The Texas Water Development Board has opened the application period for the next round of SWIFT financing. The application period started yesterday, December 1, 2015, and will remain open through February 5, 2016. The application webpage can be found here.
The Second Source Project of the City of Houston, Central Harris County Regional Water Authority, North Harris County Regional Water Authority, West Harris County Regional Water Authority and North Fort Bend Regional Water Authority, which collectively received $150 million in 2015 funds and $2.5 billion in future funding commitments.
The Arizona Supreme Court has issued an important decision regarding water transfers and who may participate as an “interested party” in administrative proceedings before the Arizona Department of Water Resources (ADWR). The decision was issued on November 12, 2015 in the case of Arizona Department of Water Resources v. McClennen, No. CV-15-0223-SA, which is a dispute between Freeport Minerals Corporation and officials within Mohave County over water on Planet Ranch. That ranch has been the subject of multiple water transfer proposals since the 1980s, and for a time was owned by the City of Scottsdale for that purpose, before it was sold to Freeport in 2008.
In 2010, Freeport filed applications with ADWR to transfer surface water rights that had historically been used on Planet Ranch in Mohave County for use at the Bagdad Mining Complex in Yavapai County, which is adjacent to Mohave County on the east. A portion of the water rights would also be used within Mohave County to support the Lower Colorado River Multi-Species Conservation Program. Mohave County filed objections with ADWR, alleging that the transfer might negatively affect residents of the County and would be against the public interest.
ADWR rejected the County’s objections, concluding that Mohave County had no standing to participate in the proceeding since it did not hold any water rights or other interest that is protected under the water transfers statute, found in Arizona Revised Statutes § 45-172. The County appealed that ruling, which led to last week’s decision by the Supreme Court.
The court held that § 45-172 allows ADWR to consider a limited set of factors when determining whether to approve a transfer of surface water rights. The statute requires that the water rights proposed for transfer “shall have been lawfully perfected … and shall not have thereafter been forfeited or abandoned,” and “vested or existing rights to the use of water shall not be affected, infringed upon, nor interfered with” by the transfer. Mohave County did not allege any violation of those standards by the proposed transfer from Planet Ranch, and did not hold any vested water rights itself. Therefore, the court held that the County had not raised any arguments that needed to be considered by ADWR, and the agency did not need to allow the County to participate in the proceeding.
Mohave County argued that a water transfer should be subject to a discretionary public interest test, like that imposed on new appropriations of water. Arizona Revised Statutes § 45-153 allows ADWR to reject a proposed appropriation if the use would be “against the interests and welfare of the public.” The Supreme Court held, however, that the public interest test only applies to new appropriations of water and not to water transfers, since that language appears nowhere in § 45-172. That is consistent with the concept that water rights, once formed, are property rights that can be used or transferred by the owner without ongoing oversight from ADWR, as long as the use does not infringe on the rights of other water users.
The Supreme Court used the factors to be considered by ADWR as the basis for interpreting who may be an “interested person” that can file objections against a water transfer. The term is not defined in the statute, so the court looked to the purpose of objections. The court held that in this context, the phrase “interested person” should mean a person who has an interest protected by § 45-172, i.e., an owner of a vested water right that could be affected by the transfer. Since the County did not fall within that definition, the court ruled that the County had no standing to file an objection, and ADWR was correct in rejecting its participation.
In essence, Mojave County objected to the Planet Ranch water transfer based on the general interest of its citizens, rather than any special interest in the water rights at issue. Water in Arizona is owned and allocated by the state through ADWR, and the Supreme Court denied the attempt by Mohave County to insert itself into that process without a demonstrable interest in water rights. The decision is favorable for water rights holders, since it rejected the argument that ADWR should apply a public interest test to all water transfers. Instead, the Supreme Court affirmed that once an initial appropriation has been made, the resulting water rights constitute legal entitlements that can be freely used and transferred by the owner, in the absence of concrete harm to other water users.
Of course, whether opposing the water transfer would actually be in the interest of Mojave County citizens is debatable, but the political process resulted in County elected officials determining that they should object to the transfer. The Supreme Court’s decision represents a victory of water law over politics, at least temporarily in this matter. Water management often comes down to popular opinions and politics in its most base form, so it is refreshing to see a court applying the law objectively, rather than trying to divine the political currents.
The training will be similar to previous years, updated for new developments in 2015. New this year is that the training is free to all directors of a mutual water company. Charges for prior years have covered the cost of the training, so I can now offer the program without charge. Since there is no charge, I hope some directors will attend who have had the required training but could benefit from a refreshed memory and the 2015 updates.
If you are interested in attending the training or learning more, please call Pat Starkie at (512) 236-2231 or email her at pstarkie@jw.com. I can also answer questions below. I look forward to meeting you.
No year has passed since 2011 without the introduction of new legislation aimed at reforming the management and governance of mutual water companies in California. The 2015 legislative session was relatively light, but two laws regarding mutuals were passed and signed by Governor Brown: Assembly Bills 656 (Garcia) and 1077 (Holden).
Assembly Bill 656 allows mutual water companies to participate with public agencies in joint powers agreements (JPAs) for the purpose of insurance and risk pooling. Such JPAs are common among public agencies, and AB 656 will allow mutual water companies to join those organizations and reduce their insurance costs. Insurance may be provided by a JPA through self-insurance, co-insurance under a master policy or insurance purchased from any insurer authorized to transact business in California. (Cal. Govt. Code §§ 990.4, 990.8(a).) Any revenue generated by the JPA must be used to help its members reduce their risk liabilities and further their technical, managerial and financial capacities. A redline comparing the old and new statutes can be found here.
Assembly Bill 1077 modifies the Mutual Water Company Open Meeting Act, which is found at Corporations Code § 14305 and was adopted in 2013 as part of Assembly Bill 240. A redline of its changes to existing law can be found here. Section 1 of the bill includes legislative findings that are generally positive toward mutual water companies, noting that they have made great improvements since 2013 in their service quality, transparency and finances. The Legislature also found that many mutuals have small or no meeting facilities, and are located in remote parts of the state where meetings are difficult for shareholders to access.
In light of those findings, AB 1077 modified the rules for allowing eligible persons (a term which includes members, customers and local elected officials) to participate in board meetings via teleconference. Existing law required a mutual water company board to allow an eligible person to participate in a board meeting in person, if they gave at least 24 hours notice. Under the law as modified, the board must allow a person who fails to give notice access to the meeting, although the board may require the member to participate by teleconference rather than personally. In addition, a board may require an eligible person to participate by teleconference if the meeting space is too small to accommodate all requested participants. The board must provide all teleconference participants with an electronic copy or photocopy of all documents not related to an executive session held at the meeting. There is no deadline for an eligible person providing notice of their intent to attend a meeting by teleconference, so the Legislature has in effect deleted the notice requirement.
AB 1077 also modified the Open Meeting Act by clarifying that an executive session of the board must take place during a regular meeting. Thus, a board may no longer hold a meeting entirely in executive session. The board will need to call the meeting to order, take public comments, withdraw to executive session, return from executive session and report on the matters discussed there, and adjourn the meeting. That will make mutual board meetings more like public agency meetings.
Although 2015 saw limited legislation aimed directly at mutual water companies, I understand there are plans to make 2016 a more significant year, and mutuals will continue to be affected by the Sustainable Groundwater Management Act of 2014 and the amendments made to that law in 2015. I will post on that topic in the future.


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De nagelaten Brieventas van den alomvermaarden en hoogstverdienstlyken Astrologist, Joh. Christoph. Ludeman. Behelzende Merkwaardigkeiten, Aanmerkingen, Byzonderheden en Lotgevallen (.). Benevens deszelfs sterren-voorzegkundig Treurspel, Chosmadroes, de Afschaffing der Koningen, of het Jaar Zeventien Honderd Vyf en Negentig. In een zinnebeeldigen trant, ter verlichting der Waereld, in de tegenwoordige Omstandingheeden, uitgeven, en onontbeerlyk voor de bezitters van s Mans andere Werken. EA.
Generalkarte von Ungarn, ,. Generalkarte von Ungarn, Siebenbürgen, Sclavonien, Schraembl, 1790. Generalmap of the Balcans, 4 leaves, not put together (total 86x111 cm) wide margins, clean print, only small tears, 3-4 small restorations on centerfold. 'Generalkarte von Ungarn, Siebenbürgen, Sclavonien &&. samt den angraenzenden Laendern...'. Grenzkolor. Kupferkarte in 4 Bl. nach Mikowiny u.a., hrsg. v. F.A. Schraembl, Wien 1790. Jwls. Qu.Gr.Fol. Dörflinger Sch 1/25, 72 D-G. Aus Schraembls 'Allgemeiner großer Atlas'. Ergibt zusammengesetzt ca. 86 x 111 cm. -guter Erhaltungszustand, gering gebräunt, 3-4 kleinere Reparaturen an den Falzen..
1790. Grenzkolorierter Kupferstich, 71 x 67,5 cm. Detaillierte grossformatige Karte von Tirol, von zwei Platten gedruckt. Links unten Legende mit Poststationen, Glashütten, Pulvermühlen, Sauerbrünnen etc. Leicht angestaubt, Faltspuren mit kaum sichbaren Löchern, knapp beschnitten, ca 2 cm Einriss oben, ansonsten gut erhalten. Detailed large map of Tyrol, printed from two plates and set together. In the left lower corner legend with signs for mountain passes, post stations, mills etc. Soft folds slightly dusty with hardly noticeable holes on crossings, ca 2 cm repaired tear above, trimmed to image, otherwise in a good condition.
London - Printed for T. Cadell, 1790. London - Printed for T. Cadell, 1790 Book. Very Good. Hardcover. The History of England, from the Revolution to the Death of George the Second. (Designed as a Continuation of Mr Hume's History) by Tobias Smollett. In five volumes complete. A new edition. With an extensive index to all the volume to rear of volume five. Smollett original wrote A Complete History of Englandin four volumes, published 1757-1758, with a Continuation published from 1760-1765. Tobias George Smollett (1721- 1771) was a Scottish poet and author. He was best known for his picaresque novels, such as The Adventures of Roderick Random (1748) and The Adventures of Peregrine Pickle (1751), which influenced later novelists such as Charles Dickens. Smollett wrote what he regarded as his major work, A Complete History of England, from 1757 to 1765. During this period he served a short prison sentence for libel. 'Designed as a Continuation of Mr Hume's History':The History of England (1754 - 62) is David Hume's great work on England's history which was written in instalments while he was serving as librarian to the Faculty of Advocates in Edinburgh. His History became a best-seller, finally giving him the financial independence he had long sought. Both the British Library and the Cambridge University Library still list him as David Hume, the historian. More a category of books than a single work, Hume's History spanned from the invasion of Julius Caesar to the Revolution of 1688 and went through over 100 editions. Many considered it the standard history of England until Thomas Macaulay's The History of England from the Accession of James the Second. With an advertisement to this edition to front of volume one. Condition: In contemporary calf bindings. Externally with some wear to extremities, rubbing and marks to boards and loss to some spine labels, one almost entirely absent. Five joints starting slightly, four held by cords only, one of which is almost detached, may fail,front board absent to one volume. Internally, text blocks firmly bound. Bright but with occasional scattered foxing and odd slight handling marks. Some pages close cropped, only affecting page numbers. Overall: GOOD ONLY due to joints and loss.
