FindACase | National Medical Imaging, LLC v. U.S. Bank, N.A.
National Medical Imaging, LLC v. U.S. Bank, N.A.
U.S. BANK, N.A., et al., Defendants.
The present motion for partial summary judgment forms the latest chapter in the ongoing litigation among National Medical Imaging, LLC, U.S. Bank, N.A., DVI Funding, LLC, and their affiliates. Because the Court writes primarily for the parties, only the background necessary for resolving the motion will be provided.
Plaintiffs National Medical Imaging, LLC and National Medical Imaging Holding Company, LLC (together, “NMI”) seek to hold ten Defendants jointly and severally liable for filing involuntary bankruptcy petitions against them in bad faith pursuant to 11 U.S.C. § 303(i)(2). Plaintiffs now move for partial summary judgment to preclude Defendants from “re-litigating” whether the involuntary petitions were filed in bad faith in light of a Florida jury's verdict that the DVI entities, U.S. Bank, and Lyon acted in bad faith in filing an involuntary bankruptcy petition against Maury Rosenberg individually, as the managing member of NMI. For reasons discussed below, Plaintiffs' motion for partial summary judgment will be denied.
The parties in this bankruptcy case are familiar foes, having spent over a decade litigating the aftermath of a complex securitization transaction. In 2000, Plaintiffs were affiliated with certain limited partnerships (the “NMI LPs”) that operated diagnostic imaging centers. The NMI LPs entered into master leases and equipment schedules (the “Master Leases”) with DVI Financial Services, Inc. (“DVI Financial”) to finance the purchase of medical diagnostic equipment. The leases were secured by a limited guaranty executed by Maury Rosenberg, the managing member of NMI, and an additional guaranty by NMI.
DVI Financial then transferred some of the Master Leases to DVI Funding, LLC, which held them directly, and the remainder were securitized and assigned to the DVI Receivables corporations. At the same time, DVI Funding entered into indentures with U.S. Bank, acting as trustee of the transaction, under which notes were issued to investors with the Master Leases serving as collateral. DVI Financial was appointed as servicer for the trustee, U.S. Bank, but after filing for bankruptcy in 2003, DVI Financial transferred its rights as servicer to Lyon Financial Services, a subsidiary of U.S. Bank.
In December 2003, U.S. Bank Portfolio Services, a Lyon subsidiary, filed lawsuits against the NMI LPs, NMI, and Rosenberg in Pennsylvania state court, alleging that the NMI LPs had defaulted on their Master Lease obligations. Several of the DVI entities then filed involuntary Chapter 11 bankruptcy petitions against NMI. On August 12, 2005, Rosenberg, NMI, the NMI LPs, and Lyon entered into a comprehensive Settlement Agreement to resolve these disputes. Pursuant to the Settlement Agreement, the involuntary bankruptcy petitions were dismissed, and Lyon agreed to restructure the repayment obligations of the NMI LPs under the Master Leases and to release NMI from all claims except those arising under the Settlement Agreement. In return, Rosenberg and NMI executed new guaranties of repayment and confessions of judgment in favor of Lyon. On March 2, 2007, DVI Funding sold all of its interests in the Master Leases to Defendant Ashland Funding, LLC (“Ashland”).
In March 2008, Lyon notified NMI and Rosenberg that the NMI LPs had defaulted on their repayment obligations under the Settlement Agreement, and in July 2008, Lyon filed a confession of judgment against Rosenberg and NMI in Pennsylvania state court. In November 2008, the DVI entities, U.S. Bank, and Lyon filed involuntary bankruptcy petitions against NMI and Rosenberg in the United States Bankruptcy Court for the Eastern District of Pennsylvania.
Rosenberg moved to dismiss the involuntary petitions against him and to transfer venue to the United States Bankruptcy Court for the Southern District of Florida, where he resides. The Rosenberg bankruptcy proceedings were transferred to that district.
Following the transfer of venue, and while Rosenberg's motion to dismiss the involuntary petition was still pending, the petition was amended to substitute Ashland in place of DVI Funding. The Florida Bankruptcy Court issued a memorandum opinion and order dismissing the amended involuntary bankruptcy petition against Rosenberg (“Rosenberg I”). On September 27, 2011, the United States District Court for the Southern District of Florida substantially affirmed the Bankruptcy Court's decision (“Rosenberg II”),  and, on July 6, 2012, the Eleventh Circuit affirmed Rosenberg II in full (“Rosenberg III”).
In the Pennsylvania bankruptcy proceedings against NMI, Ashland was added as a petitioner as successor to DVI Funding, and later joined the other petitioners in filing a Third Amended Petition. After Rosenberg I, the Bankruptcy Court for the Eastern District of Pennsylvania dismissed the involuntary bankruptcy petitions filed against NMI on the basis of the collateral estoppel effect of Rosenberg I's holdings that (1) the DVI entities and Ashland were not real parties in interest and (2) Lyon was the only creditor because the Settlement Agreement constituted a novation. The DVI entities and Ashland appealed, and this Court affirmed the Pennsylvania Bankruptcy Court's order. The Third Circuit affirmed.
While the appeals to the Southern District of Florida and Eleventh Circuit were pending, Rosenberg brought a § 303(i) sanctions claim in an adversary proceeding in the Florida Bankruptcy Court. Ashland moved to dismiss, and the Florida Bankruptcy Court granted its motion, finding that because Ashland was not a petitioning creditor in the operative underlying petition, a § 303(i) sanctions claim against it could not stand. After the reference was withdrawn from the Bankruptcy Court, the Florida District Court held a jury trial on Rosenberg's § 303(i)(2) claims for damages. The jury returned a verdict in favor of Rosenberg and against the DVI entities, U.S. Bank, and Lyon, and that verdict was upheld by the Eleventh Circuit.


Adams v. Manchester Park, L. L.C.
James A. Adams, appellant, and Rebecca Z. Adams, appellee, v. Manchester Park, L.L.C., a Nebraska limited liability company, and Southfork Homes, Inc., a Nebraska corporation, appellees.
James A. Adams, of Law Offices of James A. Adams, P.C., L.L.O., pro se. Larry E. Welch, Sr., of Welch Law Firm, P.C., Omaha, for appellee Manchester Park, L.L.C. Patrick S. Cooper, of Fraser Stryker, P.C., L.L.O., Omaha, for appellee Southfork Homes, Inc.
James A. Adams, of Law Offices of James A. Adams, P.C., L.L.O., pro se.
Larry E. Welch, Sr., of Welch Law Firm, P.C., Omaha, for appellee Manchester Park, L.L.C.
Patrick S. Cooper, of Fraser Stryker, P.C., L.L.O., Omaha, for appellee Southfork Homes, Inc.
Inbody, Chief Judge, and Irwin and Bishop, Judges.
1. Summary Judgment.Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error.In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Summary Judgment.Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute.
4. Summary Judgment.If a genuine issue of fact exists, summary judgment may not properly be entered.
5. Summary Judgment: Proof.The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.
6. Summary Judgment: Evidence: Proof.After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.
7. Summary Judgment.In the summary judgment context, a fact is material only if it would affect the outcome of the case.
8. Limitations of Actions: Appeal and Error.The point at which a statute of limitations commences to run must be determined from the facts of each case.
9. Limitations of Actions: Pleadings.If a petition alleges a cause of action ostensibly barred by the statute of limitations, such petition, in order to state a cause of action, must show some excuse tolling the operation and bar of the statute.
James A. Adams appeals the order of the Douglas County District Court granting the motions for summary judgment of appellees Manchester Park, L.L.C. (Manchester), and Southfork Homes, Inc. (Southfork). For the reasons that follow, we affirm in part, and in part reverse and remand for further proceedings.
[Manchester] makes no representation or warranty concerning the soil compaction, buildable quality or bearing capacity of the soil of the Property. [Southfork] agrees that it is solely [Southfork's] responsibility to make appropriate tests to determine the buildable quality of the Property. If any tests conducted by [Southfork] with regard to bearing values be unsatisfactory to [Southfork], [Southfork] may rescind this Purchase Contract, and the Purchase Price, or so much thereof as has been paid, will be refunded, provided that [Southfork's] right to rescind and recover such Purchase Price shall expire at closing, or upon commencement of any grading or excavation operations on the Property, whichever date is earlier. [Southfork] acknowledges in the preparation of the lot for sale, certain changes in the contour of the Property's terrain and slope may have been made which could have an effect upon the drainage of both the lot and area in general. [Southfork] does hereby acknowledge these circumstances and does hereby release and discharge [Manchester] from any and all responsibility for the buildable quality of the lot and the control of surface water of any kind.
Special consideration is needed when building on a home site that is not owned or optioned by Southfork/Highland Homes . In the event additional (or removal) fill dirt is required and/or unforeseen grading becomes necessary, all associated costs will be borne by the purchaser. It is also the responsibility of the purchaser to be certain the home site is buildable.... Special design footings or foundation costs caused by the nature of the building site will also be borne by the purchaser/buyer.
It was not until August 18 that the warranty deed for lot 178 between Southfork and Manchester was executed.
foundation walls.” The warranty deed was filed with the Douglas County register of deeds on October 3.
According to the Adamses, within approximately 6 months, they began to notice problems with the home, including cracking, heaving, and other defects in the foundation. The Adamses' home experienced roof leaks, basement tiles that were heaving and cracking, and numerous windows that would not open. The Adamses immediately contacted Southfork for inspection and repair of the conditions pursuant to the 1–year limited warranty. In her affidavit, Rebecca indicated that she was told by Southfork to wait “until the one year mark” for any and all drywall repairs, because those would only be completed one time pursuant to the 1–year limited warranty. In or around September 2008, Southfork hired a contractor to repair the cracks in the drywall, but shortly thereafter, the cracking reappeared. Several service providers were contacted from 2007 to 2009 to repair the drywall cracks, roof leaks, windows, doors, and cracking tile in the basement floor. In December 2009, the Adamses hired a company specializing in basement repair to inspect the problems, which company reported to the Adamses that there was a potential issue with the foundation of the home.
damage, but that additional movement should be expected and would continue.
