Why the Biden Administration Was Right Earlier This Week to Change Course in the Obamacare Challenge Pending Before the Court

VIKRAM DAVID AMAR

Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.

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U.S. Bank, N.A. v. White Horse Estates Homeowners Ass'n

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-17033

Opinion Date: February 8, 2021

Judge: Susan Graber

Areas of Law: Banking, Real Estate & Property Law

The Ninth Circuit affirmed the district courts' grants of summary judgment in favor of the HOA in an action brought by the Bank, seeking to set aside the HOA's foreclosure sale of real property in Nevada. The district court held that, because the mortgage savings clause in the applicable covenants, conditions, and restrictions (CC&Rs) did not affect the sale, the sale could not be set aside. Therefore, title vested with SFR Investments, the purchaser at the HOA sale. The panel predicted that the Nevada Supreme Court would adhere to its unpublished decisions, and hold that a mortgage-savings clause, by itself, did not constitute unfairness that affects a sale. The panel held that the clause was void as a matter of Nevada law, because it plainly conflicted with Nev. Rev. Stat. 116.3116(2), which required liens for unpaid assessments to have superpriority status, and Nev. Rev. Stat. 116.1104, which provided that the priorities cannot be modified by agreement. The panel also held that the mortgage-savings clause was void under the terms of the CC&Rs themselves. The panel explained that the Bank did not introduce any evidence whatsoever in this case that the mortgage-savings clause affected this sale. The panel rejected the Bank's remaining arguments and concluded that no unfairness arose from the HOA's processing of payments. Finally, the notice at issue did not violate due process.