FONT>8.5 by 5 - 438pp, 1790. FONT>8.5 by 5 - 438pp, 1790 Book. Very Good. Hardcover. Four plays by Arthur Murphy, performed at the Theatre Royal in Drury Lane. This is volume III of the complete works of Murphy but all plays are complete. Tittles included are;The Way to Keep Him: A ComedyAll in the Wrong: A ComedyThe Desert island, A dramatic poem, in three actsArthur Murphy (December 27, 1727 - June 18, 1805), was an Irish writer, known by the pseudonym, Charles Ranger. He was born at Clooniquin, County Roscommon, Ireland, the son of Richard Murphy and Jane French. A barrister, journalist, actor, and playwright, he edited Gray's Inn Journal between 1752 and 1754. As Henry Thrale's oldest and dearest friend, it was he who introduced Samuel Johnson to the Thrales in January 1765. He was appointed Commissioner of Bankruptcy in 1803. Murphy is best known for three biographies: his 1792 Essay on the Life and Genius of Samuel Johnson, his 1762 Fielding's Works and his 1801 Life of David Garrick. Thought to have coined the legal term wilful misconstruction whilst representing the Donaldson v. Becket appeal to the House of Lords in 1774 against the perpetual possession of copyright. He died at Knightsbridge, London, and was buried at Hammersmith, London. A biography was written in 1811 by Dr. Jesse Foote. Nathaniel Dance painted his portrait which is thought to now be in the Irish National Portrait Collection. Condition: The binding is generally firm although a little strained in places, exposing the cords. The boards and spine are detached from the main text block. The book has been crudely rebacked with tape. There is wear to all extremities including heavy rubbing to the leather boards and bumping with damage tot he corners. the tape is splitting along the hinges and frayed tot he top and tail of the spine. There is a browned white sticker withMurphy written in copperplate to the spine. Internally the book is generally clean and bright apart from some mild spots in places and some offsetting to the edges of some pages. The front end paper and the final page are detached but present. The first title page is a little browned. The main volume title page is missing. There is a terms of subscription library plate tot he front pastedown with some copperplate marks. Overall this book is very good internally but fair externally..
Preussen - Rang-Liste - Manuskript 1790.
Rang-Liste der Königlichen-Preussischen Generalität, Obristen, Obrist-Lieutenants und Majors pro Aprili 1790. Deutsche Handschrift auf Papier.
1790.. 67 Blatt. 16,5 x 10,5 cm, flexibles Pergament der Zeit mit Einsteckklappe.. Enthält drei Teile mit kalligraphisch gestalteten Titelblättern. Teil 2 betrifft die "Regimenter Infanterie und Cavallerie auch derer dabey befindlichen Generals und übriger Officiers", Teil 3 die "Weselschen Regimenter". - Mit zahlreichen Nachträgen und Korrekturen in Tinte. - Einband etwas fleckig. Aus den Beständen des Reichsarchivs ausgeschieden, Stempel auf Vorsatz und Titel. - Hervorragende militärgeschichtliche und genealogische Quelle.
Frankfurt und Leipzig, (N?erg, Esslinger), 1790.. Frankfurt und Leipzig, (Nürnberg, Esslinger), 1790.. 2 Bl., 472 S., 2 Bll. SS. 473-674, 1 Bl. Blauer Pappband d. Zt. mit Rückenschild. Erste Ausgabe. - Van Dülmen 52; Wolfstieg 41526: "Handelt von den pythagoräischen Mysterien, meist nur in Bezug auf die Ideen der Illuminaten." - Das zweite von Weishaupt nach Aufhebung des Ordens zu Rechtfertigungszwecken verfasste Werk, "mehr langatmig als interessant" (Van Dülmen S. 26). - Etwas berieben. Vorsätze mit alten Anmerkungen, einige Anstreichungen in Bleistift.
Lexicum Poeticum Latino-Germanicum. Seu Apparatus Locuupletissimus Synonymorum, Epithetorum, Phrasium, Descriptionum, Ac Proprietatum Tum Artis Ppoeticae Tum Vocum Latinarum, Usibus Docentium Artem Poeticam Aeque Ac Discentium Accommodatus.
Augustae Vindelicorum, Augsburg. Sumtibus Matthaei Rieger p. m. Filiorum.1790.. Editio in Germania Prima. 22x13,5 cm. 933 S. Marmorierter Kartonband mit Rückenschild und Bibliotheksrückenschild oben. Papier an den Kanten oft abgerieben. Ecken stärker bestoßen. Innen etwas gebräunt. Mit einigen Bibliotheksstempeln auf den ersten drei Seiten. Handschriftlicher Besitzvermerk im Innendeckel. Sonst innen bis auf dezente Gilb- oder Fingerflecke sauber. Ab S. 930 mittig im Bug mit größer werdenem Wachsfleck mit kl. Loch ohne Textverlust.. Accedit APPENDIX Vocum ac Phrasium ad Fidei Christianae Mysteria Atque Institura Pertientium. Mit gestochenem Titelbild.
London, 1790. London, 1790. Twenty-eight b/w engraved plates and maps. 4to. vii, (12), xcv, (1), 372 (108) pp First edition of “one of the early and fundamental books on the Northwest coast of America... In addition to his voyages from China to America in 1788 and 1789, which form the principal part of this work, Captain Meares also describes his earlier voyage to the northwest coast from Bengal.” Lada-Mokarski 46. During his second voyage, Meares assembled the Northwest America, the first ship to be launched in northern waters. He explored the Strait of Juan de Fuca, Port Cox, and Port Effingham, and narrowly missed discovering the Columbia, which he observed but named Deception Bay. His discoveries were the basis for Britain’s claims on the northwest. Spain’s seizure of Meares’ ships and disputation of his claim brought about the famed Nootka Sound Controversy, which nearly resulted in war between the two countries. This account “also gives a full account of the Indian nations of Northwest America, describing their villages, languages, manners, and customs.” - Hill 1126. See also Howes, M469, Forbes 201 (one of Meares’ ships went to Hawaii), Streeter 3491. Bound in full mottled calf, blindstamped on front and back boards with raised bands, gilt tooling and spine label. Text clean, occasional mild tanning or offsetting to plates. Copies frequently appear with fewer plates and maps. This one has the folding plate of the Philippines not present in all copies.
Versuch über die Secte der Illuminaten. Aus dem Französischen von J. M. Heinrich (d. i. Joh. Michael Tzschoppe).
Vue de Schönhausen. Dediee a Sa Majeste la reine Douairiere de Prusse & & .
. lavierter Umrißkupferstich n. C.B. Schwarz b. Morino & Company, um 1790, 24,7 x 37,8. Kiewitz, Nr. 1194; Ernst, C. B. Schwarz, Nr. 4. - Oben rechts unbezeichnet. Die Vorzeichnung zur Ansicht entstand im Jahr 1787, einem Jahr nach dem Tode Friedrich des Großen. - Blick zum Schloß ( halbrechts ), mittig eine von Spaziergängern belebte Allee, links der Park.
Schloß Monbijou, "Vue de Monbijou. Dediee a sa Majeste la Reine Regnante de Prusse & &".
. altkol. Umrißkupferstich v. Metzel n. C.B. Schwarz b. Morino & Company, um 1790, 25 x 38,3. Nicht bei Kiewitz; Ernst, C.B. Schwarz, Nr. 3. - Oben rechts mit "I" bezeichnet. Blick über die Spree zum Schloß, welches durch hohe Hecken fast verdeckt ist. - Tadellos erhalten.
TA., Lange Brücke am Stadtschloß, "Vue de Chateau Royal a Potsdam. Dediee a San Altesse Serenissime Madame la Marggrave de Brandeburg - Anspach & Baireuth etc. etc.".
. altkol. Umrißkupferstich v. Liebezeit n. Nagel b. Morino & Company, um 1790, 25 x 38,4. Drescher/Kroll, Nr. 139 und Abb. 65 ( der Vorlage zu diesem Blatt ). - Oben rechts mit Nummer "IX" bezeichnet. - Sehr schönes Kolorit.
London, 1790. Twenty-eight b/w engraved plates and maps. 4to. vii, (12), xcv, (1), 372 (108) pp First edition of “one of the early and fundamental books on the Northwest coast of America... In addition to his voyages from China to America in 1788 and 1789, which form the principal part of this work, Captain Meares also describes his earlier voyage to the northwest coast from Bengal.” Lada-Mokarski 46. During his second voyage, Meares assembled the Northwest America, the first ship to be launched in northern waters. He explored the Strait of Juan de Fuca, Port Cox, and Port Effingham, and narrowly missed discovering the Columbia, which he observed but named Deception Bay. His discoveries were the basis for Britain’s claims on the northwest. Spain’s seizure of Meares’ ships and disputation of his claim brought about the famed Nootka Sound Controversy, which nearly resulted in war between the two countries. This account “also gives a full account of the Indian nations of Northwest America, describing their villages, languages, manners, and customs.” - Hill 1126. See also Howes, M469, Forbes 201 (one of Meares’ ships went to Hawaii), Streeter 3491. Bound in full mottled calf, blindstamped on front and back boards with raised bands, gilt tooling and spine label. Text clean, occasional mild tanning or offsetting to plates. Copies frequently appear with fewer plates and maps. This one has the folding plate of the Philippines not present in all copies.
