segregation of the neigh-borhood, thereby depriving her of interracial associations. GOGP sought organizational standing by claiming that it has been unable to concentrate on its primary goal of reforming city government because of its new focus on the proposed public housing rebuild. First, the court held that the neighbor plaintiff was the only plaintiff with standing because the neighbor sufficiently alleged a con-crete and actual injury, as well as causation between the rebuild of the public housing units and the alleged injury. Second, the court held that the plaintiff Section 8 voucher participants did not have standing because their desires to someday move into public housing, without descrip-tions of concrete and specific plans, do not pose an actual or imminent injury. Finally, the court held that GOGP did not suffer a concrete injury from the plan to rebuild pub-lic housing units in Galveston. GOGP focuses on promot-ing transparent decision-making by local government, and there were no allegations that GOGP engaged in the types of activities that have established standing for fair housing groups. The court stated that simply having an interest in an issue does not confer standing on an orga-nization; standing based on alleged “distraction” from a group’s core mission would make the standing require-ment meaningless.

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Fair Housing Act: Disability Discrimination

Fishing Rock Owners’ Ass’n v. Roberts, ___ F. Supp. 2d ___, 2014 WL 1096246 (D. Or. Mar. 18, 2014). Defendants owned several lots in a subdivision and sought to run an outpatient substance abuse rehabilitation facility out of their home. One of the defendants sought a “reason-able accommodation” for the outpatient facility from the homeowner’s association, but “never specified the reason-able accommodation he sought.” Defendants also failed to respond to requests from the homeowner’s association regarding licensing for the facility. Plaintiff homeowner’s association sought declaratory judgment so as to enforce existing protective covenants and restrictions that ban commercial activity within the development. Defendants removed the action to federal court and filed counter-claims alleging that plaintiff had discriminated against defendants on the basis of disability and also engaged in retaliation—in violation of the Fair Housing Act (FHA), the Fair Housing Amendments Act of 1988 (FHAA), and state law. Defendants also sought declaratory judgment that the existing homeowner’s association rules were invalid. Plaintiffs moved for summary judgment on the counterclaims. The court concluded that defendants failed to produce any evidence that they suffered an injury, as defendants could not identify any disabled persons who sought to live in the rehabilitation facility, nor were they disabled themselves. The court also concluded that defen-dants, on their first counterclaim, failed to produce “any evidence supporting the essential elements of a reasonable accommodation claim.” On the retaliation counterclaim, the court concluded that defendants failed to refute evi-dence offered by the homeowner’s association that discus-sion of changing parking rules (the basis for the retaliation claim) took place before the association’s knowledge of the plans to operate a rehabilitation facility. The court also granted summary judgment on defendants’ third counter-claim, refusing to declare the association rules as invalid because the homeowner’s association presented evidence that appropriate procedures were followed. Accordingly, the court granted the homeowner’s association summary judgment on all three counterclaims (as the court applied the same analysis regarding the counterclaims under state law), and remanded the case to state court.

Disability Discrimination: Reasonable Modifications

Ford v. Aff’d Hous. Grp., Slip Op., 2014 WL 1233078 (S.D. Cal. Mar. 25, 2014). A housing applicant brought suit alleg-ing disability discrimination due to a complex’s unwill-ingness to make necessary modifications that would permit him to live in his unit. The suit sought compen-satory damages, statutory damages under the California Unruh Civil Rights Act and Disabled Persons Act, puni-

tive damages, treble damages, declaratory and injunctive relief, and attorney’s fees. The defendants moved for par-tial summary judgment, arguing that the plaintiff lacked standing to sue to enforce HUD regulation 24 C.F.R. § 8.22 which requires that a percentage of units in an apartment complex be accessible to persons with disabilities. Defen-dants argued that plaintiff was attempting to privately enforce HUD regulations. The court found that plaintiff was not pursuing a cause of action under the HUD regu-lation, but instead was suing under the Rehabilitation Act, as explained in plaintiff’s reply brief. Plaintiff was demon-strating a connection between defendant’s failure to meet the regulation’s accessibility requirements and defen-dant’s need to make reasonable modifications. Because plaintiff’s claims were brought under the Rehabilitation Act, the court denied defendant’s motion for partial sum-mary judgment.

Sexual Harassment; State Survival Statutes; Agency

Veater v. Brooklane Apts., LLC, 2014 WL 1350196 (D. Utah Mar. 31, 2014). Plaintiffs, disabled and elderly residents of an apartment complex, brought various claims, alleg-ing that defendant Stan engaged in a pattern of sexual harassment and other inappropriate conduct directed at plaintiffs (such as secretly recording plaintiffs). Plaintiffs received rental assistance, and thus, feared losing their subsidies and housing if they reported the behavior. Fur-thermore, plaintiffs alleged that Stan engaged in retalia-tion when plaintiffs confronted him about his conduct by threatening to evict plaintiffs. Plaintiffs brought addi-tional claims against remaining defendants for negligent supervision and retention. Several summary judgment motions were before the court. First, the court considered claims brought under the federal Wiretap Act, as well as claims for intrusion upon seclusion, for Stan’s alleged secret videotaping of residents in the property’s club-house; the court denied summary judgment motions on the issue from both plaintiffs and defendants, noting that there remained genuine issues of material fact—such as whether the clubhouse was a public area and whether the recorded residents had a reasonable expectation of privacy. The court also considered whether one of the plaintiffs, now deceased, had claims that would survive her death. The court found that, under Utah’s survival statute, the deceased plaintiff’s state law and federal Fair Housing Act claims did not survive her death. Furthermore, the court held that, under the state’s survival statute, none of the deceased plaintiff’s claims would survive because these claims relied upon statements that constitute inadmis-sible hearsay. Accordingly, the court granted partial sum-mary judgment to defendants on the deceased plaintiff’s claims. The court also rejected plaintiffs’ claims that Stan was acting as an agent of the other defendants, who have

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a prior ownership interest in the property. Plaintiffs had alleged that the other defendants had improperly trans-ferred title of the property—which was constructed under a Farmers Home Administration loan—in violation of U.S. Department of Agriculture rules. Despite this argument, the court concluded that plaintiffs failed to demonstrate the agency relationship between the other defendants and Stan. Accordingly, the court granted the other defendants (all but Stan) summary judgment on all claims.