On September 22, 2011, the Adamses filed a complaint against Manchester and Southfork which alleged a breach of implied duty to perform in a workmanlike manner and warranty of habitability, negligence, fraudulent concealment, and breach of express warranty. Southfork filed an answer and affirmative defenses that the Adamses failed to state a claim upon which relief may be granted, that the Adamses failed to plead with particularity, and that the complaint was barred by the statute of limitations and the parties' purchase agreement. Manchester filed a similar answer.
Thereafter, both Manchester and Southfork filed motions for summary judgment. A hearing on the motions was held, and evidence was received by the district court.
which while not necessarily indicative of the specific cause of said deficiencies would have led persons of ordinary intelligence and prudence on inquiry, if pursued, to the discovery of facts constituting the basis of the cause of action and which in fact did lead in this instance to the discovery of the alleged deficiency constituting the basis of the cause of action herein.
The court found that those deficiencies were discovered by the Adamses between March and September 2008 and that in applying the 2–year discovery exception to the statute of limitations, the result was the statute of limitations expired, at the latest, in September 2010, which was 1 year prior to the filing of the complaint.
The court further determined that in addition to the statute of limitations, there was no dispute that the Adamses had the obligation to be sure that the lot was buildable pursuant to the August 2006 purchase agreement with Southfork. Further, the court found there was no genuine issue of material fact that neither Manchester nor Southfork had fraudulently concealed, either by deception or by a violation of a duty, material facts which prevented the Adamses from discovering the alleged soil compaction deficiency.
The Adamses filed a motion for new trial and rehearing, which was overruled. On April 23, 2013, the district court entered an amended order finding that the previous order dismissing the complaint be amended to include sustaining the motion for summary judgment as to count VI as well. It is from this order that James has timely appealed to this court.
James assigns, rephrased and consolidated, that the district court erred in granting Manchester's and Southfork's motions for summary judgment and dismissing the Adamses' complaint.
STANDARD OF REVIEWSummary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Harris v. O'Connor, 287 Neb. 182, 842 N.W.2d 50 (2014). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.
James argues the district court erred by sustaining Manchester's and Southfork's motions for summary judgment on the bases that the Adamses' complaint was time barred by the statute of limitations and that the Adamses had a contractual obligation to ensure that lot 178 was buildable under the terms of the purchase agreement. Further, James argues that the district court erred in failing to find that the doctrine of fraudulent concealment barred the statute of limitations defense.
Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Harris v. O'Connor, supra. Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute. Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013). If a genuine issue of fact exists, summary judgment may not properly be entered. Id.
The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Id. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. Id. In the summary judgment context, a fact is material only if it would affect the outcome of the case. Id.
James argues that summary judgment was not proper because there was a genuine issue of material fact related to the statute of limitations.
Any action to recover damages based on any alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. If such cause of action is not discovered and could not be reasonably discovered within such four-year period, or within one year preceding the expiration of such four-year period, then the cause of action may be commenced within two years from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages ... more than ten years beyond the time of the act giving rise to the cause of action.
The point at which a statute of limitations commences to run must be determined from the facts of each case. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999) ; Teater v. State, 252 Neb. 20, 559 N.W.2d 758 (1997) ; Gordon v. Connell, 249 Neb. 769, 545 N.W.2d 722 (1996) ; Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988). If a petition alleges a cause of action ostensibly barred by the statute of limitations, such petition, in order to state a cause of action, must show some excuse tolling the operation and bar of the statute. Teater v. State, supra .
compaction, buildable quality or bearing capacity of the soil of the Property. [Southfork] agrees that it is solely [Southfork's] responsibility to make appropriate tests to determine the buildable quality of the Property. If any tests conducted by [Southfork] with regard to bearing values be unsatisfactory to [Southfork], [Southfork] may rescind this Purchase Contract, and the Purchase Price, or so much thereof as has been paid, will be refunded, provided that [Southfork's] right to rescind and recover such Purchase Price shall expire at closing, or upon commencement of any grading or excavation operations on the Property, whichever date is earlier. [Southfork] acknowledges in the preparation of the lot for sale, certain changes in the contour of the Property's terrain and slope may have been made which could have an effect upon the drainage of both the lot and area in general. [Southfork] does hereby acknowledge these circumstances and does hereby release and discharge [Manchester] from any and all responsibility for the buildable quality of the lot and the control of surface water of any kind.
On August 18, 2006, the warranty deed between Manchester and Southfork was executed. Thus, in 2004, when Southfork entered into a contractual agreement with Manchester, Southfork knew or should have known about possible defects in the grading of the lot and was in a position of knowledge regarding the buildable quality of lot 178, well before any agreement was entered into with the Adamses. The record indicates that Southfork, at no time, performed any testing on the grading or soil for lot 178.
the construction of a new home, the Adamses did not own lot 178. Instead, Southfork had previously entered into a contract to purchase the lot from Manchester, which lot was deeded to Southfork on August 18. The Adamses are not contractually responsible to ensure the buildable quality of the lot, and instead, the responsibility remains with Southfork. The district court erred in its determination that the Adamses were contractually required to ensure that the lot was buildable, which responsibility rested, pursuant to the 2004 contract between Manchester and Southfork, with Southfork. Manchester had no contractual obligation to the Adamses, and the district court did not err in granting Manchester's motion for summary judgment and in dismissing the Adamses' complaint as to Manchester.
As noted above, the basic statute of limitations applicable in this case is “four years after any alleged act or omission constituting [a] breach of warranty or deficiency.” § 25–223. The statute of limitations pursuant to § 25–223 between Southfork and the Adamses for a breach of warranty would not begin at the time the lot was graded in 2003, as Southfork argues, because the Adamses were not in any position to have any knowledge about the grading completed at that time.
On September 19, 2007, Southfork issued a 1–year limited warranty to the Adamses. Almost immediately thereafter, the Adamses began to have problems with the home, which problems Southfork indicated were natural in the first year of a newly built home. Those problems included, but are not limited to, cracks in the drywall, windows which would not open, roof leaks, “nail pops,” door misalignment, and tile cracking in the basement. The Adamses contacted Southfork for repair pursuant to the limited warranty and were instructed to wait until the end of the warranty, at which time repairs would be made all at one time. In or around September 2008, a year after the warranty was issued, Southfork hired a contractor to make repairs to the drywall. The 1–year limited warranty expired at that time in September 2008.
The record indicates that almost immediately after the expiration of Southfork's warranty, the Adamses began to observe recurring problems as they had since moving into the home.
The Adamses contacted Southfork, which refused to do anything further, and so through September 2010, the Adamses contacted and hired various contractors to make repairs on the foundation, windows, drywall, flooring, and doors.
It is at this point in the case, at the expiration of the 1–year limited warranty on September 19, 2008, that the statute of limitations pursuant to § 25–223 commenced for an action based on an “alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property” between Southfork and the Adamses. The Adamses filed their complaint against Southfork with the district court in September 2011, which is well within the 4–year statute of limitations pursuant to § 25–223. The district court erred when it determined, as a matter of law, that the statute of limitations had run, preventing the Adamses from pursuing their action against Southfork when the statute of limitations had clearly not yet expired. Therefore, we reverse the order of the district court granting Southfork's motion for summary judgment and dismissing the Adamses' complaint against Southfork, and we remand the matter for further proceedings.
Having determined that the district court erred in determining there was no genuine issue of material fact and that the Adamses timely filed their complaint prior to the expiration of the statute of limitations in § 25–223, we need not address James' contention that the district court erred by finding there to be no fraudulent concealment which would estop Southfork from claiming a statute of limitations defense. See Svehla v. Beverly Enterprises, 5 Neb.App. 765, 567 N.W.2d 582 (1997) (appellate court need not engage in analysis which is not needed to adjudicate case and controversy before it).
statute of limitations, in granting Southfork's motion for summary judgment, and in dismissing the Adamses' complaint. Therefore, we reverse the order of the district court granting Southfork's motion for summary judgment and remand the matter as to the Adamses' complaint against Southfork back to the district court for further proceedings consistent with this opinion.
Affirmed in part, and in part reversed and remanded for further proceedings.


Defendant, who pled guilty to two (2) counts of Simple Assault relating to his assault of his significant other and her two (2) year old toddler son pursuant to a plea agreement calling for the imposition of a probationary sentence, filed a Post Sentence Motion to Modify Sentence, asserting that the probationary sentence imposed for two (2) years less one (1) day is unduly excessive because the Court erred in reading and considering the Affidavit of Probable Cause appended to the Criminal Complaint in imposing sentence.
1. The court is not required to provide a detailed explanation of all factors considered in imposing sentence when the sentence imposed is within the standard range of suggested sentences by the Pennsylvania Sentencing Guidelines.
2. In determining the duration of a sentence, the court is required to consider the nature and circumstances of the crime committed by the defendant.
3. When a defendant pleads guilty to an offense, a sentencing court is not bound by the strict rules of evidence in determining the nature of the act underlying the crime to which the defendant pled guilty.
4. Consideration of hearsay information at sentencing is consistent with the notions of due process as long as there is a sufficient indicia of reliability of the information.
5. When hearsay information is considered by the court at sentencing, the hearsay information must be part of the record and the defendant must have the opportunity to disprove its accuracy.