London - J. Ridgway, 1790. London - J. Ridgway, 1790 Book. Very Good. Hardcover. A copy of 'Better Late Than Never; A Comedy. In Five Acts. As Performed by the Theatre Royal Drury-Lane' by Miles Peter Andrews. Miles Peter Andrews (1742 July 1814) was an 18th century English playwright, gunpowder manufacturer and politician who sat in the House of Commons from 1796 to 1814. Condition: Rebound in cloth. Externally, in lovely condition with just some bumping to the top of the spine. Internally, firmly bound with some age toning and some spotting and some damp staining to pages 32-35. Overall Condition: VERY GOOD..
um 1790. Bleistift auf Papier, 19,0 x 14,9 cm. Als Traugott Leberecht Pochmann im Jahre 1815 zum Professor im Fach Malerei an der Dresdner Akademie ernannt wurde, genoss er bereits großes Ansehen und sein Name war durch seine vielgelobten mythologischen Kompositionen und Porträts eine feste Größe im Kunstleben der Stadt. Seine erste Ausbildung erhielt Pochmann in seiner Heimatstadt unter Anton Graff, bevor er sich durch die Vorlesungen Giovanni Battista Casanovas beeindrucken ließ, zu dessen engstem Schülerkreis er ab 1787 gehörte. Im Jahre 1800 beteiligte sich Pochmann mit der Zeichnung Hektors Abschied an Goethes Preisaufgabe in Weimar. Zwar erscheint die Prägung durch Casanova in seinen mythologischen Gemälden dominierend und dieser Einfluss sollte auch seine primäre künstlerische Basis bleiben, doch verlieh ihm der Unterricht Graffs in der Porträtmalerei ein allgemein anerkanntes Können, das ihm zu zahlreichen Aufträgen verhalf. In dem vorliegenden Blatt, das vermutlich um 1790 entstanden ist, zeigt Pochmann sich auf der Höhe seiner Zeichenkunst. Die einfühlsame und effektvolle Modellierung der Gesichtszüge und das virtuose, an Bildnisse Gottfried Schadows erinnernde Haar zeigen den Maler in nachdenklich kritischer Pose. Die leichte Schräglage des Kopfes, die sich auf verschiedenen Selbstbildnissen des Künstlers wiederfindet, sowie der forschend suchende Blick verweisen auf eine innere Unsicherheit. In anderen Bildnissen wird dies teilweise durch eine an das Kinn geführte Hand unterstützt. Diese Zurückhaltung spiegelt sich auch in den nervösen Strichen wider, aus denen er die Lebendigkeit des Porträts hervorholt. Der gewischte Hintergrund, der sich lediglich leicht um den Kopf herum aufhellt, trägt zur entrückten Atmosphäre des Blattes bei. Mit erstaunlicher Genauigkeit vermittelt der Künstler ein eindringliches und psychologisiertes Bild seiner Selbst, das ein ganzes Spektrum von Gefühlserlebnissen offenbart. In dem zwischen Sezieren und Suchen oszillierenden Blick steht das Blatt den Selbstbildnissen Caspar David Friedrichs nahe. Der latente Ausdruck innerer Verunsicherung wird durch eine von Wilhelm von Kügelgen überlieferte Begebenheit konkretisiert: "Der gefürchtetste dieser Korrektoren, Professor Pochmann, ging sogar so weit, in Gipszeichnungen schwarze Augäpfel und dunkelhaarige Locken mit beleckter Naturkreide auf unauslöschliche Weise einzugraben, indem er es uns überließ, dergleichen malträtierte, aller weiteren Ausführungen unfähig gewordene Blätter wegzuwerfen." Diese nach Außen getragene Aggressivität deutet auf die Instabilität der eigenen Persönlichkeit hin, die sich in dieser intimen Selbstbefragung Ausdruck verschafft.
"Die Altenburg, das Stammschloß der Grafen von Babenberg". Blick auf das Schloß, vorne links Kuhherde, rechts zwei Reiter.
. Aquatinta in Braun von P.W. Schwarz nach F.K. Schmitt, Nürnberg, um 1790, 24 x 35 cm.. Nicht bei Lentner. - Im Unterrand mit Widmung an Herzog Wilhelm und großem Wappen. Breitrandig und tadellos erhalten.
Sermones de tiempo, escritos en latín por. Traducidos por el Padre Don Pedro Duarte.
sp;- London -G. Kearsley, 1790. sp;- London -G. Kearsley, 1790 Book. Very Good. Hardcover. A collection of the from a wide selection ofSterne's works, including extracts from Tristram Shandy. Eleventh edition 'enlarged, and ornamented with several plates from original drawings'. With bookseller's label to the front pastedown. With a memoir of the author's life and family written by himself. Condition: In a half calf with moire cloth covered boards. Externally, generally sound with bumping and wear to extremities. Slight cracking to joints. Internally, firmly bound. Bright but with slight scattered foxing and marks. Very slight marginal age toning. Closed tear to gutter of page 191. Overall: VERY GOOD.
Seefahrt - Dekret - König Gustav III. von Schweden.
Sr. Königl. Majestät gnädiges Reglement wie es dem Aufbringen zur See gehalten werden soll. Gegeben Amphion vor Anker auf der Rhede zu Helsingfors, den 8. Julii 1788.
Stockholm / zu Stralsund nachgedruckt, Christian Lorenz Struck, 1790.. 28 Seiten, unaufgeschnitten, unbeschnitten. 21 x 17 cm, Rückenbroschur.. VD18 11940670. Verordnung über das Aufbringen von Kriegs- und Handelsschiffen und deren Behandlung. - Gut und sauber erhalten.
"Der FRAENKISCHE KREIS". Kolorierte Kupferstichkarte. Aus: "Schauplatz der Welt" von Reilly. Wien, um 1790. 22,5:25,5 cm. - In Handarbeitsrahmung (43,5:48 cm).
Wien: 1790. Dargestellt ist das durch Flächenkolorit hervorgehobene Gebiet Frankens. Etwa im Mittelpunkt der Karte Bamberg..
Anweisung zur Physik aus dem Lateinischen mit Zusätzen und Anmerkungen von Joseph Bergmann.
Mainz, in der kurfürstlich privilegirten Universitätsbuchhandlung. 1790.. 3 Bände. 8°. XXXII, 280 S. mit 1 gefalteten Tabelle und 3 gestochenen Tafeln; XVI, 310 S. mit 1 gestochenen Tafel; 4 n.n. Bl., 364 S. mit 1 gefalteten gestochenen Tafel. Pappbandbände der Zeit mit braunen Kleisterpapierbezügen, bordeauxroten schwarzgeprägten Rückenschildern.. Poggendorff 1, 311 kennt nur die lateinische Ausgabe von 1775. - Der Jesuit Anton Bruchausen lehrte in Münster, Joseph Bergmann in Mainz. - Band 1 mit einem "Verzeichnis physischer Schriftsteller", in dem sowohl Kant wie auch Athanasius Kircher aufgelistet sind. - Titelblätter gebräunt, sonst wenig fleckig. Vorsätze mit Besitzerstempel "Cantons-Physicus Dr. Kottmann, Solothurn" - Selten.
Schloß Köpenick, "Vue du Chateau de Köpenick. Dediee a Son Altesse Royale Madame la Princesse Henri de Prusse & &".
. altkol. Umrißkupferstich v. Metzel n. C.B. Schwarz b. Morino & Company, um 1790, 25,4 x 38,5. Kiewitz, Nr. 1196; Ernst, C.B. Schwarz, Nr. 5. - Oben rechts mit "IV" bezeichnet. Eine der schönsten und seltensten Ansichten von Köpenick.
Encyclopédie méthodique. Chirurgie, par M. de La Roche, médecin du Régiment des gardes-suisses, membre du Collège de médecine de Genève, & de la Société royale de médecine d'Edimbourg, & M. Petit-Radel, docteur-régent de la Faculté de Paris.
London, Published by S. Middiman, um 1790,. HLDr.der Zeit, unpaginiert, Quer. kl.-4° mit- Ornamentalrückenverzierung u. schwarzem Sachschildchen; ursprüngliche, gemusterte Vorsatzpapiere. Einband etwas berieben, abgegriffen u. gelockert. Kopfkapital beschädigt; jetzt teilweise repariert. Besitzerunterschrift auf Titel. Beschreibungsblatt zu Tafel N° 6 teilweise eingerissen. Kupfern u. Text altersgebräunt, stellenweise leicht abgegriffen u. beschmutzt. Ansonst gutes u. wohlerhaltenes Exemplar. * Our books are stored in our warehouse, not in the shop. Please notify beforehand, if you want to visit us and see a specific book. Unser ZVAB-Bücher-Bestand befindet sich in unserem Lager am Stadtrand Prags, nicht in unserem Geschäft. Bitte, teilen Sie uns vorher mit wenn Sie uns besuchen möchten und bestimmtes Buch auswählen wollten *.
Berlin, 1. V. 1790.. ½ S. Qu.-gr.8vo.. "Daß Se. Excell. der Herr Graf von Bernstorf in Gartau [d. i. Gartow], Ritter des weissen Adlers pp mir im Namen Ihres Herrn Bruders in Kopenhagen 8 Louisd'or, schreibe acht Louisd'or, übersandt haben, bescheinige ich hiemit". - Der "Herr Bruder" Joachim Bchtold Gf. von Bernstorffs ist der dänische Erste Staatsminister Andreas Peter Gf. von Bernstorff (1735-1797), der Schwager der Gebrüder Stolberg. Friedrich Leopold Gf. Stolberg selbst war im Jahr zuvor dänischer Gesandter in Berlin geworden. - In altem Sammlungsumschlag.
Leuthner, Anton Johann Nepomuck von.
Physisch-praktische Beschreibung des allgemeinen, und sonderheitlichen Gebrauches des alt-berühmten Gesundbrunnens, und mineralischen Seifenbades zu Maria Brunn nächst Moching im churpfalzbaierischen Landgerichte Dachau, Oberlandes Baiern.
München, Anton Franz, 1790.. 22,5 x 18,5 cm. 7 Bll., 127 S. Mit gefalteter Karte (Nivellierung des Quellwassers). Rosa Pappband der Zeit mit geprägten Silberfileten.. Engelmann 335; Lesky 393. - Beschreibung des Heilbades Maria Brunn bei Dachau, das Leuthner, der Leibarzt des Kurfürsten Maximilian III., im Jahr 1789 erworben hatte (zu ihm Hirsch-H. III,760). - Maria Brunn nördlich von Ampermoching verdankt sein Entstehen der wundersamen Heilung eines Holzknechts im Jahr 1662 (vgl. Strauß, Heilige Quellen, 120). Erstmals beschrieben wurde es von J. Thiermayer noch im selben Jahr. Seine Beschreibung des "Gsund-Bads" wurde 1743 und 1756 mit einigen Aktualisierungen neu herausgegeben, was auf einen jahrzehntelang blühenden Badbetrieb schließen lässt. 1725 erhielt der Freiherr von Unertl die gesamte Anlage zum Geschenk. Gegen Ende des 18. Jahrhunderts muss aber das Ansehen Maria Brunns zurückgegangen sein, denn Leuthner erwarb ein recht verfallenes Anwesen. - Ohne das Kupfer mit dem Porträt des Freisinger Bischofs, dem das Werk gewidmet ist. Rücken tlw. abgeplatzt, innen gut erhalten.
Printed by William Sleater for P. Wogan, L. White, P. Byrne, W. Porter, W. Sleater, et al., 1790. Printed by William Sleater for P. Wogan, L. White, P. Byrne, W. Porter, W. Sleater, et al., 1790. Full Leather. Very Good binding. An attractive set of Bruce';s Travels, in which he recounts in which he recounts his twelve years in North Africa searching for the origins of the Nile. He did in fact discover the origins of the Blue Nile, and was the first European to follow the Blue Nile to its confluence with the White Nile. The first Dublin edition, in six volumes, in contemporary mottled calf with morocco title and number labels. The front board of Volume I has been discreetly reattached, and the set is quite handsome. Collates complete, with all plates and maps, some of which are folding. Very Good binding.
. altkol. Umrißkupferstich v. Nagel n. Johann Samuel Knüpfer b. Morino & Company, um 1790, 24 x 34. Drescher/Kroll, Potsdam, Ansichten aus 3 Jahrhunderten, Nr. 413 II; Berndt, Märkische Ansichten, Nr. 1505. - Vorliegend oben rechts mit Nummer "VII". Blick über die Havel. - Gereinigtes Blatt.