Equitable Remedies

Cmty. House, Inc. v. City of Boise, 2014 WL 1048391 (D. Idaho Mar. 18, 2014). The City of Boise, defendant, entered into an agreement with plaintiffs (CHI) to operate a homeless shelter, with the city leasing the facility to CHI. When CHI experienced financial hardship, CHI transferred the shelter’s operation to the city, which changed the deed restriction of the facility from a general homeless shelter to a shelter for single homeless men. Eventually, the city entered into a lease agreement with the Boise Rescue Mis-sion to operate the shelter; occupants of the shelter were told they had to leave the facility, but were not given evic-tion notices. Plaintiffs CHI, as well as individual shelter residents, brought various claims against the city. At trial, plaintiffs prevailed on Fair Housing Act (FHA) claims (gender or familial status discrimination) and claims under the Idaho constitution (state free exercise clause). The instant order considered whether equitable relief was available to plaintiffs either under the FHA or state law. For instance, plaintiffs sought an order mandating that the city, among other actions: adopt policies regarding the FHA; refrain from engaging in discriminatory conduct when leasing or selling housing owned by the city; and open a homeless shelter for women, children, and fami-lies similar to the Community House shelter. The court refused to provide remedial relief, in part, because there is “no comprehensive scheme preventing private service providers, such as CHI or others, to recreate the services that Community House once provided to the homeless population.” The court also denied individual remaining plaintiffs equitable relief under the state landlord-tenant act, on the grounds that they did not pay rent, and there-fore were not part of a landlord-tenant relationship with the shelter; thus, the shelter occupants were not entitled to eviction notices. Additionally, the court denied all other claims for equitable relief.

STATE CASES

Public Housing: Firearms Policies

Doe v. Wilmington Hous. Auth., 88 A.3d 654 (Del. 2014). The Supreme Court of Delaware answered two certified questions of state law from the U.S. Court of Appeals for the Third Circuit: (1) whether the Delaware Consti-tution allows a public housing agency to adopt a policy prohibiting its residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or weapon is being transported to or from a resident’s housing unit or is being used in self-defense (Common Area Provision); and (2) whether a public housing agency may require its residents, household members, and guests to have avail-able for inspection a copy of any permit, license, or other documentation to carry such a firearm or weapon (Rea-sonable Cause Provision). Two residents of public housing facilities owned and operated by Wilmington Housing Authority (WHA) challenged WHA’s new firearms policy implementing these restrictions. Applying intermediate scrutiny, the court found that WHA failed to demon-strate that the Common Area Provision served important governmental objectives. WHA argued that it, as a gov-ernment agency as well as a landlord, had an important governmental interest in protecting the health, welfare, and safety of its residents, staff, and guests who enter WHA property. The court found this argument implau-sible because “[p]ublic housing is ‘a home as well as a gov-ernment building,’” and an individual’s “need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government.” The court held that the Reasonable Cause Provision also was overbroad because the unconstitu-tional Common Area Provision was not severable as a matter of law.

Evictions and Subsidy Terminations: Guests and Unauthorized Occupants

Matthews v. Hous. Auth. of Baltimore City, 216 Md. App. 572 (2014). A tenant appealed her termination from the Sec-tion 8 Housing Choice Voucher Program (HCVP) by the Housing Authority of Baltimore City (HABC). HABC terminated her voucher after her husband listed her HCVP address as his mailing address and HABC con-cluded that he was an unauthorized occupant. Both the hearing officer and the local court subsequently affirmed HABC’s decision. The Court of Special Appeals of Mary-land reversed, finding no evidence to support the alleged unauthorized occupancy. The court stated that nothing in HABC’s Administrative Plan allows HCVP termination when a non-household member uses the subsidized unit’s

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address as his mailing address. Also, there was no fac-tual finding that the husband was present in the unit and therefore subject to the HABC Visitor Policy; the only evi-dence presented was that the husband used the address for mailing purposes.

Evictions and Subsidy Terminations: Guest and Unauthorized Occupants

Tavarez-Vargas v. New York City Dep’t of Hous. Pres. & Dev., 115 A.D.3d 574 (N.Y. App. Div. 2014). A tenant brought an Article 78 proceeding to annul the New York City Depart-ment of Housing Preservation and Development’s (HPD) termination of her Section 8 rental assistance. The tenant had vacated her subsidized apartment after the landlord and HPD notified her that her two children were imper-missibly living in her single-occupancy unit. HPD then issued an initial termination notice because she failed to inform HPD that she had vacated the unit. After the Hearing Officer decided to reinstate the tenant’s rental assistance, HPD reversed the Hearing Officer’s decision, asserting that, because the tenant was receiving project-based assistance under the Shelter Plus Care program, she was precluded from receiving Section 8 rental assis-tance. The court rejected HPD’s argument, holding that HPD’s determination was arbitrary and capricious. The court cited HPD’s own documentation, including notices sent to the tenant, which informed the tenant that she was receiving Section 8 assistance. The court also held that HPD’s refusal to offer relocation assistance was inconsis-tent with the HPD administrative plan, which allows par-ticipants in various housing programs to move, including when the tenant has not completed the lease and the fam-ily becomes overcrowded.

Evictions and Subsidy Terminations: Recertification Issues

Loring Towers Assocs. ex rel. NHPMN Mgmt., LLC v. Fur-tick, 6 N.E.3d 563 (Mass. App. Ct. 2014). After the Boston Housing Authority (BHA) terminated a tenant’s Section 8 Housing Choice Voucher and the landlord brought an eviction action, the tenant filed a third-party impleader complaint against BHA. The tenant asserted that BHA had violated due process when terminating his benefits after the tenant failed to attend two required Section 8 voucher recertification meetings and did not respond during the subsequent 20-day appeal period. The tenant subsequently explained to BHA’s department of griev-ances and appeals that he was unaware of these meet-ings and appeal period because he had been incarcerated at the time that these notices were mailed to his apart-ment. The BHA representative informed him that a deci-sion regarding a late hearing would be issued within 90

days to the emergency shelter address that the tenant provided. When the tenant called to update his address again, BHA failed to inform him that they had mailed out notice of an adverse decision to the emergency shelter address. The trial court denied BHA’s motion to dismiss the third-party complaint and ordered BHA to retroac-tively reinstate the tenant’s benefits. The appellate court affirmed, holding that the tenant could file a third-party impleader complaint against BHA in the summary pro-cess action, and BHA violated due process in terminat-ing the tenant’s benefits. The court stated that because the landlord sought the overdue rent from the tenant in the eviction action, and BHA was potentially liable for contri-butions to the tenant’s rent, BHA was a proper candidate for impleader. The court found several due process viola-tions in the termination. First, the notice after the 20-day appeal period was defective because it did not mention that a tenant may obtain an administrative appeal hear-ing through a late request for compelling circumstances. Second, no BHA representative informed the tenant of this policy. Third, the subsequent adverse decision mailed to shelter was invalid because it was signed by an admin-istrator, not a hearing officer, as required by the BHA administrative plan.