6. Material alleged in an affidavit of probable cause appended to the criminal complaint properly is considered by the court to define the circumstances underlying an alleged offense at sentencing unless a defendant or his or her attorney specifically challenges some aspect of the affidavit of probable cause before sentencing.
7. In light of the fact that Defendant never challenged any aspect of the Affidavit of Probable Cause or the Criminal Information and acknowledged committing the crimes alleged based upon that information when he pled guilty to the offenses, the Court properly considered the Affidavit of Probable Cause in determining and imposing an appropriate sentence.
L.C.C.C.P. No. CP-38-CR-0002075-2017, Opinion by Bradford H. Charles, Judge, October 10, 2018.
AND NOW, this 10th day of October, 2018, upon consideration of the Motion to Modify Sentence filed by the DEFENDANT, and in accordance with the attached Opinion, said Motion to Modify Sentence is denied.
The Defendant is advised that he has thirty (30) days from today’s date in which to file an appeal of this decision with the Pennsylvania Superior Court.
Displaying an almost unfathomable amount of chutzpah, the DEFENDANT has appealed his Judgment of Sentence, claiming that the length of his probation is too long. The DEFENDANT’s primary argument is that the Court erred by reading and considering the Affidavit of Probable Cause appended to the Criminal Complaint. We author this Opinion to re-emphasize how fortunate the DEFENDANT is to not be in prison. At the same time, we also will take the opportunity provided by the DEFENDANT’s arguments to reaffirm the ability of a sentencing Judge to read and consider what is included in an Affidavit of Probable Cause.
On November 12, 2017, Lebanon City Police Officer Ryan Adams was dispatched to a domestic dispute at 109 North Twelfth Street in the city. According to the Affidavit of Probable Cause appended to the Criminal Complaint, a domestic violence victim called 911 to indicate that she was in immediate need of police assistance. The phone call was then disconnected. The Affidavit chronicled that when Officer Adams arrived on scene, he encountered the victim and her two-year old son covered in blood. The officer noted lacerations to the cheek of the adult victim and the corner of the mouth of the two-year old toddler.
According to the Affidavit of Probable Cause, the victim reported that the DEFENDANT had struck her in the face with a closed fist. He also pulled her hair and pushed her down on to a bed on top of the toddler who was sleeping at the time.
Based upon the facts set forth in the Criminal Affidavit, police filed charges of Endangering the Welfare of Children and two counts of Simple Assault. These charges were bound over to Court. On December 8, 2017, the Commonwealth filed a Criminal Information. Count One charged the DEFENDANT with Endangering the Welfare of Children and alleged that the DEFENDANT caused injury to the two-year old toddler by causing the adult female victim to fall on top of him. Count Two alleged Simple Assault relating to the toddler. Count Three alleged Simple Assault relating to the adult female.
On July 27, 2018, the DEFENDANT entered a plea of guilty. During the Guilty Plea colloquy, the DEFENDANT acknowledged receiving and reading the Criminal Complaint and the Criminal Information. Although the Commonwealth withdrew Count One, the DEFENDANT acknowledged that he was entering a Guilty Plea to Counts Two and Three because he did the things that were charged against him.
“I think you’ve earned prison time for that [the assault]. I don’t feel strongly enough about it that I am going to reject the plea agreement, but here’s what I did. In my form Order that I’ve prepared, I wrote “The Defendant received a huge break today. If he violates, he will receive at least 5 months in the Lebanon County Prison.” So if you screw this probation up, you don’t report, you test positive, you do anything else to mess up, then I’m going to give you the time in jail that I think you’ve earned as a result of this.” (Sentencing N.T. 3-4).
This Court imposed a sentence upon the DEFENDANT of 2 years less one day probation. This sentence complied with the parties’ plea agreement and it was within the standard range of the Sentencing Guidelines. No argument to the contrary was even proffered at or after sentencing.
On September 24, 2018, the DEFENDANT filed a Post-Sentence Motion. He sought a Modification of Sentence by claiming that 2 years less a day of probation “was unduly excessive.” In his motion, the DEFENDANT further alleged that this jurist erred by taking into consideration facts that were included in the Affidavit of Probable Cause. We issue this Opinion to deny the DEFENDANT’s Request to Modify Sentence and to reaffirm the ability of this Court to review and consider Affidavits of Probable Cause at the time of sentencing.
Initially, we wish to emphasize that the sentence imposed complied with the parties’ plea agreement and was within the Standard Range of Pennsylvania’s Sentencing Guidelines. As such, this Court was not required to provide a detailed explanation of all factors considered when imposing the sentence. See, e.g. Commonwealth v. Boyer, 856 A.2d 149 (Pa. Super. 2004); Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006. Nevertheless, the Court did express to the DEFENDANT disdain about his conduct and about the fact that it resulted in injury to both a 2-year old child and the child’s mother.
In exercising discretion concerning the duration of a sentence, Courts are required to consider the nature of the act committed by the Defendant. Pennsylvania’s Sentencing Statute requires the Court to consider “the gravity of the offense”. See, 42 Pa. C.S.A. § 9721. In assessing whether a prison sentence should be imposed, Pennsylvania’s Judiciary Code requires a Court to consider “the nature and circumstances of the crime…” 42 Pa. C.S.A § 9725. In the case of Commonwealth v. Boyer, 856 A.2d 149 (Pa. Super. 2004), Pennsylvania’s Superior Court stated: “In imposing sentence, the Trial Court is required to consider the particular circumstances of the offense…” Id at page 154 (emphasis supplied).
In the case where a Defendant is found guilty at trial, the Trial Judge imposes sentence because he/she was present to hear all of the testimony presented to the jury. In a case involving a guilty plea, the Sentencing Judge does not have the benefit of being personally present to watch testimony as it unfolds. It part because of this, our Appellate Courts have ruled that sentencing Courts are not bound by strict rules of evidence. In Commonwealth v. Orsino, 178 A.2d 843 (Pa. Super. 1962), the Superior Court stated: “The Court in sentencing may receive any relevant information which will enable it to exercise its discretion in determining the proper sentence or penalty…A proceeding held to determine sentence is not a trial, and the Court is not bound by the restrictive Rules of Evidence properly applicable to trials.” Id at page 847. See also, Fed.R.Ev. 1101(d)(3)(Rules of Evidence not applicable at Sentencing). Our nation’s Highest Court has declared that use of hearsay information at sentencing is consistent with the notions of due process “as long as there is sufficient indicia of reliability.” Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed. 2d 720 (1991). When hearsay information is considered by a Court at sentencing, that hearsay must be part of the record and the Defendant must have the opportunity to disprove its accuracy. Commonwealth v. Berrigan, 535 A.2d 91 (Pa. Super. 1987).
In Lebanon County, information about the circumstances of an offense is presented to the Court through the Affidavit of Probable Cause appended to the Criminal Complaint. In each and every case, the Affidavit is presented to the Judge prior to sentencing. Until or unless a Defendant disputes the accuracy of the Affidavit, Lebanon County Judges will consider it as defining the circumstances of an offense. This is the sentencing process that has been employed in Lebanon County for decades.
In every case presented to this Court for sentencing, the Defendant has the opportunity to challenge what is in the Affidavit of Probable Cause. In many cases, defense attorneys do just that by stating something to the effect: “My client is pleading guilty because his conduct fits the elements of the offense, but he does not agree to everything set forth in the Affidavit of Probable Cause.” Invariably, when such a statement is made, we flesh out on the record what it is that the Defendant acknowledged doing and what it is that he disputes. In some cases, we even scheduled factual hearings to resolve disputes about the circumstances of the offense before we imposed sentence.
In this case, the DEFENDANT had the opportunity to dispute what was stated in the Affidavit of Probable Cause. When asked to provide comment, the DEFENDANT declined to do so. (N.T. 3). After being confronted by the Court’s disdain about what he did, the DEFENDANT responded that he understood the Court’s admonition but provided no additional comment.
Under the circumstances of this case, the Court was justified in sentencing the DEFENDANT based upon the premise that he assaulted an adult female and caused her injury. Moreover, the Court was justified in concluding that during the course of the assault, the DEFENDANT caused a 2-year old toddler to become injured. Our sentence of 2 years less a day probation was based upon our conclusions about the circumstances of the DEFENDANT’s offense. We stand by those conclusions and by the sentence we imposed.
We have chosen to author an Opinion rather than a simple Court Order to deny the Motion to Modify Sentence. We have done so because it has been over twelve years since this Court has decided Commonwealth v. Byle, supra. and because we wish to reaffirm for the entire Lebanon County Defense bar that we will consider the Affidavit of Probable Cause as defining the circumstances of a Defendant’s offense unless the Defendant or his attorney specifically challenges some aspect of the Affidavit at or before sentencing.
Here, the DEFENDANT never challenged any aspect of the Affidavit of Probable Cause or the Criminal Information. To the contrary, he acknowledged committing the crimes of Simple Assault as it relates to both the 2-year old toddler and the toddler’s mother. Given these facts, it is disingenuous for the DEFENDANT to now claim that the Court acted inappropriately in sentencing him for what he admitted doing. With that being said, an Order will be entered today denying the DEFENDANT’s Motion to Modify Sentence.
1 Apparently, the adult victim reconciled with the DEFENDANT. She requested leniency.


DAVINDER SINGH, Petitioner, v. JEFF SESSIONS,*United States Attorney General, Respondent.
Davinder Singh, a native and citizen of India proceeding pro se, petitions for review of an order issued by the Board of Immigration Appeals (BIA) denying his second motion to reopen. We exercise jurisdiction under 8 U.S.C. § 1252 and deny the petition.