DOCUMENTOS ARABICOS PARA A HISTORIA PORTUGEZA COPIADOS DOS ORIGINALES DA TORRE DE TOMBO COM PERMISSAO DE S.MAGISTAD VERIDOS EN PORTUGUEZ POR ORDEM DA ACADEMIA REAL DAS SCIENCIAS DE LISBOA.
sque'en 1790 par le Baron de Grimm, 1813. sque'en 1790 par le Baron de Grimm, 1813 Book. Very Good. Hardcover. First edition. The scarce first editionof these French memoires of the authorBaron de Grimm. In French. With frontispiece of le Baron de Grimm to the first volume. Grimm was born at Regensburg, the son of a pastor. He studied at the University of Leipzig, where he came under the influence of Johann Christian Gottsched and of Johann August Ernesti, to whom he was largely indebted for his critical appreciation of classical literature. When nineteen he produced a tragedy, Banise, which met with some success. After two years of study he returned to Ratisbon, where he was attached to the household of Count Schnberg. In 1748 he accompanied August Heinrich, Count Friesen, to Paris as secretary, and he is said by Rousseau to have acted for some time as reader to Frederick, the young hereditary prince of Saxe-Gotha. With the aid of friends, especially of Diderot and Mme d'pinay, who reviewed many plays, always anonymously, during his temporary absences from France, Grimm himself carried on the Correspondence littraire, which consisted of two letters a month that were painstakingly copied in manuscript by amanuenses safely apart from the French censor in Zweibrcken, just over the border in the Palatinate, until 1773. By circumventing censorship, the Correspondance supplemented the quasi-official cultural reporting in the Mercure de France. Complete in four volumes. Condition: In original publisher'scloth bindings. Externally, rubbed, with some bumping. Internally, binding strained in places. One hinge strained. Pages are bright, though with some scattered spotting and handling marks throughout. Overall: GOOD ONLY..
DES LOIX PENALES. A PARIS, CHEZ BUISSON, 1790. 2 TOMOS. 4 PARTES. 20X13. 144, 156, 207 Y 163 PGS. TEXTO EN FRANCES. ENCUADERNACION EN 1 / 2 PIEL DE EPOCA. C. 500?
London - Printed for T. Cadell, 1790. London - Printed for T. Cadell, 1790 Book. Very Good. Hardcover. An Inquiry, Historical and Critical, into the Evidence against Mary Queen of Scots; And An Examination of he Histories of Dr Robertson and Mr. Hume, with respect to that Evidence by William Tytler. In two volumes complete. Fourth edition, containing several additional chapters, and an introduction. William Tytler (1711 - 1792), historical writer, was a lawyer in Edinburgh, and wrote An Inquiry into the Evidence against Mary Queen of Scots, in which he combated the views of Robertson. He discovered the King's Quhair of James I. , and published in 1783 The Poetical Remains of James I. , King of Scotland, with a Life. 'His Inquiry, Historical and Critical, into the Evidence against Mary Queen of Scots, first published in 1760, was well received by reviewers, including Samuel Johnson and Tobias Smollett, and was translated into French. It critically examines the evidence used and the conclusions reached in the earlier treatments of the subject by, among others, Pierre Bayle, William Robertson, and David Hume, as well as taking into account further evidence that had become available. An example of Tytlers probing examination of supposed evidence against Mary is provided by his consideration of some of her correspondence. In conclusion, Tytler states that he is convinced that no impartial jury, or judge, could, upon conscience, have given judgement for these Letters as genuine, and returned a verdict and sentence in their favour. '[from the catalogue of D. A. Pailin]Previous owner's ink inscriptions dated 1846 to front free endpapers and with biographical information about Tytler from the Oxford Dictionary of National Biography inserted. From the antiquarian library of Emeritus Professor David Arthur Pailin, with bookplates to front pastedown inscribed December 1989 in ink. Condition: In moir cloth covered boards. Externally, sound but with some wear to extremities, rubbing and marks to boards. Internally, generally firmly bound. Bright but with slight foxing to endpapers, scattered spotting, in particular to text block edges and handling marks. Overall: VERY GOOD.
Atlas geographique, dresse selon les regles stereographiques et selon les plus nouvelles decouvertes avec un abrege de geographie et de Genealogie en Danois & Francois.
. Copenhague: Pierre Steinmann 1790. Double-paged titlepage + 53 (of 56) engraved maps, partly handcoloured, fragments mounted on thick paper. 4to. In worn contemporary boards mounted with fragments of original cover. * First published 1779.<br>Missing plates: no. 19 'Toscana'; no. 28 'Tycho Brahe's system'; no. 45 'the astronomical tower'..
London - G. Kearsley, 1790. London - G. Kearsley, 1790 Book. Very Good. Hardcover. One disbound volume. A lovely copy of this scarce satirical work. John Wolcot (1738-1819) wrote under the nom-de-plume of Peter Pindar, and was chiefly a satirist. In 1780, Wolcot went to London and commenced writing satires. The first objects of his attentions were the members of the Royal Academy, and when these attempts were well received the King and Queen became the most frequent marks for his satirical shafts. In 1786 appeared The Lousiad, a Heroi-Comic Poem, taking its name from a legend that a louse had once appeared on the King's dinner plate. Other subjects were Boswell, the biographer of Samuel Johnson, and James Bruce, the Abyssinian traveller. Wolcot, had a remarkable vein of humour and wit, which, while intensely comic to persons not involved, stung its subjects to the quick. He had likewise strong intelligence, and a power of coining effective phrases. In other kinds of composition, as in some ballads which he wrote, an unexpected touch of gentleness and even tenderness appears. Among these are The Beggar Man and Lord Gregory. Presumably the Poet Laureate in question was Henry James Pye who ascended to the position in 1790. He certainly didn't become one of the better-known holders of this post!Condition: This volume is disbound. The text block is tight and firm. There is some minorwear to the outer pagesbut internally the pages are generally clean and bright with only a few occasional handling marks. Overall, the condition of this volume is very good and would be lovely rebound..
"Kaart van het zuidelyk gedeelte van Afrika tot verstand van de twee Reizen van Le Vaillant".
1790. Kupferstich-Karte von C. van Baarsel, ca. 1790. Ca. 40 x 58,8 cm. Faltspuren, zwei Fehlstellen im Bereich des 15. Längengrads. Not in Norwich-Stone, Maps of Africa. Compare pages 204/05, map No. 181.. Seltene Karte der Reisen von Francois Levaillant in Südafrika, gestochen vom holländischen Kupferstecher C. van Baarsel (1761-1826), rechts unten mit der Stechersignatur "C. van Baarsel scuplt.". Die detaillierte Karte zeigt Südafrika mit den eingezeichneten Reiserouten (und Ereignissen). Francois Le Vaillant (1753-1824) aus Surinam unternahm in den Jahren 1783-85 zwei große Reisen durchs Kapland mit wichtigen Ergebnissen zur Kenntnis der Zoologie, besonders der Ornithologie, sowie der afrikanischen Volksstämme. Rare map of Southafrica, depicting the two journeys of F. Levaillant in 1783-1785. The map is not in Norwich-Stone, Maps of Africa, and we cannot trace it in the trade worldwide. Map 181 in Norwich-Stone is probably copied after the present map, because our map shows more details, as for ex. the "Wooning" and "Legerplats" of the journeys. Two repairs (see picture). Crease hints, two wholes at the area of the 15th longitude.
Gesamtans., mit Schloß Friedensburg, "Das Berg Schloss Liegtimbergen im Coburgschen I. Vue".
. lavierte Umrißkupferstich v. Carl Benjamin Schwarz aus Schwarz, Reise an der Saale, um 1790, 18,5 x 28,5. Sehr seltene Ansicht. Nachweis nur im Stadtmuseum Jena. Siehe Birgitt Hellmann, Die Radierungen des Leipziger Künstlers Carl benjamin Schwarz ( = Katalog der Städtischen Museen Jena), Seite 18.

matches: v. v. v. v. v. V. v. v.


MILTON R. SANTOS vs. U.S. BANK NATIONAL ASSOCIATION, trustee, & others.
Suffolk. February 24, 2016. – July 8, 2016.
Present: Katzmann, Milkey, & Blake, JJ.
Bank. Loan. Mortgage, Real estate, Foreclosure. Real Property, Mortgage. Notice. Practice, Civil, Motion to dismiss, Summary judgment, Summary process. Summary Process.
Michael J. Traft (Robert Graves with him) for the plaintiff.
Sean R. Higgins (Michael Stanley with him) for the defendants.
KATZMANN, J. The plaintiff mortgagor Milton R. Santos appeals from orders of a Superior Court judge dismissing his claim that the mortgagee and mortgage servicing defendants violated G. L. c. 244, § 35A, and granting summary judgment to the defendants on his claim that U.S. Bank National Association (U.S. Bank) negligently processed his loan modification applications made pursuant to the Home Affordable Modification Program (HAMP). We affirm.
Background. We recite the facts alleged in Santos’s complaint as supplemented by the undisputed facts in the summary judgment record and descriptions of HAMP from case law.
HAMP. “HAMP was part of Congress’s response to the financial and housing crisis that struck the country in the fall of 2008.” Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 772 (4th Cir. 2013). Acting under authority conferred by the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C.
§ 5201 et seq. (and specifically the Troubled Asset Relief Program [TARP], 12 U.S.C. §§ 5211–5241), and in conjunction with the Federal Housing Finance Agency, the Federal National Mortgage Association (Fannie Mae), and the Federal Home Loan Mortgage Corporation (Freddie Mac), the Secretary of the Treasury (Secretary) introduced the Making Home Affordable Program in February, 2009. HAMP, which is administered by Fannie Mae, is part of this initiative. Markle v. HSBC Mort. Corp. (USA), 844 F. Supp. 2d 172, 176 (D. Mass. 2011).
levels. . . . Under HAMP, loan servicers receive incentive payments for each permanent loan modification completed. . . . Mortgage lenders approved by Fannie Mae must participate in HAMP. . . . Lenders servicing mortgages not owned or guaranteed by Fannie Mae or Freddie Mac may elect to participate in HAMP by executing a Servicer Participation Agreement with Fannie Mae in its capacity as financial agent for the United States.” Id. at 176-177. “Loan servicers receive a $ 1,000 payment for each permanent modification, in addition to other incentives.” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 229 (1st Cir. 2013).
“The Secretary negotiated Servicer Participation Agreements (SPAs) with dozens of home loan servicers . . . . Under the terms of the SPAs, servicers agreed to identify homeowners who were in default or would likely soon be in default on their mortgage payments, and to modify the loans of those eligible under the program.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir. 2012). On August 20, 2009, U.S. Bank executed an SPA with Fannie Mae. “The Department of the Treasury and Fannie Mae have issued a series of directives that provide guidance to mortgage servicers implementing HAMP. Under the guidelines, servicers may identify and solicit borrowers who are in default on their mortgage payments, or soon will be, and evaluate their eligibility to participate in HAMP.” Markle, 844 F. Supp. 2d at 177.