Evictions and Subsidy Terminations: Failure to Exclude Sex Offender from Unit

Grant v. New York City Hous. Auth., 984 N.Y.S.2d 364 (N.Y. App. Div. 2014). A tenant brought an Article 78 proceed-ing to challenge the termination of her tenancy by the New York City Housing Authority (NYCHA). In a prior proceeding, the tenant’s public housing tenancy was conditioned on the tenant excluding her son’s father, a level 3 sex offender, from her apartment. After a police officer found the excluded person in the tenant’s apart-ment subsequent to the proceeding, NYCHA terminated the tenant’s public housing tenancy. The tenant claimed that NYCHA’s termination decision was not supported by substantial evidence, her due process rights were vio-lated, and the penalty of termination was arbitrary and capricious. First, the court held that the termination deci-sion was supported by substantial evidence from the tes-timony of the police officer. Second, the court held that the tenant’s due process rights were not violated because she received a notice of termination of tenancy procedures, which stated that she had a right to make a statement in mitigation, and the hearing officer had no legal duty to inform her of this provision. Third, the court held that the penalty of termination did not shock the court’s sense of fairness because a lesser penalty previously imposed had been unsuccessful. Finally, the court held that the tenant was not entitled to her attorney’s fees since she was not the prevailing party.

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Evictions and Subsidy Terminations: Criminal Conduct

Ortegon v. Hous. Auth. of Bexar Cnty., 2014 WL 1713992 (Tex. App. Apr. 30, 2014). The Court of Appeals of Texas affirmed the trial court’s order awarding Housing Authority of Bexar County (HABC) possession of the appellant’s home, which she leased from HABC under a Low Rent Dwelling Lease agreement. The lease agreement expressly prohib-ited the appellant from engaging in any criminal activ-ity that would threaten residents or HABC employees. During a bench trial, HABC employees testified that the appellant came to their offices to complain about HABC’s failure to make repairs, that she was upset and yelling, and that she threatened the employees. The appellant allegedly said, “As upset as I am right now, you’re lucky I don’t have a gun or I would start shooting people.” The appeals court concluded that the appellant’s threat con-stituted criminal activity prohibited by the lease, entitling HABC to immediate possession of the property.

Evictions and Subsidy Terminations: Breach of Lease

Grant v. New York City Hous. Auth., Slip Op., 986 N.Y.S.2d 22 (N.Y. App. Div. 2014). A public housing tenant brought an Article 78 proceeding to vacate the termination of her ten-ancy by the New York City Housing Authority (NYCHA). After the Article 78 court granted the tenant’s petition and concluded that the eviction was excessive, NYCHA appealed. NYCHA had initiated termination proceed-ings against the tenant and her five children, including two minor children, after police found marijuana, a bottle of oxycodone pills, and a loaded and operable firearm in the tenant’s unit. The tenant asserted that the penalty of termination shocks the conscience because: she had lived in the apartment for 23 years and served on the Tenants’ Association Board for the past five years; she is a single mother with two minor children, and it would be unfair to evict them based on the older children’s gun and drug possession; she was not home at the time of the search; and she was encouraging her older children to move out at the time of the incident. The court held that the facts supported the tenant’s eviction because, in permitting drugs and a lethal weapon to be present in her apartment, the tenant committed a serious breach. The court stated that the tenant’s neighbors have a right to live in a safe and drug-free environment, and that the tenant provided no evidence to support the claim that she and her younger children would likely become homeless if evicted.

Evictions and Subsidy Terminations: Notice Requirements Under State Law

Geters v. Baytown Hous. Auth., ___ S.W.3d ___, 2014 WL 1711223 (Tex. App. Apr. 30, 2014). Texas law requires a landlord to provide a tenant with at least three days’ written notice to vacate the premises before filing a forc-ible detainer action, unless the lease provides for a longer notice period. In addition, “[i]f the lease or applicable law requires the landlord to give the tenant an opportunity to respond to a notice of proposed eviction,” Texas law requires the landlord to “provide a separate, later notice to vacate” after the initial notice expires. The lease agree-ment at issue required 30 days’ notice of termination and permitted notice to vacate to run concurrently with notice of termination. Under the lease, the tenant also had a right to respond to a notice of termination and to request a hearing under the housing authority’s grievance proce-dure. Baytown Housing Authority (BHA) sent a combined notice that provided 10 days from the date of the initial notice to request a hearing, and thirty days to vacate the premises. BHA, however, filed its forcible detainer action 13 days before the 30 days’ notice period expired. The appellate court found the notice defective because (1) the two notices were combined in violation of state law and (2) BHA failed to wait until the notice period expired before filing for eviction. BHA argued that reversal was not appropriate because the tenant failed to demonstrate that she suffered injury or prejudice as a result of BHA’s early filing. The court declined to apply a harm analysis because BHA’s premature eviction filing contravened the statute’s purpose to allow a tenant to dissuade the land-lord from pursuing eviction or adequate time to move out of the property to avoid defending the eviction. The con-currence agreed that a harm analysis was not appropriate where, as here, the landlord failed to give the tenant the proper notice period, but it would be appropriate where the defect is in the manner of service or in the specificity of the contents of the notice.

Reasonable Accommodation: No Request for Accommodation Before Trial

Harris v. Metro. Dev. & Hous. Agency, Slip Op., 2014 WL 1713329 (Tenn. Ct. App. Apr. 28, 2014). A Tennessee appeals court affirmed a ruling in favor of a housing agency on claims of discrimination. A tenant claimed that she was evicted on account of her disability in violation of Tennes-see laws that mirror federal fair housing laws. In the evic-tion action, the housing agency alleged that the tenant’s live-in grandson had vandalized the flood lights on the surrounding property. At trial, the housing agency pre-sented evidence of the lease violation. The tenant denied that the floodlights had been vandalized. The tenant lost the eviction trial and then sued on the present claim,

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alleging that the landlord refused to accommodate her disabilities and intentionally discriminated against her. The court affirmed the lower court, finding that, while the landlord knew the tenant experienced a disability, the tenant failed to present evidence that she had requested a reasonable accommodation or that the requested accom-modation was necessary to afford her an equal opportu-nity to use and enjoy her dwelling. On the second issue of intentional discrimination, the court found that the tenant had provided no evidence of disparate treatment due to her disability; rather, she merely alleged that defendant’s stated reason for the eviction was a pretext. Without some evidence of differential treatment or that the eviction was related to her disability, a prima facie case of intentional discrimination was not established, and therefore the court ruled in favor of the landlord.