Mr. Singh entered the United States in March 2014 and was detained by the Department of Homeland Security (DHS), which initiated removal proceedings. Mr. Singh was released on bond, and he provided a Tennessee address as his residence. In April 2014 he hired Genet Getachew to represent him and to file a motion for change of venue. According to Mr. Singh, she responded to his inquiries by stating that it was “in process” and “still pending,” but she never actually filed the motion. R. at 20, 21. He concedes that she did inform him that since no such motion had been granted he still needed to appear at his August 2014 hearing in Utah.
In July 2014 Mr. Singh hired Mohammed Arif, whom he never met in person, to represent him at the hearing. At the time, Mr. Singh “believed [Mr.] Arif to be an attorney as [Mr. Singh] was informed that [Mr.] Arif frequently visits the detention center in Eloy, Arizona, and files cases on behalf of the detainees.” Opening Br. at 4. Mr. Singh subsequently came to believe that Mr. Arif was not admitted to practice law.
On the day of the hearing, Mr. Singh told Mr. Arif that he would not be able to attend the hearing due to a back injury. For unexplained reasons, another individual actually represented Mr. Singh at the hearing.1 The representative stated that Mr. Singh was unable to appear due to lower-back pain. He presented a letter from Mr. Singh's sponsor stating that Mr. Singh's back injury prevented him from traveling by bus to Utah and that he had no other way get there. The representative also presented an address-change form providing a New York address as Mr. Singh's current residence and requested a continuance to file a motion for change of venue. The immigration judge (IJ) denied the request for a continuance and entered a removal order in absentia. Mr. Singh did not appeal that order.
Shortly after Mr. Arif informed Mr. Singh of the result of the hearing, Mr. Singh made an additional payment to Mr. Arif with the understanding that he would file a motion to reopen. However, Mr. Arif did not file the motion until March 2015. Further, he filed it as a pro se motion without any supporting evidence.
The IJ denied that motion as untimely. See 8 C.F.R. § 1003.23(b)(4)(ii) (allowing an alien to challenge an in-absentia order within 180 days if “the failure to appear was because of exceptional circumstances”). The IJ also determined that Mr. Singh had provided no evidence to support his assertion that his back injury prevented him from attending the hearing, and therefore he had failed to establish exceptional circumstances. See 8 U.S.C. § 1229a(e)(1) (“The term ‘exceptional circumstances' refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.”). Mr. Singh did not appeal the denial of that motion.
In April 2015 Mr. Singh hired new counsel. She filed a second motion to reopen in June 2015, asserting that Ms. Getachew's ineffective assistance prevented Mr. Singh from presenting his case at the hearing, that his back injury constituted an exceptional circumstance preventing him from attending the hearing, that there are no numerical limits on motions to reopen, that Mr. Singh did not learn about the deficiencies of his first motion to reopen until April 2015, and that equitable tolling was appropriate because Mr. Arif fraudulently held himself out to be an attorney.
The IJ denied the second motion to reopen on the ground that it was number-barred. See 8 C.F.R. § 1003.23(b)(4)(ii) (allowing an alien to file only one motion to reopen).
Mr. Singh appealed to the BIA, arguing that he was entitled to equitable tolling due to Ms. Getachew's ineffective assistance and Mr. Arif's fraudulent conduct. With respect to Ms. Getachew, he argued that he had complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), overruled, Matter of Compean, 24 I. & N. Dec. 710 (Att'y Gen. 2009), vacated, 25 I. & N. Dec. 1 (Att'y Gen. 2009), by providing an affidavit describing his agreement with Ms. Getachew, by informing Ms. Getachew of the allegations against her by letter and allowing her an opportunity to respond (which she did by sending him a refund check), and by filing a complaint with the appropriate disciplinary authority in New York. See Infanzon v. Ashcroft, 386 F.3d 1359, 1363 (10th Cir. 2004) (finding no entitlement to equitable tolling where petitioner failed to satisfy the Lozada requirements). With respect to Mr. Arif, Mr. Singh argued that he was “a victim of deceit and fraud by an individual who is involved in the unethical and illegal practice of law,” R. at 24, and that he had no way to file a complaint against Mr. Arif, as Lozada would typically require, because Mr. Arif was not actually an attorney.
To support his argument for equitable tolling, Mr. Singh asserted that he did not learn about Ms. Getachew's failure to file a motion for change of venue until he retained new counsel in April 2015 and that he did not learn about Mr. Arif's deceit until the IJ denied his first motion to reopen earlier that same month. He argued further that he had exercised due diligence because he hired Ms. Getachew and Mr. Arif to represent him and reasonably relied on their representations throughout the proceedings.
The BIA concluded that the motion was number-barred, and it declined to apply equitable tolling based on ineffective assistance. According to the BIA, Mr. Singh failed to establish that he was prejudiced by the conduct of either Ms. Getachew or Mr. Arif because his back injury—not ineffective assistance—was the reason he gave for not appearing at his hearing. The BIA stated that in ruling on Mr. Singh's first motion to reopen, the IJ had “permissibly concluded that [Mr. Singh's back injury] was not shown to be a sufficient reason for missing the hearing.” R. at 4; see 8 U.S.C. § 1229a(e)(1) (defining exceptional circumstances). As a result, the BIA affirmed the IJ's denial of Mr. Singh's second motion to reopen.
Before this court Mr. Singh argues that the BIA abused its discretion when it denied his second motion to reopen. Specifically, he argues that he was prejudiced by the ineffective assistance he received from both Ms. Getachew and Mr. Arif: first, when no motion for change of venue was filed before his hearing; second, when insufficient evidence was presented at the hearing; and third, when the first motion to reopen was filed late and without supporting evidence. He also appears to argue that the BIA erred by relying on the IJ's determination, when it denied his first motion to reopen, that he failed to establish that his back injury was an exceptional circumstance justifying his failure to appear at the hearing.
We review for abuse of discretion a BIA order denying a motion to reopen. Galvez Piñeda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005). “The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Id. (internal quotation marks omitted). But the BIA does not abuse its discretion when “its rationale is clear, there is no departure from established policies, and its statements are a correct interpretation of the law.” Infanzon, 386 F.3d at 1362. We construe Mr. Singh's pro se pleadings liberally, see Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013), but we will not supply additional factual allegations or construct legal theories on his behalf, see Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009).
Generally, an alien may file only one motion to reopen. See 8 C.F.R. § 1003.23(b)(4)(ii). It is beyond dispute that in the absence of equitable tolling Mr. Singh's second motion to reopen was number-barred. Although Tenth Circuit precedent establishes that the time limitation on motions to reopen may be equitably tolled on the basis of ineffective assistance of counsel, see Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002), whether the number limitation may also be equitably tolled remains an open question. We need not resolve this issue today because we discern no abuse of the BIA's discretion in declining to apply equitable tolling.
When an alien files a motion to reopen, “[t]he BIA must examine [his] situation to determine whether his particular case warrants equitable tolling.” Id. An alien subject to removal “state[s] a Fifth Amendment violation if he proves that retained counsel was ineffective and, as a result, [he] was denied a fundamentally fair proceeding.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002). “Ineffective assistance of counsel in a deportation proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lozada, 19 I. & N. Dec. at 638. “But, in order to prevail on an ineffective assistance of counsel claim, the petitioner must show he was prejudiced by his attorney's performance.” Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1312 (10th Cir. 2015).
Mr. Singh failed to demonstrate that he was prejudiced by the allegedly ineffective assistance he received. Even if Ms. Getachew had filed a motion for change of venue, “the mere submission of a motion for change of venue does not excuse an alien's failure to appear.” Tang v. Ashcroft, 354 F.3d 1192, 1195 (10th Cir. 2003) (internal quotation marks omitted). Mr. Singh did not show what evidence he would have presented in the motion for change of venue or at the hearing, had he been present. Nor has he presented any evidence he would have included with his first motion to reopen that would have created a reasonable likelihood that the outcome would have been different. See United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (adopting the “reasonable likelihood” standard for demonstrating prejudice sufficient to render a deportation proceeding fundamentally unfair). His contention that Mr. Arif should have submitted a doctor's note and other evidence Mr. Singh acquired after the IJ denied his first motion to reopen is without merit. Under these circumstances, the BIA did not abuse its discretion by declining to apply equitable tolling.
To the extent Mr. Singh seeks to challenge the IJ's determination that his back injury did not constitute an exceptional circumstance, he failed to appeal this issue to the BIA after either his hearing or the denial of his first motion to reopen; therefore, he did not exhaust his administrative remedies, and we lack jurisdiction to consider the matter. See Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991) (“Judicial review does not extend to points the alien could have made before the Board but did not.”).
1. Although Mr. Singh contends that he was not able to reasonably present his case because he was not present at the hearing, he does not allege that the representative who appeared on his behalf provided ineffective assistance.


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It’s my pleasure to introduce Debbie Yoerg from Crowns for Christ Ministries! She is a personal trainer, radio host and inspires women to walk in their God-given destiny! You can follow her ministry here on her Crowns for Christ Facebook page!
Now to take a look at Psalms 13-14.
I am sharing my thoughts with you today on Psalm 13 and 14. As I read Psalm 13, I can relate to David.
❤ V. 1-2- I can feel David’s anxiety… His prayer for relief from despair. I’ve been there! The phrase “How long” appears four times in the first two verses indicating to me, the depth of his distress and wondering where God was. David was impatient and he felt forgotten. I have felt this same way… crying out to the Lord and praying for Him to reveal Himself to me in the midst of my circumstances wondering “where are You, God,” and to please “do something.” Lord, calm our anxious hearts in these situations and bring us Your peace that surpasses all understanding!
❤ V. 3-4 – David’s cry out to the Lord was heartfelt. Asking the Lord to answer him, enlighten his eyes to see, and to deliver him from his enemies. My prayers are often to see what I cannot see in the flesh and to have His eyes to see and discern around me!