“HAMP urges banks and loan servicers to offer loan modifications to eligible borrowers with the goal of reducing [their] mortgage payments to sustainable levels, without discharging any of the underlying debt.” Young, 717 F.3d at 228 (quotation omitted). Under the guidelines, HAMP-eligible homeowners are offered a trial period plan (TPP) in which the homeowner undertakes to pay modified mortgage payments for a three-month trial period. “The standard-form TPP represents to borrowers that they will obtain a permanent modification at the end of the trial period if they comply with the terms of the agreement.” Markle, 844 F. Supp. 2d at 177. Freddie Mac “is the sole compliance agent responsible for enforcing HAMP.” Spaulding, 714 F.3d at 774.
against financial industry firms.” Ibid.
Santos’s mortgage history. On April 28, 2006, Santos purchased a residential property in Revere (property) for $ 368,000. He financed the purchase with two mortgage loans that together covered 100 percent of the purchase price. After an assignment from the initial lender, Santos’s first mortgage in the amount of $ 294,400 was held by U.S. Bank, as trustee for a securitized pool of mortgages, and serviced by Wells Fargo Bank, N.A., doing business as America’s Servicing Company.
Santos defaulted on his mortgage in 2008. Between 2009 and 2010, the defendants evaluated Santos several times for a permanent loan modification under HAMP. Despite Santos’s participation in a three-month HAMP TPP, the defendants ultimately denied all of Santos’s applications for a permanent loan modification under HAMP. In April, 2010, the defendants offered Santos an in-house modification (that is, not a HAMP modification) that Santos declined.
On July 22, 2010, the defendants foreclosed on the mortgage and purchased the property at the foreclosure sale for $ 212,415.
Procedural history. Subsequent to foreclosure, on March 7, 2011, the defendants initiated a summary process action in the District Court. Santos answered the summary process complaint, asserting, inter alia, that he was in the process of bringing a case in Superior Court against the defendants for various claims, including a violation of G. L. c. 244, § 35A.
Meanwhile, the summary process action in District Court proceeded, culminating in a judgment in favor of U.S. Bank for possession on December 1, 2011. Santos’s appeal from the judgment of possession was dismissed.
The defendants moved to dismiss the Superior Court action pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on June 7, 2011, before the resolution of the summary process action. Where that motion apparently remained pending beyond the conclusion of the summary process case, the defendants ultimately filed a supplemental memorandum in support of dismissal after the District Court judgment issued.
In an order dated January 3, 2013, the Superior Court judge dismissed Santos’s § 35A claim on the basis of claim preclusion where the claim could have been brought in the summary process action between the identical parties. However, the judge denied the defendants’ motion to dismiss Santos’s negligence claim, allowing it to proceed based on her conclusions that, under Federal law, Santos is a third-party beneficiary under the SPA between Fannie Mae and U.S. Bank and that, as a third-party beneficiary, Santos could pursue a claim for negligent performance of the duties imposed by the SPA. However, when the case later came before her for summary judgment on the negligence claim, the same judge granted summary judgment in favor of the defendants on the basis that, under the economic loss theory as articulated in FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993), Santos had not presented evidence of a legally cognizable injury that would support his negligence claim.
law. . . . De novo review also applies to the judge’s dismissal of the plaintiffs’ complaint under Mass.R.Civ.P. 12(b) . . . (6).” Pinti v. Emigrant Mort. Co., 472 Mass. 226, 231 (2015) (quotation omitted). To survive a motion to dismiss, the complaint must include “factual ‘allegations plausibly suggesting’ . . . an entitlement to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007).
Although the judge did not have the benefit of some of the recent opinions of the Supreme Judicial Court in the mortgage context, we are satisfied that the § 35A claim was properly dismissed under the circumstances here where Santos should have litigated it in the summary process action. Because we agree with the overwhelming weight of authority that borrowers cannot maintain negligence actions against lenders for failure to adhere to HAMP guidelines, we conclude that Santos’s negligence claim should have been dismissed pursuant to the rule 12(b)(6) motion and was therefore properly, if belatedly, resolved in the defendants’ favor on summary judgment.
Right to cure violation. Santos contends that the defendants failed to provide him with notice of his right to cure the mortgage default as required under G. L. c. 244, § 35A. The judge correctly determined that res judicata bars Santos from pursuing this claim now when he could have done so in the District Court summary process action.
Res judicata. “The term ‘res judicata’ includes both claim preclusion and issue preclusion. Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action. This is based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit. The invocation of claim preclusion requires three elements: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005) (quotations and citation omitted). “It is the general rule that when two different actions involving the same parties and the same claim are pending at the same time, the final judgment first rendered is entitled to res judicata effect in the second action, regardless of which was commenced first.” Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 690 (1974), citing Restatement of Judgments § 43 (1942) and Restatement (Second) of Judgments § 41.1 (1982).
The elements of claim preclusion are satisfied here. The parties are identical or in privity with those in the summary process action. The cause of action was also sufficiently identical where Santos has framed his § 35A claim as one that would establish that the foreclosure was invalid, which would also have defeated U.S. Bank’s title in the summary process action. That summary process action proceeded to final judgment. The summary process judgment, which became final when Santos’s appeal was dismissed, established U.S. Bank’s superior title and subsumed all related claims, including the question whether any defect in the notice of right to cure undermined U.S. Bank’s title.
Santos contends that claim preclusion is inapplicable to his § 35A claim because he preserved the issue by explicitly reserving his right to bring an action in Superior Court for violation of § 35A in his summary process answer. However, litigants cannot unilaterally reserve rights to bring claims in later actions. Rather, the preservation of claims in this manner is the exclusive province of the court hearing the action. “Under a generally accepted exception to the res judicata doctrine, a litigant’s claims are not precluded if the court in an earlier action expressly reserves the litigant’s right to bring those claims in a later action” (emphasis added). Perroncello v. Donahue, 64 Mass. App. Ct. 564, 570 (2005), S.C., 448 Mass. 199 (2007), quoting from Apparel Art Intl., Inc. v. Amertex Enterprises Ltd., 48 F.3d 576, 586 (1st Cir. 1995), and citing Restatement (Second) of Judgments § 26(1)(b) (1982). See Chadbourne v. Chadbourne, 245 Mass. 383, 384 (1923) (res judicata not applicable to question that “not only was not litigated but was expressly reserved by the court”). Absent a judicial reservation, res judicata principles prohibit parties from proceeding by way of “piecemeal litigation, offering one legal theory to the court while holding others in reserve for future litigation should the first theory prove unsuccessful.” Bagley v. Moxley, 407 Mass. 633, 638 (1990) (claim that was “capable of being raised” and “should have been raised” in prior action is “barred from relitigation” in subsequent action).
Santos’s opposition to application of res judicata is further weakened by the absence of any plausibly legitimate reason for trying to pursue piecemeal litigation. In his answer to the summary process action, Santos noted that he was “in the process of bringing a court case against [U.S. Bank] alleging wrongful foreclosure and the following claims relating to the mortgage on the property and the underlying loan: . . . Violation of [G. L. c. 244, §] 35A.” Santos did not indicate in any way that he had doubts about the propriety of raising such claim in a summary process action.
Santos also did not suggest in his summary process answer, or any other filing, that he doubted the District Court’s jurisdiction. The elucidation provided by subsequently decided cases does not support Santos’s claim — never raised in either proceeding below — of jurisdictional confusion. For example, Bank of America, N.A. v. Rosa, 466 Mass. 613 (2013), may have clarified the expanded jurisdiction of the Housing Court, but U.S. Bank brought its summary process action in District Court. Santos has not suggested any basis to doubt the District Court’s jurisdiction even prior to Rosa. See G. L. c. 218, § 19, as amended by St. 2004, c. 252, § 5 (“Notwithstanding the limitation of $ 25,000, or other amount ordered by the supreme judicial court, the district courts may proceed with actions for money damages in any amount in summary process actions”); G. L. c. 218, § 19C, as amended by St. 2004, c. 252, § 8 (“The district court and Boston municipal court departments of the trial court shall have the same equitable powers and jurisdiction as is provided for the superior court pursuant to chapter 214 and the same authority with regard to declaratory judgments as is provided for the superior court pursuant to chapter 231A for the purpose of the hearing and disposition of summary process actions and of civil actions for money damages under section 19 of this chapter”); G. L. c. 231, § 31, as amended by St. 1973, c. 1114, § 164 (“In the district courts, the defendant may allege in defense any facts which would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action or against a judgment recovered by the plaintiff in such action”). Santos has not claimed that he needed Rosa‘s discussion of G. L. c. 231, § 31, to understand the statute’s import for his case. See Rosa, 466 Mass. at 620 (“Section 31 allows a summary process defendant to raise equitable defenses in the District Court that may ‘absolutely and unconditionally’ defeat the plaintiff’s claim. Such defenses are not limited to failure to comply strictly with the power of sale of a mortgage. They may include, without limitation, the defense of payment of the mortgage note”).
Finally, where Santos requested, but did not receive, a stay of the summary process action, it was unreasonable for him to believe that he could unilaterally hold back certain claims for a later date or an alternate forum. Santos concluded his summary process answer by requesting that the District Court “stay all Summary Process proceedings in this Court while [he] files a complaint in the Superior Court to quiet title on [his] home and bring the accompanying claims against [U.S. Bank].” There is no indication in the record that the District Court ever acted on this request. On appeal, Santos himself reports that his attempt to stay the summary process action by seeking a temporary restraining order in Superior Court was unsuccessful.
It is not acceptable for a homeowner mortgagor to seek to force a foreclosing lender to litigate in multiple venues across separate proceedings by unilaterally holding certain claims back from summary process when those claims are within the summary process court’s jurisdiction and assertedly essential to the determination of superior title. “Res judicata will be employed by the courts to prevent the splitting of a cause of action where the party to be precluded (here [Santos]) had both the opportunity and the incentive to litigate all related matters fully in the original lawsuit.” Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 567 (2004). See id. at 562 (applying Federal res judicata law and concluding that dismissal of State court action after resolution of previously filed Federal action between same parties arising from same nucleus of operative facts was appropriate response to plaintiff’s “disfavored claim splitting contrary to well-established doctrine and policy”). We therefore conclude that application of res judicata is appropriate here where it will “serve to ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’” Bagley, 407 Mass. at 636, quoting from Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 449 (1982).
Furthermore, the policy considerations underlying res judicata generally are particularly applicable here as they are consistent with “the legislative goal of ‘just, speedy, and inexpensive’ resolution of summary process cases,” which policy “is compromised if the [summary process court] must stay summary process proceedings while litigation on the validity of the foreclosure proceedings continues in another court.” Bank of N.Y. v. Bailey, 460 Mass. 327, 334 (2011). See Federal Natl. Mort. Assn. v. Rego, 474 Mass. 329, 339 (2016) (presentation of all defenses and counterclaims, including those not affecting right to possession, before the summary process judge “conserves judicial resources because the [summary process] judge already will be familiar with the issues presented; it also reduces further expenditure of resources by a summary process defendant, who otherwise would be required to file a separate action in another court”). Santos’s attempt to force the defendants to litigate on two fronts was therefore “precisely the type of unnecessary delay and inefficiency that the Legislature intended to eliminate when it reorganized the trial courts in the Commonwealth.” Bailey, 460 Mass. at 334.