Evictions and Subsidy Terminations: Violation of Reporting Requirements

Kamel v. Wambua, 984 N.Y.S.2d 337 (N.Y. App. Div. 2014). A tenant filed a petition for review of New York City Housing Preservation and Development’s (HPD) deci-sion to terminate her Section 8 rental subsidy. The court unanimously confirmed this decision because substantial evidence supported the finding that petitioner violated reporting requirements. To qualify for a rent subsidy for a two-bedroom apartment, the petitioner reported that her son was a member of the household and sub-mitted his tax returns listing the petitioner’s address as his address. However, several other records, including W-2s, his driver’s license, his employment records, and a juror’s certificate, listed another address as the son’s resi-dence. Moreover, the petitioner failed to report her son’s long-term absences and his income earned from 2008 through 2011, totaling over $35,000. The court disagreed with the petitioner’s argument that HPD’s decision was “a disproportionate penalty” because “the financial harm to the agency [was] ‘small’ and ‘speculative.’” The court reasoned that enforcing income rules served “vital pub-lic interest,” and that the deterrent value of eviction was “clearly significant.” Accordingly, the court concluded that the petitioner’s misrepresentation of income war-ranted HPD’s termination decision.

Determining Annual and Adjusted Income: Child Support

Gonzalez v. Brick Hous. Auth., OCN-L-3661-13 (N.J. Super. Ct. Law Div. Apr. 22, 2014) (Unpublished). Plaintiff, a Section 8 Housing Choice Voucher participant, received a lump-sum payment of owed child support. The lump sum included back child support that predated tenant’s participation in the Section 8 program. The public hous-

ing authority (PHA) counted the lump-sum as income, claimed that the plaintiff was required to repay the PHA a certain amount of money, and sent plaintiff a notice of ter-mination. Plaintiff lost her appeal before a hearing officer contesting the inclusion of the lump sum as income. Her subsequent suit brought in superior court (where plaintiff appeared pro se) was dismissed. Plaintiff then retained counsel, and moved for a reconsideration of the superior court’s dismissal—specifically on the issues of whether the PHA properly counted the child support lump sum as income in 2013, or alternatively, whether the lump sum falls within the definition of “income” at all. The court found that the plaintiff had demonstrated that the court had overlooked controlling authority in making its pre-vious decision. While the court agreed that plaintiff’s lump-sum was “not excludable as a lump-sum addition to family assets,” the court’s inquiry did not end there. The court, citing a 1989 HUD Directive as well as the National Housing Law Project’s “Greenbook,” concluded that child support payments were not income to the extent that the back support covered time periods outside of the plain-tiff’s participation in the Section 8 program. The court noted, “Without the aid of child support payments from the children’s father…plaintiff supported herself and her children using her own resources prior to receiving rental assistance…Before September 2009, the Authority had no claim on these payments because plaintiff did not receive rental assistance.” Accordingly, the court granted plain-tiff’s motion for reconsideration and remanded the case to the PHA to recalculate plaintiff’s income.

Reasonable Accommodations: No Duty to Accommodate Pets

Mazzini v. Strathman, ___ So. 3d ___, 2014 WL 1509912 (La. Ct. App. Apr. 16, 2014). A Louisiana court of appeal affirmed a ruling in favor of a landlord in an eviction pro-ceeding. The landlord evicted the tenant for possessing a dog in violation of the lease. At the eviction trial, the tenant argued that the landlord was not entitled to a judgment of possession because she was allowed to have an emotional support animal pursuant to the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). The ten-ant testified that she needed the dog to help her cope with severe allergies and depression as a reasonable accom-modation of her disabilities. The tenant tried to enter into evidence a letter from a social worker prescribing the dog as an aid and swearing before counsel the tenant’s need for such a pet. The document was excluded at the eviction hearing on hearsay grounds because the social worker was not present to corroborate the letter. Further, the landlord had not seen the letter before the day of the hearing. Apart from this letter, the tenant did not present medical records or other corroborating evidence that she experienced a disability. In reviewing the lower court’s

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decision, the appellate court notes that having a disability does not, per se, make a person disabled for purposes of the FHA and ADA. Instead, the court must go through a three-step analysis to determine disability as set forth in Bragdon v. Abbott, 524 U.S. 624, 632-639 (1998): (1) whether the claimant’s alleged condition constitutes a “physical or mental impairment”; (2) whether the impairment “affects a major life activity”; and (3) whether the impairment substantially limits the major life activity. Here, the ten-ant submitted no evidence that her depression and aller-gies substantially limit a major life activity; therefore the trial court did not err in concluding that the landlord was under no obligation to grant the tenant’s request for an accommodation.

Persons with Limited English Proficiency: HUD LEP Guidance

Bank of Am. v. Gonzalez, No. EQCV109501 (Iowa Dist. Ct. Pottawattamie Cnty. Apr. 1, 2014) (Unpublished). Plaintiff, Bank of America, moved for summary judgment in a fore-closure action against defendants. The mortgage and note stated that defendants would comply with HUD regula-tions. Affidavits filed by two defendants raised the issue of whether Bank of America followed HUD’s “Final Guid-ance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimi-nation Affecting Limited English Proficient Persons,” 72 Fed. Reg. 2,732 (Jan. 22, 2007), which was issued by HUD as a means to ensure that recipients of federal finan-cial assistance provide meaningful language access to limited English proficient (LEP) persons. The 2007 HUD LEP Guidance requires federal financial assistance recipi-ents to, among other things, conduct a four-factor analysis to assess the need for language assistance. The court noted that, according to the affidavits filed, “there is a question as to whether this was followed by the Plaintiff.” While the court acknowledged that the HUD LEP guidance is not a regulation, the guidance “instructs recipients on the steps necessary to provide reasonable access to LEP persons in accordance with Title VI and Title VI regula-tions.” The court, referencing Federal Land Bank of St. Paul v. Overboe, 404 N.W.2d 445, 448 (N.D. 1987), reasoned that even though the relevant HUD handbook and regulations do not give rise to a private right of action, “courts have made a distinction regarding the effect of those guide-lines in state foreclosure proceedings.” Opinion at 2. The court quoted Brown v. Lynn, 392 F. Supp. 559, 562-63, for the proposition that courts possess equity powers to stop foreclosures where the forbearance provisions of the rele-vant HUD handbook have been “flagrantly disregarded.” The court denied summary judgment, as there remained a genuine issue of material fact.