❤ V. 5-6 David’s cry turns to praising and his faith begins to grow. Verse 5 starts off with BUT implying that he has a choice and chooses to trust in God’s unfailing love for him no matter how long he has to wait for God’s justice. David rejoices in his salvation and worships the Lord in song and praise. When we are impatient, weak, overwhelmed, and anxious, let us be reminded of David’s steadfastness and his faith in God’s love for him. We must trust the Lord even in our waiting and stand on His promises and declare His everlasting love for us!
❤ V. 1- To deny God and refuse to live by God’s Truth is foolish and leads only to death.
❤ V. 3- We ALL fall short and must look to Jesus as our Savior, repenting our sins and receiving His forgiveness.
❤ V. 5-7- God is present in the company of the righteous- our enemies who attack us are actually rejecting Jesus. This reminds me that it is the Holy Spirit within me that my enemies are coming against. In these times that we may feel defeated let us choose to stand on God’s Word and promise that He is our refuge and our victory in overcoming comes ONLY from Him! We Praise You, God!!!
Lord, thank you for salvation, thank you for your unfailing love, grace, mercy, and forgiveness. Calm our anxious hearts, Lord when we are overwhelmed by situations that surround us. Help us to trust that You hear our cries and rejoice in Your presence, stand on Your Word, and declare Your love and promises over our lives. Thank you that we are not in the dark… that You have saved us! We pray for those who are lost and deny Who You are. We call these people out to You by name and those unknown and pray for their souls. We lift up our enemies to You, repent our hearts of any unforgivness, bitterness, or resentment and release them to You to work upon their hearts. Thank you, Lord, for You are GOD and You reign. We praise You, Jesus, we magnify You, and we lift Your Name up high… JESUS! In Your precious Name I pray…Amen!!
Thank you so much for your insight on these chapters, Debbie! David is so easy to relate to. How many times have we found ourselves crying out to God, “Where are you, God? How much longer will I have to face this?” He has not forgotten us or turned a blind eye to our struggles.
As Debbie stated, it is usually the Holy Spirit within us that people are coming up against. John 3:19 says, “And this is the judgment: the light has come into the world, and people loved the darkness rather than the light because their works were evil.” The light always displaces darkness. It also illuminates things that were once hidden.
People generally aren’t fond of shining light on their imperfections. I know I’m not! But, it shows me what I need to work on. Many times people are offended by the gospel because in order to receive Jesus, they have to accept the realization their current condition. Not everyone sees their desperate need for a Savior and are defensive towards the message of Jesus Christ. It has nothing to do with you and everything to do with the natural rebellion we are born into. We are born into a sinful world, yet our redemption comes only through us personally accepting Jesus as our personal Savior.
Find some hope today? Can you relate to David? Share your thoughts below and be sure to visit my Facebook page here to connect with others joining our bible study!
Posted on January 7, 2015, in Bible Studies and tagged bible, bible study, connect, discuss, Psalms, talk it out. Bookmark the permalink.	Leave a comment.

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Is Copyright Law Even Blurrier After the "Blurred Lines" Ruling?
Do Different Size Packages Violate the Robinson Patman Act?
2014 was a record-breaking year for automobile recalls. Manufacturers recalled nearly 65 million vehicles in 2014, more than twice the previous record. In the wake of these record numbers, and the high profile nature of some of the recalls, Congress appears eager to enhance the automobile defect reporting system and increase the recall completion rate. By the second day of March, lawmakers had introduced two bills that seek to strengthen the authority and funding of the National Highway Traffic Safety Administration (NHTSA), increase transparency to the public of both NHTSA data and auto makers' communications regarding vehicle issues, and compel consumers to participate in recalls. Whether these proposed pieces of legislation pass, and whether they mark the beginning of a trend of stricter regulation, remain to be seen.
In the Senate, Senators Markey (D-Ma.) and Blumenthal (D-Mi.) introduced the Repairing Every Car to Avoid Lost Lives Act (RECALL). This bill, aimed at automobile owners, seeks 100 percent recall compliance by prohibiting states from issuing or renewing a vehicle registration for any vehicle that is subject to an outstanding recall. MDM 15344, 114th Cong. § 2(b) (2015). The proposed legislation is similar to existing law in Germany, where the Federal Motor Transport Authority has the authority to revoke the registration of any vehicle with an outstanding safety recall.
Expand reporting requirements and recall obligations: The VSIA would broaden the scope of reporting for fatalities and serious injuries, by requiring manufacturers to report all incidents where the manufacturer receives “actual notice which involves fatalities or serious injuries which are alleged or proven to have been caused by a possible defect in such manufacturer's motor vehicle or motor vehicle equipment." HR 1181, 114th Cong. § 202(b)(C) (2015). Furthermore, this provision compels manufacturers to report whether the incident occurs in the U.S. or a foreign country and would not limit the reports by model year–invalidating 49 C.F.R. § 579.21. In addition, the law would require nationwide recalls, even for environmentally-related defects, such as defects that may arise only in cold-weather states. § 207.
Increase NHTSA analysis of recall completion rates: The VSIA would require the Secretary of Transportation to assess auto recall rates twice a year, based on manufacturers' quarterly recall reporting and submit a report of the analysis to the House Committee on Energy and Commerce and the Senate Committee on Commerce, Science, and Transportation § 208 (d).
Lengthen records retention obligations: The VSIA would require manufacturers to retain records related to safety recalls for twenty years. § 204(a).
Increase transparency: The VSIA aims to create a more transparent and user-friendly method of relaying complaint and recall information to the public. First, the law seeks to expand the types of communications automakers must disclose to NHTSA. In addition to the disclosures required under 49 CFR § 573.6, manufacturers will have to disclose communications relating to “a customer satisfaction campaign, safety improvement campaign, consumer advisory, recall, or other safety activity involving the repair or replacement of motor vehicle equipment." § 101(a)(2)(B). Second, NHTSA must create a more searchable and streamlined database system, including by providing users with the ability to search across NHTSA databases and to craft uniform categories in both the consumer complaint and recall databases. § 202 (c)(1)(A)-(C), id. § 102 (1)-(4). In its current form, VSIA also would require the Secretary of Transportation to evaluate the extent to which differing reporting practices hinder NHTSA's ability to compare differences among manufacturers' data and create a rule standardizing reporting practices accordingly. § 202(d).
Toughen penalties: The VSIA would impose tougher penalties on persons who violate vehicle safety laws. It increases the civil penalty for safety violations from $5,000 to $25,000 per occurrence and removes a statutory maximum for multiple offenses. § 201(a).
Increase NHTSA's budget: To pay for these new requirements, Representative Schakowsky proposes increasing NHTSA's annual budget from $98,313,500 to $200 million by 2016. §402(a). Under the VSIA, manufacturers would pay a $3.00, $6.00, or $9.00 fee per vehicle sold to help finance this increase. §401(e).
On the heels of a record-breaking year for automobile recalls, there is no doubt that Congress is ready and willing to legislate in the arena of vehicle safety. And while the proposed change most likely to be controversial is directed at vehicle owners, auto manufacturers should closely follow the progress of these bills, and anything still to come from the 114th Congress. Regardless of what becomes of the legislation proposed so far, one thing that is sure is that recall and reporting obligations will be changing.
1 The bill was introduced by Representatives Schakowsky (D-Ill) and Waxman (D-CA) in September 2014. It was referred to the House Subcommittee on Commerce, Manufacturing, and Trade and never left that committee.


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The Complainant is Hoerbiger Holding AG, of Zug, Switzerland, represented by Wenger & Vieli, of Zurich, Switzerland.
The Respondent is Texas International Property Associates represented by Gary Wayne Tucker, both of Dallas, Texas, United States of America.
The disputed domain name <horbiger.com> is registered with Compana LLC d/b/a Budgetnames.com.
(e) the registration of the disputed domain name is subject to the Uniform Domain Name Dispute Resolution Policy (the “Policy”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 23, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 12, 2007.
The Center received the Respondent’s Response by email on September 13, 2007.
The Center appointed Warwick A. Rothnie as the sole panelist in this matter on October 3, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
According to the Complaint, the Complainant conducts business throughout the world in the fields of compression technology, automation technology, drive technology, valves technology and actuator technology. Its subsidiaries have offices in, amongst other places, Houston and Longview in Texas, the United States of America.
Exhibit 6 to the Complaint lists more than 100 subsisting trademark registrations for HOERBIGER around the world. Printouts of two of these, Ireland trademark No. 740260 and United States Trademark No. 2629876, are included in respectively exhibits 7 and 8. These two particular registrations cover a wide goods and services in classes 7, 9, 12, 17, 37 and 42. Ireland trademark No. 740260 claims a Swiss registration, No. 47519 dated October 19, 1999.
The Complainant has a number of registered domain names including <hoerbiger.com>, <hoerbiger.biz>, <hoerbiger.info> and <hoerbiger.net>.
Exhibit 12 to the Complaint contains printouts from the Dallas County Clerk and the Texas Secretary of State which show that Texas International Property Associates is a certified assumed name for Dauben Inc. and a Mr. Joseph Dauben was the incorporator and is the director of Dauben Inc.
The WhoIs records show that the domain name was registered on December 27, 2005.
Down the left hand side of the page are a series of buttons or links such as “Compressor”, “Automation”, “Valve”, “Actuator” … under the heading “Related Searches”.
Find Air Compressors Powered By honda. High Standards In Small Tech.
Great Bargains on Computer Parts. Range of Brands & Wide Choice.
Find amazing bargains for Tools and Power Tools. Browse 100’s of Ads.
Check Out Our Products Online. Delivery For Sales Australia Wide.
Shop For Home Tools At Ninemsn Shopping.