Impact of recent Supreme Judicial Court decisions. Santos also contends that his claim cannot be precluded where he believes that the concurring opinion in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014), decided after the relevant events here, supports the approach he pursued below. But Santos’s reliance on Schumacher is misplaced. In Schumacher, the Supreme Judicial Court held that a borrower’s “challenge to the notice [issued pursuant to G. L. c. 244, § 35A,] should have been raised in an independent equity action in the Superior Court, not in a postforeclosure summary process action in the Housing Court where the only legal issue for the court is whether the mortgagee obtained title to the property in strict accordance with the power of sale.” Id. at 429. But the court also stated that “the proper avenue by which a homeowner can challenge a mortgagee’s compliance with G. L. c. 244, § 35A, is either filing an independent equity action in the Superior Court, or asserting counterclaims pertaining to § 35A in response to the mortgagee’s postforeclosure summary process action.” Id. at 422 n.4.
In his concurring opinion in Schumacher, then Justice Gants provided further explication of the implications of the majority’s opinion. He wrote that “where a defendant in the summary process action claims a violation of the requirements in § 35A to provide timely and adequate written notice of the right to cure the default, the defendant must prove more than a mere violation of § 35A to defeat the eviction because, as the court notes, § 35A is not one of the statutes relating to the foreclosure of mortgages by the exercise of a power of sale. Rather, to defeat the eviction, the defendant must prove that the violation of § 35A rendered the foreclosure so fundamentally unfair that she is entitled to affirmative equitable relief, specifically the setting aside of the foreclosure sale for reasons other than failure to comply strictly with the power of sale provided in the mortgage.” Id. at 432-433 (Gants, J., concurring) (quotations omitted).
We understand Schumacher, as explicated by Justice Gants, to explain that a homeowner claiming a right to cure notice violation needs to take affirmative action in Superior Court prior to foreclosure and certainly prior to finding herself a defendant in a postforeclosure summary process action if she hopes to halt the foreclosure process by showing something less than a violation of § 35A that would render foreclosure fundamentally unfair. See Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 501 (2014). “[T]he appropriate avenue for a borrower to raise a challenge to the form of notice given under § 35A is by means of an equitable action, prior to foreclosure, seeking to enjoin the foreclosure” (emphasis added). Haskins v. Deutsche Bank Natl. Trust Co., 86 Mass. App. Ct. 632, 634 (2014), citing Schumacher, 467 Mass. at 422 n.4. See Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct. 374, 379-380 (2016). If a homeowner waits until he is being evicted in a postforeclosure summary process action, he will need to show a violation of § 35A that rises to the level of fundamental unfairness. Accordingly, the summary process action was indeed the proper venue for Santos to litigate his § 35A claim after foreclosure. There was no need for him to go to Superior Court.
At oral argument, Santos suggested that it would be unfair to hold him to a procedural landscape that had yet to fully take shape when he sought to pursue the § 35A claim in Superior Court. He contends that the summary process court’s jurisdiction to deal with the equity complaint he sought to pursue in Superior Court was questionable at the time. This is no doubt a challenging area of the law. See Schumacher, 467 Mass. at 431 (Gants, J., concurring) (“[O]ur jurisprudence in this area of law is difficult for even attorneys to understand”). Indeed, Schumacher clarified the role of § 35A claims in summary process proceedings. This clarification, however, suggests that Santos would have had even more incentive to raise the § 35A claim in a summary process action prior to Schumacher‘s determination that § 35A is not “part and parcel of foreclosure proceedings by the exercise of a power of sale.” Schumacher, 467 Mass. at 430.
“Massachusetts foreclosure law includes the right-to-cure notice in a mortgage’s power of sale requirements. . . . [B]ecause a foreclosure cannot begin until the right-to-cure notice requirement is complied with, G. L. c. 244, § 35A is part of the mortgage’s power of sale requirements. . . . G. L.
The established law was already clear that postforeclosure summary process defendants could put the plaintiff’s title in issue. See Bank of N.Y. v. Bailey, 460 Mass. at 333 (“Challenging a plaintiff’s entitlement to possession has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale”). See also New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 195 (1906); Sheehan Constr. Co. v. Dudley, 299 Mass. 51, 53 (1937); Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966). Santos was well aware of the state of the law as he cited several cases standing for this very proposition in his summary process answer, including language in Wayne Inv. Corp., 350 Mass. at 775, that a bank’s acquisition of title in strict compliance with the power of sale “is subject to challenge” in a summary process action.
Where Santos believed that § 35A was included in the mortgagee’s power of sale requirements and he understood that strict compliance with the power of sale was a defense to summary process, he faces no unfairness in being held to litigate his § 35A claim in the summary process action.
Negligent loan modification processing. Santos contends that the defendants were negligent in their handling of his applications for HAMP loan modification. This claim fails as a matter of law and should have been dismissed pursuant to the defendants’ rule 12(b)(6) motion.
To prevail on a claim for negligence, Santos must prove: (1) a legal duty owed to him by the defendants; (2) a breach of that duty; (3) causation; and (4) an actual loss. Delaney v. Reynolds, 63 Mass. App. Ct. 239, 241 (2005). Existence of a duty in a negligence case is “a question of law.” Cottam v. CVS Pharmarcy, 436 Mass. 316, 320 (2002).
It is now well-established that, as a matter of law, HAMP does not create a duty of care owed by mortgagees to mortgagors.
See, e.g., MacKenzie v. Flagstar Bank, FSB, 738 F.3d 486, 495-496 (1st Cir. 2013) (decided subsequent to judge’s order on motion to dismiss here). The rejection by the United States Court of Appeals for the First Circuit (First Circuit) of HAMP-based negligence claims is consistent with that of the majority of Federal court decisions in Massachusetts (before and after MacKenzie) as well as across the country. The consensus among these courts is that there is no private right of action under HAMP and that borrowers are not intended third-party beneficiaries of SPAs or similar contracts between lending banks and Fannie Mae. Although the concepts of private rights of action, intended beneficiary status, and duty of care are all somewhat interconnected in the context of HAMP-based negligence claims, the former two are clearly questions of Federal law while the latter is resolved with reference to State common-law principles. Nonetheless, the clear trend of Federal courts applying State law is that neither HAMP nor the relationship between a borrower and her servicer/lender imposes any duty of care owed by lending banks and servicers to borrowers. See, e.g., Wigod, 673 F.3d 547 (applying Illinois law); Spaulding, 714 F.3d 769 (applying Maryland law); Milton v. U.S. Bank Natl. Assn., 508 Fed. Appx. 326 (5th Cir. 2013) (per curiam) (applying Texas law); Rush v. Freddie Mac, 792 F.3d 600 (6th Cir. 2015) (applying Michigan law); Markle, 844 F. Supp. 2d at 185 (declining “the invitation to recognize in the HAMP guidelines a new duty of care, thus far unrecognized by Massachusetts courts”); Brown vs. Bank of America Corp., U.S. Dist. Ct., No. 10–11085 (D. Mass. Mar. 31, 2011) (“[W]hile violation of a regulation such as HAMP may provide evidence of a breach of a duty otherwise owed, it does not create such a duty in the first place”); Souza vs. Bank of America, U.S. Dist. Ct., Natl. Assn., No. 1:13–cv–10181–PBS (D. Mass. July 8, 2013) (“Every Court of Appeals that has addressed the issue has concluded that HAMP does not provide an implied right of action under federal law. . . . Regarding negligence claims, every Court of Appeals that has addressed the issue has denied HAMP-based negligence claims”) (collecting cases); Almeida vs. U.S. Bank Natl. Assn., U.S. Dist. Ct., No. 12–11565–RWZ (D. Mass. Mar. 10, 2014). We agree with the reasoning and analysis of these courts and conclude that, under Massachusetts law, HAMP does not impose a duty of care owed by lenders and servicers to borrowers.
In declining to dismiss Santos’s negligence claim pursuant to rule 12(b)(6), the judge concluded that Santos had alleged a plausible claim for negligence based on her determination that Santos was a third-party beneficiary of the SPA between U.S. Bank and Fannie Mae. The First Circuit has reached the opposite conclusion. See MacKenzie, 738 F.3d at 492 (borrowers may not enforce HAMP guidelines by claiming third-party beneficiary status under SPA). In our view, the basis of the judge’s denial of the motion to dismiss as to the negligence claim is no longer viable. See Markle, 844 F. Supp. 2d at 180 (“[I]t is . . . generally established that federal common law controls the interpretation of contracts entered into pursuant to federal law and to which the United States is a party”); Seidel vs. Wells Fargo Bank, N.A., U.S. Dist. Ct., No. 12–10766–RWZ (D. Mass. July 3, 2012) (“HAMP is a federal program and as such interpretation of the HAMP contract is controlled by federal law”).
Thus, if Santos’s negligence claim is to survive, he must identify an alternate legal basis for the existence of a duty of care. Santos has failed to establish the existence of such a duty.
In general, “[t]he relationship between a borrower and lender does not give rise to a duty of care under Massachusetts law.” MacKenzie, 738 F.3d at 495. Cf. Clark v. Rowe, 428 Mass. 339, 346 (1998) (agent acting for bank that refinanced loan on property “owed no duty of care to the plaintiff borrower”); Shawmut Bank, N.A. v. Wayman, 34 Mass. App. Ct. 20, 24 (1993) (lending bank owes no duty to exercise reasonable care to guarantor on commercial loan).
There are some exceptions to this general rule. For example, mortgage holders do in fact have a duty to “act in good faith and must use reasonable diligence to protect the interests of the mortgagor” in the context of an extrajudicial foreclosure and exercise of power of sale. Williams v. Resolution GGF Oy, 417 Mass. 377, 382-383 (1994) (quotation omitted). See West Roxbury Co–Op. Bank v. Bowser, 324 Mass. 489, 492 (1949) (“It is familiar law that a mortgagee in exercising a power of sale in a mortgage must act in good faith and must use reasonable diligence to protect the interests of the mortgagor”). Lenders also have a duty of good faith and fair dealing in the performance of their obligations under the mortgage. See Shawmut, 34 Mass. App. Ct. at 25 (“[U]nder Massachusetts law, every contract contains an implied covenant of good faith”).
However, neither the implied covenant nor the duties arising from foreclosure extends to preforeclosure loan modification processing where the mortgage loan documents do not themselves contemplate such modifications. See MacKenzie, 738 F.3d at 493 (“[I]n the event of foreclosure, the existence of a duty of good faith is tied directly to the mortgagee’s contractual right to exercise a power of sale”); Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004) (covenant of good faith and fair dealing may not “be invoked to create rights and duties not otherwise provided for in the existing contractual relationship”). “Nor can the mortgage and promissory note be said to incorporate the HAMP guidelines or impose on the servicer a duty to offer a HAMP modification, as the documents were executed before the EESA was enacted.” Markle, 844 F. Supp. 2d at 183 n.11.
