May 19, 2019

Archives for September 11, 2013

Consumer Financial Protection Bureau Regulations and their Impact on Real Estate Transactions

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 created the Consumer Financial Protection Bureau (CFPB), a federal agency charged with regulating consumer protection for United States financial products and services. According to the CFPB website, the group is focused on one goal: “watching out for American consumers in the market for consumer financial products and services.”

In order to achieve its goal of consumer protection, the CFPB has promulgated many rules and regulations since its inception in 2011. Prior to the creation of the CFPB, there were many agencies regulating financial transactions, but some non-bank lending institutions were federally unregulated, such as pay day loan companies, private mortgage lenders, debt collectors, credit reporting agencies, and private student loan companies. These types of lenders are now covered by the new CFPB regulations.

The CFPB regulations have had a significant impact on real estate transactions. The scope of the regulations is surprisingly broad. Attorneys, real estate brokers, and mortgage loan originators especially are affected by the changing regulatory climate propounded by the CFPB.

A half-day CLE program is going be held on September 27 to clarify the CFPB’s new rules and how they will affect residential mortgage lending. Members of the faculty include Debra Still, President and CEO of Pulte Mortgage, Terry Jones of Cherry Creek Mortgage Company, Joey Lubinski of Ballard Spahr, Craig Wildrick of Zions Bancorporation and Tom DeVine of Holland & Hart. If you are involved in any aspect of mortgage lending, or have clients who are, this is an important program to attend.

CLE Program:  The New Consumer Financial Protection Bureau Regulations: What Do They Mean for Your Clients

This CLE presentation will take place on September 27, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

Colorado Supreme Court: Investigators’ Opinions of Witness Truthfulness Admitted to Explain Interrogation Tactics, Not as Opinion on Credibility

The Colorado Court of Appeals issued its opinion in Davis v. People on Monday, September 9, 2013.

Criminal Law—Admissibility of Evidence—Witness Credibility.

The Supreme Court considered whether law enforcement officials may testify about their perception of a witness’s credibility during an investigative interview. The Court held that such testimony is admissible when it is offered to provide context for the interrogation tactics and investigative decisions of law enforcement officials. Because this holding is dispositive as to all of the testimony at issue in the case, it is unnecessary for the Court to reach the question of whether an opening statement can open the door to otherwise inadmissible or irrelevant evidence.

Summary and full case available here.

Colorado Supreme Court: Grandparents and Relatives Allowed to Intervene in D&N Action Without 3-Month Time-Period Limitation

The Colorado Supreme Court issued its opinion in People in Interest of O.C. on Monday, September 9, 2013.

Dependency and Neglect—CRS § 19-3-507(5)(a).

In this dependency and neglect case, the Supreme Court held that CRS § 19-3-507(5)(a) permits parents, grandparents, and relatives to intervene as a matter of right. The Court further held that the statute’s three-month requirement does not apply to parents, grandparents, or relatives. The Court therefore affirmed the judgment of the court of appeals.

Summary and full case available here.

Tenth Circuit: Amendments to Utah’s Sexual Solicitation Statute Constitutional

The Tenth Circuit Court of Appeals published its opinion in Bushco v. Shurtleff on Monday, September 9, 2013.

Plaintiffs—Bushco Corp; Companions, L.L.C.; and TT II, Inc.  (“Appellants”)—are escort services licensed as sexually oriented businesses. Defendant is the Attorney General of the State of Utah (“Attorney General”). Plaintiffs brought a lawsuit in federal district court for the district of Utah, seeking declaratory and injunctive relief. They claimed that certain amendments (“Amendments”) to Utah Code Ann. § 76-10-1313 (“Sexual Solicitation Statute” or “Statute”)—specifically, § 1313(1)(c) and § 1313(2)—were overly broad, were unconstitutionally vague, and infringed on the right of free speech under the First Amendment of the U.S. Constitution. The parties filed cross-motions for summary judgment.

The district court held that § 1313(2) was unconstitutionally vague, and therefore ordered that that provision be severed and stricken from the statute. But the court upheld § 1313(1)(c). Appellants appealed the court’s ruling that § 1313(1)(c) was constitutional, and the Attorney General filed a cross-appeal, challenging the court’s ruling that § 1313(2) was unconstitutionally vague.

On appeal before the court were three main issues: (1) whether issue preclusion applied to the question of the Statute’s constitutionality because a district court previously held unconstitutional similar language of a predecessor statute, Utah Code Ann. § 76-10-1301(1) (“Sexual Activity Statute”); (2) whether the Amendments to the Sexual Solicitation Statute were overbroad or placed too great a burden on expression protected by the First Amendment; and (3) whether the Amendments to the Sexual Solicitation Statute were unconstitutionally vague.

The Tenth Circuit reached the following conclusions: (1) Issue preclusion did not apply, because the Predecessor Sexual Activity Statute and the Sexual Solicitation Statute are different statutes, with different purposes, and the constitutionality of the Sexual Solicitation Statute at issue in this case was not previously litigated. (2) The Amendments are not unconstitutionally overbroad because they do not encompass a substantial amount of constitutionally protected conduct. Moreover, the Amendments do not place too great a burden on Appellants’ speech rights because they pass the O’Brien test for incidental restrictions on First Amendment rights. United States v. O’Brien, 391 U.S. 367, 376 (1968). (3) Section 1313(1)(c) is not unconstitutionally vague, because it provides fair notice of the prohibited conduct and sufficient guidance to law enforcement. Similarly, § 1313(2) is not unconstitutionally vague, because it does not authorize or encourage discriminatory enforcement of the Sexual Solicitation Statute.

Accordingly, the Tenth Circuit AFFIRMED the district court’s ruling as to the constitutionality of § 1313(1)(c), but REVERSED the district court’s ruling that § 1313(2) is unconstitutionally vague.