The Response states that the links generated under Sponsored Results are provided pursuant to Google’s terms.
The Panel finds that the Complainant has established it owns registered trademarks for HOERBIGER. For present purposes, it is sufficient to mention only the two for which specific details were included in the Complaint, Ireland trademark No. 740260 and United States Trademark No. 2629876, although the Panel notes that the Complainant has provided summary details of more than 100 other registrations around the world.
The disputed domain name differs from the proved, registered trademarks in two respects. It does not include the letter “e” after the “o” and before the “r”. Also, it includes the gTLD “.com”.
The addition of the “.com” gTLD can be disregarded for present purposes. See for example Telstra Corporation Limited v. Ozurls, WIPO Case No. D2001-0046; Ticketmaster Corporation v. DiscoverNet Inc., WIPO Case No. D2001-0252; Microsoft Corporation v. J. Holiday Co., WIPO Case No. D2000-1493.
The Complainant contends that the domain name is phonetically the same as the Complainant’s own name as “oe” is often represented by “�” which, in turn, is often translated into English simply as “o”. The Complainant also invokes the “typosquatting” line of cases for the proposition that the omission of a single letter is not sufficient to avoid a finding of confusing similarity.
In response, the Respondent contends that the omission of the “e” is highly significant. It points out that if a Google search is conducted for “chevrlet”, the page generated in response asks “Did you mean Chevrolet”; other examples for searches on “Generl Motors” and “Gary Tuker” generate similar outcomes. However, a Google search on “horbiger” does not generate a question “Did you mean Hoerbiger”.
The Respondent also relies on case law for the proposition that, in the Internet context, consumers are aware that there can be very small differences between the domain names of different websites because of the need for language economy. In application of this proposition, the Respondent points out that <broadcommunications.com> was found not to be confusingly similar to the trademark BROADCOM as “Complainant is not entitled to protection for every usage of the word ‘broad’ in combination with other terms”, citing Broadcom Corp v Smoking Domains, FA137037 (NAF February 11, 2003).
The Panel can accept that Internet users will often appreciate the need to type URLs accurately, nonetheless that does not mean that mistakes will be not made. At this stage of the inquiry, however, the question is whether or not the domain name is confusingly similar to the registered trademark HOERBIGER. This is ultimately a matter of impression requiring an assessment of the likelihood that people having an awareness of the trademark, but not necessarily an exact or precise recollection, might mistakenly think the distinctive component of the domain name was the trademark.
Given that “oe” is often pronounced and written as “�” or “o”, the Panel has little doubt that there is a significant risk of such confusion.
Accordingly, the Panel finds that the domain name is confusingly similar to the trademark rights proved by the Complainant.
It is now very well established that, in view of the difficulty in disproving a negative, the Complainant must adduce sufficient material to raise a prima facie case under this factor and then an evidential burden shifts to the Respondent to rebut that prima facie case. An early example in which this proposition was established is Sony Kabushiki Kaisha v. sony.net, WIPO Case No. D2000-1074.
The Complainant states that it has not authorized the Respondent to use the domain name. The domain name is not derived from the Respondent’s own name or that of either Dauben Inc. or Mr. Dauben.
As noted above, the Respondent quite frankly admits it uses the domain name to generate advertising revenues.
The Respondent says that the links on its site are provided pursuant to Google’s terms and triggered by the search terms entered by computer users. It points out that Panels have accepted that a respondent is not responsible for potentially offending content triggered by Google’s Adsense service and over which the respondent has no control: See e.g., Admiral Insurance Services Limited v. Mr. Adam Dicker, WIPO Case No. D2005-0241. The Respondent expressly denies any intention to target the Complainant.
- Miller Brewing Company v. Yunju Hong, FA0309000192732 (NAF December 8, 2003) registration of generic term “High Life” to be used in a search engine portal is a legitimate use and “. . . there is nothing wrong with using the generic phrase to connect these concepts with keywords in order to provide advertisers with targeted customer traffic”.
Each of these decisions is, of course, a decision on its particular facts. One can readily see that there may be many situations where the use of a generic or descriptive term as the domain name associated with a search portal will be a bona fide use. On the other hand, many Panels have recognized that it is not a legitimate or bona fide use to use someone’s trademark to generate advertising revenues through links to the trademark owner’s competitors. See e.g. some of the cases referred to on this question in this Panel’s own decision in Therapro, Inc. v. Whois Protection WIPO Case No. D2007-1222.
Here, the Panel has no reason to doubt that the term “horbiger” is a surname. Contrary to the Respondent’s contention, however, it is not being used just for a generic search portal. As noted above, it is being used for a website according to its own banner “For resources and information on Compressor and Automation”.
Further, it may be accepted that the links generated under the headings “Sponsored Results” are generated by Google or someone other than the Respondent. However, it is not correct to claim that the Sponsored Results are only triggered by computer users looking for descriptive and generic terms. The particular terms that trigger the Sponsored Results are already listed on the website at the URL to which the domain name resolves.
Thirdly, the domain name has been registered well after the Complainant has registered its trademarks around the world, and apparently well after the Complainant has actually been operating its business under its trademarks in the United States of America.
The domain name has been avowedly registered by the Respondent to generate advertising revenues. It is apparently a surname. However, it has been associated with a specific range of products: compressors and automation. The Respondent does not suggest that there is any connection between the surname “horbiger” and the particular goods and services available at its website. Why would anyone type in the surname “horbiger” as a domain name in the expectation of being taken to a website about Compressors and Automation?
Those products appear to be related to the surname “horbiger”, if at all, by reason of the Complainant’s use of its trademarks.
In these circumstances, the cases on the use of generic or descriptive terms are distinguishable. Consistently with the cases holding that it is not a legitimate use of a domain name to use it to divert traffic to a trademark owner’s competitors, the Panel finds that the Complainant has sufficiently established for the purposes of this proceeding that the Respondent does not have any rights or legitimate interests in the domain name.
As already noted, the Respondent frankly admits it registered the domain name for the purpose of generating advertising revenues. It contends that that is a perfectly legitimate activity for a descriptive or generic term.
For the reasons already given, however, that is not an accurate description of the Respondent’s activities. It has registered a domain name which differs from the Complainant’s trademark only by the omission of the letter “e”, in circumstances where the Complainant’s trademark and the Respondent’s domain name could well be confused, and it has done so for use in connection with the very goods and services that the Complainant’s trademark is associated.
These circumstances are more than sufficient to conclude that the Respondent registered and used the domain name in bad faith.
In the circumstances, therefore, it is not necessary to resolve the Respondent’s objections to the Complainant’s characterization of the Respondent as a serial typosquatter. The Panel does note for the record, however, that in one case where the Respondent agreed to transfer the domain name without admissions, the domain name was <fyrselectronics.com>, Fry’s Electronics Inc. v. Texas International Property Associates, WIPO Case No. D2007-0343 and two decisions concerned <associtedbank.com> (Associated Bank Corp. v. Texas International Property Associates, WIPO Case No. D2007-0334) and <benovolink.com> (The Benevolink Corporation v. Texas International Property Associates, WIPO Case No. D2007-0404).
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <horbiger.com> be transferred to the Complainant.

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Administrative Law has undergone a rapid expansion in the past six decades since its inception in Independent India. After India became free of British control, India has been witness to a huge leap in the number of administrative activities and functions in order for its smooth functioning. The Legislature and the Executive have been the pillars set up by the mandate of the Constitution and in the best interests of the nation both must work in tandem.
This is best seen from the fact that the Parliament cannot legislate on all aspects of a certain matter and simply vest authority in the executive to implement the same. In certain instances, it is necessary to leave certain gaps in laws and allow the same to be filled as per the discretion of the executive authorities on a case to case basis.
I shall look into the various grounds on the basis of which abuse of administrative discretion has been held by the courts. This project shall also delineate the origins of the jurisprudence of abuse of administrative discretion in India gleaned from English case laws. I will look into a multitude of Supreme Court case laws which have expounded the various actions that amount to ‘abuse’ such as mala fides, improper purpose, taking irrelevant considerations, colourable exercise of power and unreasonableness among others. Finally, I will look into the tools devised by the courts to check the discretion vested in administrative authorities.
Another instance where the court insisted on fetters being placed on the exercise of discretion was in the matter of R v. Oxford ex p. Levey.  In the instant case, a complaint was made against the police that it had formed a policy of not prosecuting illegal gaming clubs in London. The justification provided was that there was tremendous cost involved in doing so and the law pertaining to it was vague as well. Despite instructions being issued in the interim which cleared up the issue, the court clarified its position stating that even though the Commissioner had discretion to pursue prosecution; this was checked by the fetter that he had to mandatorily comply with public policy by enforcing the law.
The last element of unreasonableness is known famously as the rule of Wednesbury unreasonableness which covers within its ambit a host of actions that abuse administrative discretion. The court created a wide umbrella of ‘unreasonableness’ within which fell numerous elements such as acting against the spirit of the act, relying on irrelevant consideration, caprice in decision-making, mistakes and misunderstanding. The court came to a consensus that the standard of reasonableness is quite high and would be infringed only by an action that no man would dream of carrying out.  This seemingly high standard however, was not applied by the courts as they lowered this standard while actually applying the principle to tailor it to its idea of what constituted an abuse of administrative discretion.
The courts in India have adopted the test of Wednesbury reasonableness in order to review the discretionary actions of administrative authorities. The matter of U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd.  stated that the courts cannot interfere in an area where the administrative authority has discretion to decide upon a matter. In this case, the Appellant loaned a certain amount to the Respondents who failed to pay it back and were ceased operations within three months. The Appellant sought to recover the money by taking over the management of the Respondent which was challenged as unreasonable by the Respondent and this was allowed by the High Court via a writ petition. In appeal, the Supreme Court held that this would amount to replacing the decision of the authority with its own. However, the Supreme Court held that it can only interfere if the decision is so unreasonable that no reasonable person could be expected of taking the same course of action.  In the instant case, acting under the statute to recover the debt was held to be a reasonable action on the part of the Appellant.