In the absence of a duty of care owed to him by the defendants, Santos’s negligence claim fails even if we assume that he could show statutory or regulatory violations in connection with the defendants’ processing of his HAMP modification applications because “statutory or regulatory violations cannot give rise to a negligence claim when there is no independent duty of care between the parties.” MacKenzie, 738 F.3d at 495. HAMP itself does not provide that duty of care. See Larivaux vs. Bank of America, N.A., U.S. Dist. Ct., No. 12–11172–FDS (D. Mass. June 6, 2013) (“Because no duty of care is established by the HAMP guidelines, plaintiff has not set forth a plausible claim for negligence”). In affirming the dismissal of a HAMP-based negligence claim, the First Circuit further explained that “[w]here an independent duty of care exists, the violation of a statute or regulation can provide evidence of a breach of that duty, even if the statute or regulation itself does not create a private right of action. But in the absence of an independent duty, a plaintiff cannot proceed with a negligence claim based solely on a statutory or regulatory violation.” MacKenzie, 738 F.3d at 496. Because we conclude that Santos’s negligence claims falter on the element of duty, we need not address the defendants’ additional contentions regarding infirmities on other elements of the claim.
Order allowing motion to dismiss affirmed.
Order allowing defendant’s motion for summary judgment affirmed.
 Also known as Milton R. Dossantos.
 Of the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, 2006-EQ1.
 U.S. Bancorp and Wells Fargo Bank, N.A., doing business as America’s Servicing Company. Where Santos has not suggested any reason to differentiate between the various named defendants in terms of his theories of liability and the defendants have presented a unified defense, we collectively refer to all the defendant parties as “defendants” except where U.S. Bank National Association acted alone (e.g., in pursuing the postforeclosure summary process action).
 The following is but a brief overview of HAMP. For a thorough and detailed presentation of “background information on the HAMP program,” see Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556-557 (7th Cir. 2012).
 Only one of those mortgage loans is at issue here.
 General Laws c. 244, § 35A, has gone through various iterations. As applicable here, it provided for a ninety-day right to cure: “Any mortgagor of residential real property located in the commonwealth . . . shall have a 90 day right to cure a default of a required payment as provided in such residential mortgage or note secured by such residential real property by full payment of all amounts that are due without acceleration of the maturity of the unpaid balance of such mortgage. . . . The mortgagee . . . shall not accelerate maturity of the unpaid balance of such mortgage obligation or otherwise enforce the mortgage because of a default consisting of the mortgagor’s failure to make any such payment . . . by any method authorized by this chapter or any other law until at least 90 days after the date a written notice is given by the mortgagee to the mortgagor.” G. L. c. 244, § 35A(a) & (b), inserted by St. 2007, c. 206, § 11 (effective May 1, 2008).
 Additional counts for declaratory relief based on U.S. Bank’s standing to foreclose and for equitable production of the original note, which were dismissed at the Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), stage, are not before us on appeal.
 The order allowing the motion to dismiss the appeal does not reflect the basis for the dismissal of the summary process appeal. Counsel for the defendants informed this court at oral argument that the appeal was dismissed for failure to pay an appeal bond. The defendants’ supplemental memorandum in support of their motion to dismiss Santos’s complaint in this case states that the summary process appeal was dismissed for failure to prosecute.
 “The majority opinion in Schumacher stated that the concurring opinion ‘accurately reflects the practical consequences of our decision today in conjunction with our decision in Bank of Am., N.A. v. Rosa, [466 Mass. 613 (2013)].’ Schumacher, supra at 429 n.12. Thus, the passage from the concurring opinion quoted in the text reflects the unanimous view of the court.” Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 501 n.8 (2014).
 As we clarified in Haskins: “The fundamental unfairness standard discussed in Schumacher applies when a § 35A violation is raised in a postforeclosure summary process action, instead of properly in a preforeclosure equity action.” 86 Mass. App. Ct. at 637 n.11, citing Schumacher, 467 Mass. at 433 (Gants, J., concurring).
 See Wigod, 673 F.3d at 559 n.4 (“[c]ourts have uniformly rejected” claims asserting rights arising under HAMP itself “because HAMP does not create a private federal right of action for borrowers against servicers”).
 See Wigod, 673 F.3d at 559 n.4 (most but not all courts have held “that borrowers were not intended third-party beneficiaries of the SPAs”) (collecting cases).
 Santos cites Speleos v. BAC Home Loans Servicing, L.P., 755 F. Supp. 2d 304, 311 (D. Mass. 2010), where the court found that “a plausible negligence claim” had been stated for the lender’s failure to comply with HAMP even though HAMP does not include a private right of action. However, Speleos was decided prior to the First Circuit’s opinion in MacKenzie.
 Although Santos appears to rely on the judge’s third-party beneficiary theory as the source of the defendants’ duty in his appellate brief, at oral argument Santos stated that he was not relying on a third-party beneficiary theory. The only other authority Santos relied on in his brief for the source of the defendants’ duty was Speleos v. BAC Home Loans Servicing, L.P., 755 F. Supp. 2d 304, 311 (D. Mass. 2010), which is a case whose holding has essentially been overruled by the First Circuit. See note 13, supra. At oral argument, Santos for the first time claimed that he was relying on the duty of good faith and fair dealing, that this is a “negligence contract matter,” and that the defendants voluntarily assumed a duty. We do not address arguments raised for the first time at oral argument. See Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 50 n.7 (1998); Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
 Santos has never argued that his mortgage includes any modification requirement.
 To the extent it represents an actionable contract of its own, a point on which we express no opinion, Santos has not alleged any breach of the implied covenant of good faith and fair dealing under the TPP.
 That Santos cannot look to a private right of action, third-party beneficiary principles, or common-law negligence does not necessarily mean that borrowers are completely without a vehicle by which to seek relief for alleged HAMP violations.
As the defendants acknowledged at oral argument, some courts have allowed claims under G. L. c. 93A grounded in alleged HAMP violations to proceed beyond the rule 12(b)(6) stage. See, e.g., Rosa, 466 Mass. at 616, 625 (holding that Housing Court had jurisdiction to hear 93A claim based on HAMP violations in postforeclosure summary process action but not passing on viability of claim itself); Markle, 844 F. Supp. 2d at 185-186 (“Other courts in this district have also concluded that the absence of a private right to enforce HAMP does not automatically preclude chapter 93A claims predicated on the failure to comply with HAMP obligations”) (collecting cases); Morris v. BAC Home Loans Servicing, L.P., 775 F. Supp. 2d 255, 256 (D. Mass. 2011) (“HAMP violations can give rise to a viable 93A claim if the activity would be independently actionable under Chapter 93A as unfair and deceptive”). Cf. Wigod, 673 F.3d at 575 (reversing dismissal of claim under Illinois Consumer Fraud and Deceptive Business Practices Act).
Courts have also recognized potential breach of contract claims arising from the HAMP TPP. See, e.g., Wigod, 673 F.3d at 566; Young, 717 F.3d at 235; Markle, 844 F. Supp. 2d at 182-183 (collecting cases).
Where Santos has not raised claims alleging a breach of contract with respect to the TPP or a violation of c. 93A, we do not address their hypothetical viability.


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In this part of the site we publish details of legal judgments concerning rail transport and related areas of law, statements from public authorities and legal advice from the CIT General Secretariat on the practical legal issues that arise in daily life.
Select a category (delays, accidents, etc.) to get access to the corresponding articles.
In accordance with Articles 36 to 43 CIV, passengers are entitled to compensation for any delay in the delivery of their registered luggage. How much does that compensation amount to for a bicycle delivered two days late? Who should pay the compensation?
5.6 SDR (=approximately € 6.40) if he is not able to prove such loss.
The compensation does not have to be paid in the event of force majeure or fault of the customer.
The passenger may claim compensation from the first or the last carrier or from the carrier providing carriage when the delay occurred. In this particular case, action may be taken against either carrier, SBB and ÖBB.
The principles for sharing out compensation for delay to registered baggage between railway undertakings are no longer covered by multi-national agreements because registered luggage for international journeys has become so rare. Carriers providing the service should therefore provide for sharing out compensation in their contracts for working together.
In what circumstances do passengers have the right to meals and refreshments?
Article 18 § 2 of Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations (PRR) provides that “passengers shall also be offered free of charge meals and refreshments in reasonable relation to the waiting time, if they are available on the train or in the station, or can reasonably be supplied”. Do passengers who miss their connections because the first train was ten minutes late and who thus arrive sixty minutes late at their final destination because they take the next train, have a right to refreshments?
The right to meals and refreshments comes within the meaning of “standardised and immediate measures”. The European Court of Justice distinguished these from individual compensation dependent on the circumstances of the delay or cancellation of the transport service in its judgment on the IATA case (C-344/04). On the basis of this precedent, the CIT made a clear distinction in points 9 and 10 of the GCC-CIV/PRR between Article 18 PRR which provides for a series of collective actions (information on delays, distribution of meals and refreshments, organisation of accommodation, organisation of alternative transport) and Article 17 PRR which provides a right to compensation of 25 or 50% of the fare in the event of a delayed arrival and Article 32 CIV which provides a right to a hotel in the event of the last connection of the day being missed.
Article 18 PRR applies in the event of delays to trains on arrival or departure in excess of sixty minutes, whatever the cause of delay. By contrast, Article 17 PRR applies in the event of a delay to a passenger at the destination shown on his contract if the cause of the delay is attributable to the carrier.
In consequence, passengers who miss their connection because of a delay of ten minutes do not have a right to meals or refreshments. It is only if the train has a significant delay, in excess of sixty minutes, that passengers may claim refreshments or a meal. Distribution of refreshments is not on an individual basis; indeed it can hardly be individual for wholly practical reasons. In practice, assistance is provided in the train itself or in the station if the train is cancelled. The fact that passengers may arrive at their final destination with a delay of ten minutes or three hours isn’t taken into account at that stage. It may be that passengers affected by the delay to a train have a connection for a TGV two hours later (very common in Paris, for example) and in the end have no delay whatever at their final destination. Those passengers nevertheless receive assistance on their first train. Transport undertakings may not take individual delays into account at that stage. Individual delays are handled by undertakings’ customer service departments when passengers make claims.
Returning from their skiing holiday in Austria, two passengers entrusted their skis to ÖBB to send to Switzerland. To begin with the skis were lost in Austria; after forty days they were found and sent on to their destination. During this period, the passengers hired new skis at a cost of around €1 000. To what compensation are the passengers entitled?
In accordance with Article 40 CIV, if registered luggage is not delivered within the fourteen days which follow the expected date of delivery, it may be considered to be lost. In that case the passenger will receive compensation equal to the value of the loss proven up to a maximum of 1 200 special drawing rights (SDR), equivalent to €1 344 (1), or if the value of the loss is not proven, compensation of SDR 300 (€336) per missing item.
If the luggage is recovered within a year, the carrier must notify the passenger and offer to deliver his luggage. In accordance with Article 43 CIV, the passenger has thirty days in which to accept delivery and return the compensation received for the loss. Nevertheless, the passenger is entitled to compensation for delayed delivery. This amounts to SDR 14 per day for up to a maximum of fourteen days, this thus is a maximum of SDR 196 (€220) per item.