Appeals: Failure to Provide Trial Court Transcripts

Balog v. Wakita, 325 P.3d 663 (Haw. Ct. App. Apr. 30, 2014) (Table) (Unpublished). Pro se defendant, a recipient of Sec-tion 8 rental assistance, stopped paying rent and lodged complaints with the landlord concerning issues with the premises. Eventually, the parties agreed to sign a mutual termination agreement. However, defendant stopped paying her portion of the rent prior to the termination of the rental agreement, and remained on the premises for two months after the termination. The plaintiff landlord sued for possession of the premises, unpaid rent, attor-ney’s fees, and damages. The lower court created a rent trust fund that required the tenant to make payments to the trust fund each month; when the tenant did not do so, she was evicted. The lower court then held a trial on the remaining claims, as well the defendant’s counterclaim, finding in favor of the plaintiff. On appeal, defendant challenged a number of the district court’s findings. The court affirmed the lower court because defendant failed to introduce trial transcripts, giving the court no basis to reverse the lower court’s factual findings or the conclu-sions of law based on these factual findings. n

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Recent Housing-Related Regulations and Notices

The following are significant affordable housing-related regulations and notices recently issued by the Department of Housing and Urban Development (HUD), the Department of Agriculture (USDA’s Rural Hous-ing Service/Rural Development (RD)), Federal Housing Finance Agency (FHFA), Federal Emergency Management Agency (FEMA) and the Department of Veterans Affairs. For the most part, the summaries below are taken directly from the summary of the regulation in the Federal Regis-ter or each notice’s introductory paragraphs.

Copies of cited documents may be secured from vari-ous sources, including the Government Printing Office’s website,1 bound volumes of the Federal Register, HUD Clips,2 HUD,3 and USDA’s Rural Development website.4

HUD Proposed Rule

79 Fed. Reg. 26,376-26,381 (May 8, 2014)Federal Housing Administration (FHA): Adjustable Rate Mortgage Notification Requirements and Look-Back Period for FHA-Insured Single Family Mortgages

Summary: This rule proposes two revisions to FHA’s regulations governing its single family adjustable rate mortgage (ARM) program to align FHA interest rate adjustment and notification regulations with the require-ments for notifying mortgagors of ARM adjustments, as required by the regulations implementing the Truth in Lending Act (TILA), as recently revised by the Consumer Financial Protection Bureau (CFPB). The first proposed amendment of this rule would require that an interest rate adjustment resulting in a corresponding change to the mortgagor’s monthly payment for an ARM be based on the most recent index value available 45 days before the date of the rate adjustment. The date that the newly adjusted interest rate goes into effect is often referred to as the “interest change date.” The number of days prior to the interest change date on which the index value is selected is called the “look-back period.” FHA’s current regula-tions provide for a 30-day look-back period. The second proposed amendment would require that the mortgagee of an FHA-insured ARM comply with the disclosure and notification requirements of the 2013 TILA Servicing Rule, including at least a 60-day but no more than 120-day advance notice of an adjustment to a mortgagor’s monthly

1http://www.gpoaccess.gov/index.html.2http://www.hud.gov/hudclips.3To order notices and handbooks from HUD, call (800) 767-7468.4http://www.rurdev.usda.gov/Home.html.

payment. FHA’s current regulations provide for notifica-tion at least 25 days in advance of an adjustment to a mort-gagor’s monthly payment.

Comments Due: June 9, 2014.

HUD Federal Register Notices

79 Fed. Reg. 21,941-21,942 (Apr. 18, 2014)Final Fair Market Rents (FMRs) for the Housing Choice Voucher Program and Moderate Rehabilitation Single Room Occupancy Program Fiscal Year 2014; Update

Summary: Today’s notice updates the FY 2014 FMRs for Santa Barbara-Santa Maria-Goleta, CA, MSA, and Stamford-Norwalk, CT, HUD Metro FMR Area (HMFA), based on surveys conducted in November 2013 by the area public housing agencies (PHAs). The FY 2014 FMRs for these areas reflect the estimated 40th percentile rent levels trended to April 1, 2014.

Effective Date: April 18, 2014.

79 Fed. Reg. 23,368-23,369 (Apr. 28, 2014)Section 8 Housing Assistance Payments Program— Fiscal Year (FY) 2014 Inflation Factors for Public Housing Agency (PHA) Renewal Funding

Summary: The Consolidated Appropriations Act, 2014 requires that HUD apply “an inflation factor as estab-lished by the Secretary, by notice published in the Fed-eral Register” to adjust FY 2014 renewal funding for the Tenant-based Rental Assistance Program or Housing Choice Voucher (HCV) Program of each PHA. HUD began using Renewal Funding Inflation Factors in FY 2012. These Renewal Funding Inflation Factors incorpo-rate economic indices to measure the expected change in per unit costs for the HCV program. The methodology for FY 2014 is similar to that used in FY 2013.

Effective Date: April 28, 2014.

79 Fed. Reg. 25,147-25,148 (May 2, 2014)Home Equity Conversion Mortgage (HECM) Program: Non-Borrowing Spouse—Solicitation of Comment

Summary: On April 25, 2014, the Federal Hous-ing Administration issued Mortgagee Letter 2014-07, announcing the amendment to HECM program regula-tions and requirements concerning due and payable sta-tus where there is a Non-Borrowing Spouse at the time of loan closing, consistent with the authority to make such changes by the Reverse Mortgage Stabilization Act, signed into law on August 9, 2013. The new HECM requirements are necessary in order to ensure the finan-cial viability of the HECM program and the Mutual Mort-gage Insurance Fund, and to comply with the statutory requirement concerning the Secretary’s fiduciary duty to the Fund. The new HECM requirements will take effect for case numbers assigned on or after August 4, 2014. This notice solicits comment for a period of 30 days on the new requirements announced in Mortgagee Letter 2014-07.

Comments Due: June 2, 2014.