Thus, the Indian jurisprudence has gleaned wisdom from English courts and not placed Administrative Discretion on too high a pedestal. It has ensured that administrative authorities comply with fairness and equity even when exercising discretion and choosing between alternative approaches.
Indian Law has delineated a myriad of ways in administrative discretion can be accosted. One such way is regarding a discretionary act as mala fide.
Instances of mala fide action being struck down are numerous. In the case of Pritpal Singh v. State of Haryana,  the appointment of 62 sub-inspectors was struck down owing to numerous discrepancies in the selection process. Discrepancies such as examination sheets being destroyed, prior to a policy for the same being passed as well as non-presentation of the selection panel’s scores confirmed the court’s view.
G. Sadanandan v. State of Kerela  is the best instance of administrative action being checked on the grounds of it being mala fide in nature. The DSP (Civil Supplies Cell) passed a detention order against a kerosene dealer on the grounds of operating without a license and dealing in Kerosene illegally. It was alleged that the DSP was acting malafidely to drive the appellant out of this trade as the DSP’s brother was a competitor in the same business. The DSP did not even file a counter-affidavit in court to counter the charges of mala fide action against the Appellant. Due to these considerations, the court quashed the action.
This was also seen in R.L. Arora v. State of Uttar Pradesh.  In this case, the Land Acquisition Act, 1894 allowed to the State Government to give consent to acquisition of property for industrial purpose if it proved useful to the public. The government here assented to acquisition of property by textile factory. This was challenged on the grounds that the government could not interpret the words of the statute and exercise discretion on the same as well. The court held that the purpose of the statute was to allow acquisition when construction of work after acquisition would lead to benefit of people. In this case, the benefit would arise only after the industry is functioning and not during construction. Hence, the order of the government was struck down on the grounds that it violated the mandate of the legislation.
This was laid down authoritatively in Barium Chemicals Ltd. v. Company Law Board.  Under S.236 of the Companies Act, the CLB can order investigations into the affairs of the company if the company is being conducted with the intention to defraud creditors or the persons involved in management are guilty of fraud among other things or full information regarding the firm has not been given. Investigation was ordered in the instant case on the ground that there were continuous running losses owing to faulty planning and various directors had left the board. This order was challenged and the court quashed the order stating that these grounds were irrelevant and extraneous to the purpose enshrined in the statute. They did not conform to the mandate of S.236.
The same position was reiterated in Rohtas Industries v. S.D. Agarwal  wherein investigation into the affairs of a firm was ordered on the grounds of one of its directors being involved in several claims of misconduct as a member of other companies and also shares of another company were being sold at an inadequate rate. These grounds were held to be flimsy in order to seek investigation under S.237 of the Companies Act, 1956.
All discretionary action that is taken must be based on sound material and facts. There should be application of mind even when discretion is vested in the authorities. This was held in the Rohtas matter  and the Venkatraman case  where the orders of the authorities were vitiated owing to be based on lack of material.
This is so as arriving at a decision on negligible grounds is an abuse of the discretion vested. It stinks of arbitrariness and misuse of the authority given to an administrative body. This was seen in the case of Raala Corp. v. Director of Enforcement  which dealt with the discretion vested in the Directorate of Enforcement to refer cases to Supreme Court where he felt the punishment to be imposed was beyond his powers. This discretion was to be exercised on the basis of sufficient material. However, in this case, the reference was made even without holding any hearing and without reading any information. Hence, the Supreme Court quashed the order.
Sometimes an authority may act beyond the scope of the powers given by the law. It may make such mistakes owing to a misinterpretation of the law or a fact and thus, go beyond the scope of the power vested in them. If such a mistake concerning the fetters placed by law is made, it would vitiate the exercise of discretion.
The matter of M.A. Rasheed v. State of Kerela  has laid this down most lucidly. The state government came out with a notification in which consumption of coir by industries was curtailed in favour of traditional sector. This use of discretion was challenged on the grounds of reasonableness. The court established that as discretion gave room for subjective satisfaction, the court could not blindly follow the authority’s reliance on facts and law to arrive at a decision. Review was possible on the grounds of whether the authority had construed these elements correctly.
This tool was applied in the case of Ranjit Thakur v. Union of India  where an army official was court-martialled in response to a minor indiscretion committed by him. He challenged the order in the Supreme Court who quashed it stating that the rule of proportionality demanded that the punishment given has a nexus with the act committed and is proportional to the same. The court justified its interference on the ground that the decision in question was grossly disproportionate.
As we proceed further into the 21st century, the gamuts of activities that are being left to administrative control are ever increasing. More and more discretion is being given to administrative authorities to arrive at decisions without interference from other bodies. It has the freedom to decide between alternate approaches as per its best judgment.
Despite this seemingly wide freedom, courts in India have taken a leaf from English courts in that they have curtailed this discretionary power by ensuring that it is within the limits prescribed by statute, is fair, just and based on relevant grounds and good faith. The courts, in a gamut of aforementioned cases have made it clear that even when discretion is granted, its abuse by authorities is not without redressal.
Finally, the court has developed various controls over discretionary action. Firstly, it ensures that the action taken by the authority is not irrational and patently unreasonable such that no reasonable person could be expected to arrive at the same decision. It ensures that the authority acts within the limits of the statute and works in order to give the most effective and just decision based on sound and irrefutable grounds. Secondly, the courts have employed the English rule of Proportionality to ensure that the response of the authority to actions by individuals is proportional and not grossly unjust.
The freedom given to administrative authorities to decide matters, using their best judgment countered with the overarching judicial control is a sign of the balance maintained in Indian jurisprudence. This balance makes all the difference: on the one side lies unfettered power and on the other, judicial supremacy. Middle ground is perhaps the best place to be.
"The Abuse Of Administrative Discretion." LawTeacher.net. 11 2013. All Answers Ltd. 04 2019 <https://www.lawteacher.net/free-law-essays/administrative-law/the-abuse-of-administrative-discretion-administrative-law-essay.php?vref=1>.
"The Abuse Of Administrative Discretion." LawTeacher. LawTeacher.net, November 2013. Web. 18 April 2019. <https://www.lawteacher.net/free-law-essays/administrative-law/the-abuse-of-administrative-discretion-administrative-law-essay.php?vref=1>.
LawTeacher. November 2013. The Abuse Of Administrative Discretion. [online]. Available from: https://www.lawteacher.net/free-law-essays/administrative-law/the-abuse-of-administrative-discretion-administrative-law-essay.php?vref=1 [Accessed 18 April 2019].
LawTeacher. The Abuse Of Administrative Discretion [Internet]. November 2013. [Accessed 18 April 2019]; Available from: https://www.lawteacher.net/free-law-essays/administrative-law/the-abuse-of-administrative-discretion-administrative-law-essay.php?vref=1.


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Truth in Lending Act was passed to prevent unsophisticated consumer from being misled as to total cost of financing. Truth in Lending Act, Section 102, 15 U.S.C. Section 1601. Griggs v. Provident Consumer Discount. 680 F.2d 927, certiorari granted, vacated 103 S.Ct. 400, 459 U.S. 56, 74 L.Ed.2d 225, on remand 699 F.2d 642.
Truth in Lending Act is strictly a liability statute liberally construed in favor of consumers. Truth in Lending Act Section 102 et seq., 15 U.S.C. Section 1601 et seq. Brophv v. Chase Manhattan Mortgage Co, 947 F.Supp. 879.
Truth in Lending Act should be construed liberally to ensure achievement of goal of aiding unsophisticated consumers so that consumers are not easily misled as to total costs of financing. Truth in Lending Act, Sections 102 et seq, 102(a), 105 as amended, I5 U.S.C. Sections 1601 et seq., 1601(a), 1604; Truth in Lending Regulations, Regulation Z, Sections 226.1 et seq., 226.18, 15 U.S.C. Section 1700, Basile v. H&R Block. Jlt(L. 897 F.Supp. 194.
Truth in Lending Act must be strictly construed and liability imposed for any violation, no matter how technical. Truth in Lending Act Section 102 et seq., as amended, 15 U.S.C. Section 1601 et seq, Abele v. Mid-Penn Consumer Discount. 77 B.R. 460, affirmed S45 F.2d 1009.
Requirements of Truth in Lending Act are highly technical, but full compliance is required; even minor violations of Act cannot be ignored, Truth in Lending Act, Section 102 et seq. as amended, 15 U.S.C. Section 1601 et seq.; Truth in Lending Act Regulations, Regulation Z Section 226.1 et seq., 15 U.S.C. foil. Section 1700. Griggs v. Providence Consumer Discount Co. 503 F.Supp. 246, appeal dismissed 672 F2d 903, appeal after remand 680 F.2d 927, certiorari granted, vacated 103 S.Ct, 400, 459 U.S. 56, 74 L.Ed.2d 225, on remand 699 F,2d 642.
A valid rescission of a “credit sale” contract does not render inoperative the disclosure requirements of the Truth in Lending Act, as creditor’s obligations to make specific disclosures arises prior to consummation of transaction. Truth in Lending Act Section 102 et seq., 15 U.S.C. Section 1601 et seq.; Truth in Lending Regulations, Regulation Z, Sections 226.2(c) 226.8(a), 15 U.S.C., following section 1700. O’Neil c^ 484 F.Supp. 18.