In the case in point, the passengers are entitled to €440 for the two pairs of skis delivered late. On the other hand however, they are not entitled to compensation for the hire charges for new skis during the forty days of delay. The CIV Uniform Rules in fact cover liability for registered luggage exhaustively.
They do not leave any scope for the application of national law in contrast to the provisions for liability for personal injury or liability for delay. For the latter two, Articles 29 and 32 § 3 CIV refer specifically to national law for loss and damage not covered by the CIV Uniform Rules.
(1) DTS 1 = € 1.12 (rate on 30 May 2011 according to www.imf.org ).
Who handles claims from passengers for a missed flight?
A Danish passenger who was travelling by train to a German airport missed his flight to the United States because of a fault on the train. Which railway undertaking (DSB or DB) should handle his claim and, as appropriate, pay compensation?
Under Article 55 § 2 CIV, passengers may make claims to the first or last carrier or the carrier having performed the part of carriage on which the event giving rise to the proceedings occurred. In addition he may bring an action against these same carriers. The law of forum will determine the extent of his right to be compensated for the fare for the missed flight.
The carriers in question may agree amongst themselves who will handle claims, pay compensation to passengers and bear the costs. In principle, members of the CIT settle these issues in accordance with the AIV (Agreement concerning the Relationships between Carriers in respect of International Passenger Traffic by Rail). However, the AIV does not currently cover the issue of which undertaking should handle a claim from a passenger who has missed his flight because an international train has been delayed. In fact, the AIV only covers those heads of liability explicitly specified by the CIV Uniform Rules and by the PRR. It is difficult to imagine international standardisation of those heads of liability which arise solely from national law (principally compensation for missed flights). Railway undertakings therefore need to make any agreements that are necessary.
In the absence of such agreements, Article 62 § 1 CIV covers the allocation of compensation paid under the CIV Uniform Rules. For compensation paid under the PRR or national law, any allocation between the carriers will depend on the national law applicable.
Loss of hand luggage – when is the carrier responsible under the CIV UR?
When travelling by train, sometimes, personal belongings can get stolen. Article 15 CIV UR explicitly recognises the responsibility of passengers to supervise their hand luggage. But what if a representative of the train staff asks a passenger to put his suitcase in a special space designated for hand luggage, which does not fit under the seat or on the shelf above the seat? Does liability shift in this case? In its recent decision the Highest Court of Austria (“Oberster Gerichtshof”) clarified the status of responsibility for the hand luggage on board of a train.
In the case 1Ob231/15z the Highest Court of Austria dealt with a claim by a passenger travelling from Budapest to Salzburg, whose luggage was stolen while stored in a special luggage space, which was not well visible from the passenger’s seat. The passenger claimed damages in the amount of 7’600 EUR due to the fact that in light of the indication by the train staff to keep the suitcase in the storage space – the obligation of supervision passed from the passenger to the carrier and its staff.
The Highest Court of Austria did not share the passenger’s arguments and reminded in its decision of the fact, that it is a right of the passenger to carry hand luggage free of charge in a coach in spaces specifically designated for this purpose. Therefore, the indication by the train staff was just a reminder of this obligation of the passenger. Further, the court could not find any other fact in the case that would possibly suggest that the stolen piece of hand luggage was stored in a special compartment as registered luggage, where the passenger`s obligation of supervision would pass to the carrier and its staff. This is also in line with Article 36 § 1 CIV, according to which, the carrier is liable for loss or damage to the registered luggage between the time of taking over by the carrier and the time of delivery. Notably, the court based its decision on the Rail Transport Act (“Eisenbahnbeförderungsgesetz”) implementing the CIV UR.
The CIV UR, apart from recognizing the passengers’ obligation to supervise their hand luggage in Article 15, provides for two exclusive conditions when the liability for the loss or damage to the hand luggage shifts to the carrier: (i) when damage to, or loss of the hand luggage is directly linked to the incident of death of, or personal injury to the passenger; or (ii) where such loss or damage to the hand luggage is caused by the fault of the carrier (see Article 33 CIV UR). Thus, unless the fault of the carrier is given, it is for the passenger to take due care of his hand luggage while travelling by train.
A passenger from Paris fell when she left her train in Marseille St Charles. She took legal action against SNCF, claiming some €10,000 but the claim was disallowed by the Marseille District Court on the grounds of Article 26 of Annex 1 to the PRR. In effect, the court recognised passengers being at fault as grounds for carriers by rail to be relieved of liability.
This was the first application of Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations (PRR) in France. The judgment is nevertheless not yet final. Other cases in which French judges have decided to apply French law rather than the PRR are still outstanding (see our position on this subject in CIT Info 1/2014, page 3).
In this particular case, the lady travelled by TGV from Paris to Marseille on 15 December 2009. When she arrived in Marseille she was unfortunately injured by falling into the space between the train and the platform. The emergency services helped her out shortly afterwards without serious injury.
The court allowed Article 11 PRR to be applied to this case; Article 11 refers to Article 26 CIV which is attached as an annex. The court underlined the principal of the carrier being liable for passengers leaving trains and the potential grounds for relief, in particular, the passenger being at fault. In this case it held that the passenger had slipped on the running board for reasons which are not understood (no reason for the running board being particularly slippery was mentioned). The court therefore held that the cause of the injury was therefore a momentary lack of attention or awkwardness on the part of the passenger and that SNCF was therefore not liable.
Railway undertakings operate several international bus and coach services, including services between Poland and Lithuania and between Germany and the Czech Republic. Readers may wonder if the CIV Uniform Rules or the PRR apply to these services. In principle, no. Nevertheless, despite that, in practice the undertakings may choose to apply them.
In principle, the CIV Uniform Rules apply to contracts for international rail-road carriage provided the carriage by road remains restricted to domestic carriage within a single state. In addition, the PRR only applies to rail transport services. International carriage by road is in fact subject to different legislation, either national law or the Convention on the Contract for the International Carriage of Passengers and Luggage by Road (CVR). The CVR was signed in Geneva on 1 March 1973 and eight European states are party to it (see the list on www. unece.org/trans/conventn/legalinst_28_OLIRT_CVR.html).
5. the place of destination is situated.
An international convention, such as the CIV Uniform Rules, may likewise be designated as the law applicable to the contract so that an international journey by road and rail can be subject to the same law throughout the journey. This provides greater legal certainty for both railway undertakings and passengers.
In any case, the choice of the law applicable must be made quite explicitly. It is recommended that undertakings indicate the legal regime on the ticket issued to the passenger in legible and comprehensible text.
A CIT member pointed out that Article 61 CIV provides that the carrier who has collected a carriage charge must pay to the carriers concerned their respective shares of such a charge. Their question is: does this article also apply to substitute carriers? Are other remuneration models possible for substitute carriers?
Article 61 CIV provides that “Any carrier who has collected or ought to have collected a carriage charge must pay to the carriers concerned their respective shares of such a charge. The methods of payment shall be fixed by agreement between the carriers.” This article only uses the generic term “carrier”, which is defined in Article 3 a) CIV as the contractual or successive carrier. The articles of the CIV that also concern the “substitute carrier”, defined in Article 3 b) CIV, explicitly refer to the substitute carrier. This is the case for Articles 26 § 5 and 39 CIV, for example.
In conclusion, Article 61 CIV does not apply to the substitute carrier. The principal carrier and the substitute carrier are therefore free to agree on any type of remuneration for the carriage performed.

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Lang Wiseman is on a temporary leave of absence while he serves as Deputy to the Governor and Chief Counsel to the Governor. He is not presently involved in the operations of the firm.
Prior to founding Wiseman Bray PLLC, Lang served as Counsel to the United States Senate Governmental Affairs Committee. He previously served as a Law Clerk to Judge Harry Wellford of the Sixth Circuit Court of Appeals.
Lang graduated with honors from the Harvard Law School after attending the University of Tennessee on a basketball scholarship, where he finished as the 24th leading scorer in UT history (1,156 points). He also graduated with a perfect 4.0 GPA and was the the Top Graduate in the College of Business.
Attorney, Baker Donelson Bearman & Caldwell, P.C.
Seven-figure confidential settlement of negligent security claim against an apartment complex in connection with a criminal shooting incident resulting in catastrophic injuries.
Successful, seven-figure confidential settlement of cyber fraud insurance coverage and bad faith claim.
Representing First Horizon National Corporation in multiple ongoing insurance recovery litigation matters involving bankers professional liability and D&O coverages for claims arising out of the 2008 credit crisis and other financial-related litigation.
Davis v. Johnstone Group, Inc., 2016 WL 908902 (Tenn. Ct. App. 2016) (Court of Appeals affirmed declaratory judgment for employee who challenged a non-compete provision of an employment agreement).
Molnar v. Shelby Co. Bd. of Educ., 2014 WL 7335331 (W.D. Tenn. Dec. 19, 2014) (remanding action to state court after finding defendants improperly removed case to federal court) (improper appeal likewise dismissed).
Significant experience defending all aspects of Tennessee Governmental Tort Liability Act claims against municipal and governmental entities, and public utilities.
Confidential settlement achieved in connection with abuse of a mentally retarded adult while residing in a group home environment.
Successful prosecution and $1.8 million settlement of construction site injury claim utilizing a little-used exception allowing pursuit of a separate tort claim against fellow subcontractor despite vigorous denial and defense by the subcontractor’s insurance company.
First Horizon Nat’l Corp. v. Certain Underwriters at Lloyd’s, et al., 2014 WL 1331052 (W.D. Tenn. Mar. 28, 2014) (granting partial motion for judgment on the pleadings and holding that “insolvency exclusion” asserted by insurers does not bar insurance coverage).
Advising clients (debtors and creditors) in connection with the orderly liquidation of assets/collateral, including litigation, negotiation, and compromise of lender liability claims.
Successful, confidential settlement achieved against national pharmacy chain in connection with mis-filled prescription.
City of Millington, et al. v. Shelby County Election Commission, Shelby Co. Chancery Court Case No. 12-1340 (successful election contest to overturn referendum defeat, and affirmatively declare passage of the referendum) (Oct. 9, 2012).
Successful confidential settlement achieved in wrongful death trucking accident claim.
First Horizon Nat’l Corp. v. Certain Underwriters at Lloyd’s, et al., 2012 WL 3991254 (W.D. Tenn. Sept. 11, 2012) (denying motion to dismiss insurance bad faith claim, and allowing amendment of the complaint).
Ferguson v. Bredesen, et al., Fayette Co. Chancery Court Case No. 14,876 (Jan. 14, 2010) (successful election contest voiding the Town of Oakland mayoral race).
Successful, confidential settlement of invasion of privacy claim against national retail chain.
Jacocks v. Memphis Light, Gas & Water, 2008 WL 46113570 (Tenn. Ct. App. 2008) (reversing the trial court, holding no evidence to support finding of driver negligence).
Terry Roland v. Ophelia Ford, Tennessee State Senate (historic, successful election contest and vote of the Tennessee State Senate to void the election of a member) (Jan. 17, 2006).

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