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79 Fed. Reg. 26,983-26,986 (May 12, 2014)Notice of Submission of Proposed Information Collection to OMB; Emergency Comment Request Applications for Housing Assistance Payments; Notice of Proposed Information Collection for Public Comment

Summary: The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for emergency review and approval.

HUD’s Office of Multifamily Housing Programs needs to collect this information in order to establish an appli-cant’s eligibility for admittance to subsidized housing, specify which eligible applicants may be given priority over others, and prohibit racial discrimination in conjunc-tion with selection of tenants and unit assignments. HUD must specify tenant eligibility requirements as well as how tenants’ incomes, rents and assistance must be veri-fied and computed so as to prevent HUD from making improper payments to owners on behalf of assisted ten-ants. These information collections are essential to ensure the reduction of improper payments standards in provid-ing $9.5 billion in rental assistance to low-income families in HUD multifamily properties.

Comments Due: May 19, 2014.

79 Fed. Reg. 28,938-28,940 (May 20, 2014)Federally Mandated Exclusions From Income— Updated Listing

Summary: HUD’s regulations provide for HUD to periodically publish in the Federal Register a notice that lists amounts specifically excluded by any federal statute from consideration as income for purposes of determin-ing eligibility or benefits in a HUD program. HUD last published a notice that listed federally mandated exclu-sions from consideration of income on December 14, 2012. This notice replaces the previously published version, adds a new exclusion, includes an inadvertent omission, and corrects two previously listed exclusions. The notice also includes a complete updated list to reflect these changes.

Changes to the previously published list. This notice: (1) adds exclusion of any amounts in an “individual devel-opment account” as provided by the Assets for Indepen-dence Act, as amended in 2002 (Pub. L. 107–110, 42 U.S.C. § 604(h)(4)), listed as exclusion (xxiv); (2) includes previously omitted exclusion of any allowance paid under the provi-sions of 38 U.S.C. § 1833(c) to children of Vietnam veterans born with spina bifida (38 U.S.C. §§ 1802–05), children of women Vietnam veterans born with certain birth defects (38 U.S.C. §§ 1811–16), and children of certain Korean ser-vice veterans born with spina bifida (38 U.S.C. § 1821)), listed as exclusion (xvi); (3) clarifies the criteria for Section 8 participants for exclusion (viii); and (4) corrects the time-line of exclusion (xxiii) for settlement payments pursuant to the case entitled Elouise Cobell et al. v. Ken Salazar et al.

Dated: May 12, 2014.

79 Fed. Reg. 29,671-29,676 (May 23, 2014)Nondiscrimination on the Basis of Disability in Federally Assisted Programs and Activities

Summary: HUD is issuing this document to per-mit recipients of federal financial assistance from HUD (HUD recipients) to use an alternative accessibility stan-dard for purposes of complying with Section 504 of the Rehabilitation Act of 1973 (Section 504) and HUD’s implementing regulation at 24 C.F.R. part 8 (Section 504 regulation) until HUD formally revises its Section 504 regulation to adopt an updated accessibility standard. In March 2011, the Department of Justice (DOJ), pursuant to its coordination authority under Section 504, advised federal agencies that they may permit covered entities to use the 2010 ADA Standards for Accessible Design (2010 Standards) as an acceptable alternative to the Uniform Federal Accessibility Standards (UFAS) until such time as they update their agency’s regulation implementing the federally assisted provisions of Section 504. Consistent with DOJ’s advice, this document provides HUD recipi-ents the option of using the 2010 Standards under Title II of the ADA, except for certain specific provisions identi-fied in this document, as an alternative accessibility stan-dard to UFAS for purposes of complying with Section 504 and HUD’s Section 504 regulation for new construc-tion and alterations commenced on or after May 23, 2014. This document is in effect until HUD formally revises its Section 504 regulation to adopt an updated accessibility standard.

Effective Date: May 23, 2014.

79 Fed. Reg. 31,964-31,973 (June 3, 2014)Second Allocation, Waivers, and Alternative Requirements for Grantees Receiving Community Development Block Grant (CDBG) Disaster Recovery Funds in Response to Disasters Occurring in 2013

Summary: This notice advises the public of a second allocation for the purpose of assisting recovery in the most impacted and distressed areas identified in major disaster declarations in calendar year 2013. This is the fifth allocation of Community Development Block Grant disaster recovery (CDBG-DR) funds under the Disaster Relief Appropriations Act, 2013 (Pub. L. 113-2). In addi-tion to an initial allocation for disasters occurring in 2013, prior allocations addressed the areas most impacted by Hurricane Sandy, as well as the areas most impacted by disasters occurring in 2011 or 2012. In prior Federal Reg-ister notices, the Department described the allocations, relevant statutory provisions, the grant award process, criteria for Action Plan approval, eligible disaster recov-ery activities, and applicable waivers and alternative requirements. This notice builds upon the requirements of those notices.

Effective Date: June 9, 2014.

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79 Fed. Reg. 33,588-33,590 (June 11, 2014)30-Day Notice of Proposed Information Collection: Public Housing Annual Contributions Contract and Inventory Removal Application

Summary: HUD has submitted the proposed infor-mation collection requirement described below to the Office of Management and Budget (OMB) for review.

This information collection consolidates all ACC-related information collections involving the use of fund-ing and inventory changes. Section 5 of the United States Housing Act of 1937 (Pub. L. 75-412, 50 Stat. 888) permits the HUD Secretary to make annual contributions to pub-lic housing agencies (PHAs) to achieve and maintain the lower-income character of public housing projects. The Secretary is required to embody the provisions for such annual contributions in a contract guaranteeing payment. Applicable regulations are 24 C.F.R. part 941 for public housing development and 24 C.F.R. part 969 for contin-ued operation of low-income housing after completion of debt service. This collection also covers PHA submissions under Sections 18, 22, 33 and 32 that involve the authority of the HUD Secretary to approve PHA requests to remove certain public housing property from their inventories through demolition, disposition, voluntary conversion, required conversion or homeownership conveyance.

Comments Due: July 11, 2014.

79 Fed. Reg. 34,340 (June 16, 2014)60-Day Notice of Proposed Information Collection: Continuation of Interest Reduction Payments After Refinancing Section 236 Projects

Summary: HUD is seeking approval from the Office of Management and Budget for the following information collection. The purpose of this information collection is to preserve low-income housing units. HUD uses the infor-mation to ensure that owners, mortgagees, and/or public entities enter into binding agreements for the continua-tion of Interest Reduction Payments after refinancing eli-gible Section 236 projects.

Comments Due: August 15, 2014.