Under truth in lending regulation providing that disclosure of consumer credit loan shall not be “stated, utilized or placed so as to mislead or confuse” consumer, placement of disclosures is to be considered along with their statement and use. Truth in Lending Regulations, Regulation Z, Section 226.6(c), 15 U.S.C. following section 1700 .Geimuso v. Commercial Bank & Trust Co. 566 F.2d 437.
Any violation of the Truth in Lending Act, regardless of technical nature, must result in finding of liability against lender. Truth in Lending Regulations, Regulation Z Section 226.1 et seq., 15 U.S.C. Section 1700; Truth in Lending Act Section 130 (a, e), IS U.S.C. Section 1640 (a, e). In Re Steinbrecher. 110 BR. 155, 116 A.L.R. Fed. 881.
Question of whether lender’s Truth in Lending Act disclosures are inaccurate, misleading or confusing ordinarily will be for fact finder; however, where confusing, misleading and inaccurate character of disputed disclosure is so clear that it cannot reasonably be disputed, summary judgment for plaintiff is appropriate. Truth in Lending Act Section 102 et seq; Truth in Lending Regulations, Regulation Z, Section 226.1 et seq., 15 U.S.C. Section 1700. Griggs v. Provident Consumer Discount Co. 503 F, Supp 246, appeal dismissed 672 F.2d 903, appeal after remand 680 F.2d 927, certiorari granted, vacated 103 S.Ct, 400, 459 U.S. 56, 74 L.Ed.2d 225, on remand 699 E2d 642.
Once a creditor violates the Truth in Lending Act, no matter how technical violation appears, unless one of statutory defenses applies, Court has no discretion in imposing liability. Truth in Lending Act, Sections 102-186 as amended, 15 U.S.C. Section 1601-1667e. Solis v. Fidelity Consumer Discount Co. 58 BR, 983.
Under the facts at hand the Plaintiff Bank has patently violated the Truth in Lending Act, At all relevant times the Bank misled and attempted to confuse Defendant. The Bank did not provide appropriate disclosure as required by the Truth in Lending Act in a substantive and technical manner.
“It is not necessary for recession of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis 2d 166.
“Any false representation of material facts made with knowledge of falsity and with intent that it shall be acted on by another in entering into contract, and which is so acted upon, constitutes ‘fraud,’ and entitles party deceived to avoid contract or recover damages.” Barnsdall Refining Corn. v. Birnam wood Oil Co., 92 F 2d 817.
“In the federal courts, it is well established that a national bank has not power to lend its credit to another by becoming surety, indorser, or guarantor for him.” Farmers and Miners Bank v. Bluefield Nat ‘l Bank, 11 F 2d 83, 271 U.S. 669.
“A national bank has no power to lend its credit to any person or corporation.” Bowen v. Needles Nat. Bank, 94 F 925, 36 CCA 553, certiorari denied in 20 S.Ct 1024, 176 US 682, 44 LED 637.
“Mr. Justice Marshall said: The doctrine of ultra vires is a most powerful weapon to keep private corporations within their legitimate spheres and to punish them for violations of their corporate charters, and it probably is not invoked too often. Zinc Carbonate Co. v. First National Bank, 103 Wis 125, 79 NW 229.” American Express Co. v. Citizens State Bank, 194 NW 430.
“It has been settled beyond controversy that a national bank, under federal law being limited in its powers and capacity, cannot lend its credit by guaranteeing the debts of another. All such contracts entered into by its officers are ultra vires” Howard & Foster Co. v. Citizens Nat’l Bank of Union, 133 SC 202, 130 SE 759(1926).
“It is not within those statutory powers for a national bank, even though solvent, to lend its credit to another in any of the various ways in which that might be done.” Federal Intermediate Credit Bank v. L ‘Herrison, 33 F 2d 841, 842 (1929).
“A bank can lend its money, but not its credit.” First Nat ‘I Bank of Tallapoosa v. Monroe, 135 Ga 614, 69 SE 1124, 32 LRA (NS) 550.
“. . . the bank is allowed to lend money upon personal security; but it must be money that it loans, not its credit.” Seligman v. Charlottesville Nat. Bank, 3 Hughes 647, Fed Case No.12, 642, 1039.
“The contract is void if it is only in part connected with the illegal transaction and the promise single or entire.” Guardian Agency v. Guardian Mutual. Savings Bank, 227 Wis 550, 279 NW 83.

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And the Supreme Court said, . . .
Since the Brown vs the Board of Ed Supreme Court decision establishing "separate but equal" unconstitutional, many Afrikan Americans believed that the court was a friend of Black folks. However, a quick review of the cases below will show the court has been both friend and foe, but mostly foe. Yesterday's decision in Shelby County v. Holder, it acted as foe.
What happened yesterday? The Supreme Court struck down a major provision of the Voting Rights Act of 1965, essentially gutting the Act of its power. The Voting Rights Act of 1965 is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S. Although the 15th Amendment, ratified on February 3, 1870, provided that, "The right of U.S. citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Also the Amendment gave Congress the authority to enforce those rights and regulate the voting process. However, soon after the end of Reconstruction, starting in the 1870s, Southern Democratic legislators found other means to deny the vote to blacks, through violence, intimidation, and Jim Crow laws. And from 1890 to 1908, 10 Southern states wrote new constitutions with provisions that included literacy tests, poll taxes, and grandfather clauses that collectively disenfranchised blacks. These state provisions were upheld by the Supreme Court. During the early 20th century, as Afrikan Americans and poor whites began to legally challenges these state laws, southern states devised new legislation to continue Black disfranchisement. And although there were numerous court cases brought before the Supreme Court, through the 1960s, Southern states effectively disfranchised most blacks. Hence, the need for the Voting Rights Act of 1965.
The VRA had 5 provisions or sections, the mostly important seemingly being Section 5, which required the United States Department of Justice, through an administrative procedure, or a three-judge panel of the United States District Court for the District of Columbia, through a declaratory judgment action "preclear" any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting..." in any "covered jurisdiction. In Shelby County v. Holder, Chief Justice John Roberts, in a 5-4 decision, took no action on the strict “preclearance” restrictions in Section 5 of the Voting Rights Act itself. (Justice Clarence Thomas joined Roberts’ opinion but also wrote separately “to explain that I would find Section 5 of the Voting Rights Act unconstitutional as well.”) Under Section 5, state and local political subdivisions need federal government approval to make any change to their voting policies and systems. The court did, however, strike down Section 4’s coverage formula, which determines what jurisdictions have to follow Section 5’s restrictions. In other words, which states are not pointed out as needing preclearance or the way they were selected, is now unconstitutional. The problem is that Section 5 cannot be effectuated without Section 4. So really the court has eviscerated Section 5 by attacking Section 4.
The court has put the ball in Congresses' hand, saying they must devised a new formula for deciding the states that will need preclearance in other to changes state voting laws. Therefore, unless Congress can “draft another formula” — and pass it — there is no coverage formula in place to which Section 5’s restrictions apply. Again, the court it did not rule on the constitutional validity of the idea that some places have such strong records of discrimination that they must seek federal approval before they may change their voting rules, it just stated the present coverage formula for selecting such states is antiquated. Presently the formula includes (counties) in the following states: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia (all Tea Party strongholds.) The Conservative is doing nothing more than boistering conservatism because in reality, the justices are aware that in the present politically partisan and contentious environment, Congress will be unable to agree on a new coverage clearance (they weren't able to do so in 2006, and that was pre-Obama). And so the preclearance rule will lie dormant, and state provisions will return. And at the top of the list of provisions is voter-identification laws.
Dred Scott v. Sandford (1857) Decreed a slave was his master's property and African Americans were not citizens; struck down the Missouri Compromise as unconstitutional.
Civil Rights Cases (1883) A number of cases are addressed under this Supreme court decision. Decided that the Civil Rights Act of 1875 (the last federal civil rights legislation until the Civil Rights Act of 1957) was unconstitutional. Allowed private sector segregation.
Plessy v. Ferguson (1896) The Court stated that segregation was legal and constitutional as long as "facilities were equal"—the famous "separate but equal" segregation policy.
Powell v. Alabama (1932) The Supreme Court overturned the "Scottsboro Boys'” convictions and guaranteed counsel in state and federal courts.
Shelley v. Kraemer (1948) The justices ruled that a court may not constitutionally enforce a "restrictive covenant" which prevents people of certain race from owning or occupying property.
Brown v. Board of Education of Topeka (1954) Reversed Plessy v. Ferguson "separate but equal" ruling. "[S]egregation [in public education] is a denial of the equal protection of the laws."
Heart of Atlanta Motel, Inc. v. United States (1964) This case challenged the constitutionality of the Civil Rights Act of 1964. The court ruled that the motel had no right "to select its guests as it sees fit, free from governmental regulation."
Loving v. Virginia (1967) This decision ruled that the prohibition on interracial marriage was unconstitutional. Sixteen states that still banned interracial marriage at the time were forced to revise their laws.
Regents of the University of California v. Bakke (1978) The decision stated that affirmative action was unfair if it lead to reverse discrimination.
Grutter v. Bollinger (2003) The decision upheld affirmative action's constitutionality in education, as long it employed a "highly individualized, holistic review of each applicant's file" and did not consider race as a factor in a "mechanical way."
Those Supreme court decisions that were seen to be favorable to Africans essentially gave blacks what was rightfully theirs and had been long in coming. The white set up has for a long time denied blacks their rights, and they hold on to that until it is no longer tenable. Then the supreme court rules in favor of blacks and it is seen as a victory. However, the supreme court will never rule in a way that denies whites their fundamental rights, never. Whites may be denied privileges, like keeping slaves, when the time has come, but are sure about their basic rights. The same cant be said for blacks or other ethnic minorities.

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