79 Fed. Reg. 34,341-34,342 (June 16, 2014)Notice of Proposed Information Collection for Public Comment; Public Housing Admissions/Occupancy Policy

Summary: HUD is seeking approval from the Office of Management and Budget for the information collection described below.

Statute requires HUD to ensure the low-income char-acter of public housing projects and to assure that sound management practices will be followed in the operation of the project. Public housing agencies (PHAs) enter into an Annual Contribution Contract (ACC) with HUD to assist low-income tenants. HUD regulations, Part 960, provide policies and procedures for PHAs to administer the low-income housing program for admission and occupancy. Statutory and regulatory authority grants PHAs flex-

ibility to structure admission and occupancy policies. PHAs must develop and keep on file the admissions and continued occupancy policies to meet local preferences. PHA compliance will support the statute; and, HUD can ensure that the low-income character of the project and sound management practices will be followed.

Comments Due: August 15, 2014.

Rural Housing Service Final Rules

79 Fed. Reg. 28,809-28,810 (May 20, 2014)Direct Single Family Housing Loans and Grants

Summary: The Rural Housing Service is amending its regulations for the Section 502 direct single family hous-ing loans program by reinstating language pertaining to payment assistance method 1 that was inadvertently changed or omitted when the payment subsidy regulation was revised on December 27, 2007. This action will make clear to the public that under this method, the amount of subsidy granted is the difference between the install-ment due on the promissory note and the greater of the payment amortized at the equivalent interest rate or the payment calculated based on the required floor payment.

Any adverse comments received will be considered under the proposed rule published in this edition of the Federal Register in the proposed rule section. A second public comment period will not be held. Written com-ments must be received by the Agency or carry a post-mark or equivalent no later than July 21, 2014.

Dates: This rule is effective August 4, 2014, with-out further action unless the Agency receives written adverse comments or written notices of intent to submit adverse comments on or before July 21, 2014. If the Agency receives such comments or notices, the Agency will pub-lish a timely document in the Federal Register withdraw-ing the amendment.

79 Fed. Reg. 31,845-31,848 (June 3, 2014)Intermediary Relending Program

Summary: The Rural Business-Cooperative Service (RBS) amends its regulations for the Intermediary Relend-ing Program (IRP). This action is critical to immediately address three major items. First, the Agricultural Act of 2014 incorporates the IRP into the Consolidated Farm and Rural Development Act (Con Act). Therefore the IRP will now be subject to the Con Act Section 343(a)(13) “rural and rural area” definition. Second, the Agency is making the following changes based on an Office of Inspector General (OIG) audit: removing part of the definition of “revolved funds” to eliminate public confusion on its applicabil-ity; providing stronger guidance on items that should be taken into consideration when approving subsequent loans; defining what is meant by promptly relending col-lections from loans made from the revolving loan fund account; and providing clarification when prior Agency concurrence is needed to make loans. Finally, the Agency

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is removing provisions for Rural Development Loan Fund (RDLF) servicing as there are no longer any active RDLF accounts.

Since the definition of “rural or rural area” is statu-tory, RBS is unable to change the definition of “rural or rural area” even if significant adverse comments are received. If RBS receives a significant adverse comment on any provision of this rule other than the definition of “rural or rural area,” we will publish a timely document in the Federal Register informing the public that that pro-vision will not take effect. The rule provisions that are not withdrawn will become effective on September 2, 2014, notwithstanding a significant adverse comment on any other provision, unless we determine that it would not be appropriate to do so. Any significant adverse comments will be addressed when RBS issues a final IRP rule to implement the proposed IRP rule that is also being pub-lished this date.

Dates: This direct final rule is effective September 2, 2014, unless RBS receives a written significant adverse comment or written notice of intent to submit a significant adverse comment on any provision other than the defini-tion of “rural or rural area” on or before August 4, 2014.

Rural Housing Service Proposed Rules

79 Fed. Reg. 28,851-28,852 (May 20, 2014)Single Family Housing Direct Loan Program

Summary: Through this action, the Rural Housing Service proposes to amend its regulations for the Section 502 direct single family housing loan program by reinstat-ing language pertaining to payment assistance method 1 that was inadvertently changed or omitted when the pay-ment subsidy regulation was revised on December 27, 2007. This action will make clear to the public that under this method, the amount of subsidy granted is the differ-ence between the installment due on the promissory note and the greater of the payment amortized at the equiva-lent interest rate or the payment calculated based on the required floor payment.

Comments Due: July 21, 2014.

79 Fed. Reg. 31,884-31,886 (June 3, 2014)Intermediary Relending Program

Summary: The Rural Business-Cooperative Service proposes to amend its regulations for the Intermediary Relending Program. This action is needed to address sev-eral items based on an Office of Inspector General audit: removing part of the definition of “revolved funds” to eliminate public confusion on its applicability; provid-ing stronger guidance on items that should be taken into consideration when approving subsequent loans; defin-ing what is meant by promptly relending collections from loans made from the revolving loan fund account; and providing clarification when prior Agency concurrence is needed to make loans. Finally, the Agency is removing

provisions for Rural Development Loan Fund (RDLF) ser-vicing as there are no longer any active RDLF.

Comments Due: August 4, 2014.

Department of Veterans Affairs Federal Register Notice

79 Fed. Reg. 31,182 (May 30, 2014)Proposed Information Collection (Veteran’s Supplemental Application for Assistance in Acquiring Specially Adapted Housing); Comment Request

Summary: The Veterans Benefits Administration, Department of Veterans Affairs, is announcing an oppor-tunity for public comment on information needed to determine a claimant’s eligibility for specially adapted housing grant.

Comments Due: July 29, 2014.

HUD Notices

Notice H 2014-06 (Apr. 29, 2014)Guidance on Nonprofits Assisting Government Entities in Providing Secondary Financing in Conjunction with FHA-insured Mortgages

Summary: This Housing notice clarifies whether non-profit organizations assisting with a government entity’s secondary financing program require HUD approval and placement on the Nonprofit Organization Roster.

Notice HUD 2014-07; HUD 2014-13 (May 20, 2014)Funding for Tenant-Protection Vouchers for Certain At-Risk Households in Low-Vacancy Areas— 2014 Appropriations Act

Summary: This notice provides instructions, eligibil-ity, and selection criteria on the funding process for ten-ant protection vouchers for certain at-risk households in low-vacancy areas, as provided for in the “Consolidated Appropriations Act, 2014” (Pub. L. 113-76), referred to hereafter as “the 2014 Appropriations Act,” enacted on January 17, 2014.

The 2014 Appropriations Act provides that up to $5 million of the $130 million appropriated for tenant pro-tection actions may be made available to provide Housing Choice Voucher rental assistance to residents residing in low-vacancy areas and who may have to pay rents greater than 30% of household income, as the result of: (1) the matu-rity of a HUD-insured, HUD-held or Section 202 loan that requires the permission of the Secretary prior to loan pre-payment; (2) the expiration of a rental assistance contract for which the tenants are not eligible for enhanced voucher or tenant protection assistance under existing law; or (3) the expiration of affordability restrictions accompany-ing a mortgage or preservation program administered by the Secretary. The 2014 Appropriations Act provides that the tenant protection assistance may as either enhanced vouchers or project-based voucher assistance.

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Notice PIH 2014-07 (June 25, 2013)Revision to PIH 2013-16 – Public Housing Operating Subsidy Eligibility Calculations of Calendar Year 2014

Summary: This notice provides public housing agen-cies (PHAs) with instructions for the calculation of oper-ating subsidy eligibility in Calendar Year (CY) 2014. It also informs PHAs that, in an effort to reduce their report-ing burdens, HUD will use information in its systems of record to determine operating subsidy eligibility. Cer-tain elements of the guidance and requirements in this notice are important to HUD’s commitment to providing eligibility information to PHAs prior to the start of CY 2014. The notice has been revised to: (1) remind PHAs to timely obligate their Operating Funds; (2) to make PHAs aware of the Environmental Protection Agency’s Portfo-lio Manager program and to invite them to participate in a pilot study; and (3) to alert PHAs about the Flat Rent provision included in the 2014 Appropriations Act, and to advise them that additional guidance will be forthcoming shortly.

Notice PIH 2014-08 (Apr. 30, 2014)Reinstatement and Revision of Accessibility Requirements for Native American Programs

Summary: This notice revises and extends all preced-ing PIH notices’ Accessibility Requirements for Native American Programs: Section 504 of the Rehabilitation Act of 1973; Americans with Disabilities Act of 1990; Architec-tural Barriers Act of 1968; and Fair Housing Amendments Act of 1988.

Notice PIH 2014-09 (HA) (May 12, 2014)Emergency Safety and Security Grants Annual Funding Notification and Application Process

Summary: The notice provides guidance to public housing agencies (PHAs) seeking Emergency Capital Needs funding for safety and security measures. This notice provides instructions regarding the application and funding process for emergency safety and security funding only. This notice does not apply to funding for unforeseen or unpreventable emergencies or for non-presidentially declared natural disasters. Unforeseeable or unpreventable emergencies and non-presidentially declared natural disasters will be given funding priority on a rolling basis.

Notice PIH 2014-10 (Apr. 30, 2014)U.S. Department of Housing and Urban Development (HUD) Privacy Protection Guidance for Third Parties

Summary: This notice informs all public housing agencies (PHAs) about their responsibilities for safeguard-ing personally identifiable information (PII) required by HUD and preventing potential breaches of this sensi-tive data. HUD is committed to protecting the privacy of individuals’ information stored electronically or in paper form, in accordance with federal privacy laws, guidance,

and best practices. HUD expects its third party business partners, including public housing authorities, who col-lect, use, maintain, or disseminate HUD information to protect the privacy of that information in accordance with applicable law.

Notice PIH 2014-11 (May 9, 2014)Section 184 Indian Loan Guarantee Program Processing Guidelines

Summary: The purpose of this notice is to provide information to lenders that service loans under the Sec-tion 184 Program about HUD’s guidelines and procedures that must be followed in order to receive payment under the guarantee provided by HUD.

Notice PIH-12 (HA) (May 19, 2014)Changes to Flat Rent Requirements— 2014 Appropriations Act

Summary: This notice implements Sections 210 and 243 of Title II of Pub. L 113-76, the Consolidated Appro-priations Act of 2014. Specifically, this guidance clarifies HUD’s interpretation of the statutory amendment related to flat rents and the requirement that PHAs comply with the amendments by June 1, 2014.

This notice serves as interim guidance. Section 243 requires HUD to commence rulemaking no later than six months after this notice is issued. The policy will be finalized through the rulemaking and public comment procedures. At that time, the Department will be very interested in feedback from PHAs and other stakeholders about how best to implement the policies. HUD is par-ticularly interested in the burden created by the new poli-cies, impact on PHA budgets, and impact on residents.

Notice PIH 2014-14 (HA) (June 18, 2014)Voluntary Conversion Assessment of Public Housing Agencies (PHAs) With Fewer than 250 Public Housing Units

Summary: The purpose of this notice is to offer small PHAs a streamlined cost analysis and process for the vol-untary conversion of public housing to Housing Choice Vouchers (HCVs) under the authority provided at Section 22(b)(3) of the United States Housing Act of 1937 (42 U.S.C. § 1437t(b)(3)) (1937 Act), and to clarify the applicable con-version implementation requirements of 24 C.F.R. part 972.

Notice CPD 2014-09 (June 10, 2014)Effective Date of Moving Ahead for Progress in the 21st Century Act (MAP-21) Changes to Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA) Payment Limits and Replacement Housing Payment Eligibility Criteria

Summary: The purpose of this notice is to provide guidance concerning the October 1, 2014, effective date of several provisions of Section 1521 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) that will

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change payment limits and replacement housing pay-ment eligibility criteria in the Uniform Relocation Assis-tance and Real Property Acquisition Policies Act.

Notice CPD 2014-10 (June 10, 2014)Transition Policy for Low/Moderate Income Summary Data Updates during Fiscal Year 2014 for the State Community Development Block Grant Program

Summary: This notice describes policy guidance regarding the updated 2014 Low/Moderate Income Sum-mary Data (LMISD). The LMISD support the Community Development Block Grant National Objective of provid-ing benefit to low- and moderate-income persons on an area basis.

Notice CPD 2014-11 (June 10, 2014)Transition Policy for Low/Moderate Income Summary Data Updates during Fiscal Year 2014 for the Entitlement Grantees and Nonentitlement Hawaiian County Grantees of the Community Development Block Grant Program

Summary: This notice describes policy guidance regarding the updated 2014 Low/Moderate Income Sum-mary Data (LMISD). The LMISD support the Community Development Block Grant National Objective of provid-ing benefit to low- and moderate-income persons on an area basis. n