...May 8, 1991. (Approx. 19 pages) [pic] Lien on real property created by CERCLA when Environmental Protection Agency (EPA) determines that property owners may be liable for cleanup costs amounts to deprivation of a significant property interest within meaning of the due process clause. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, § 107(l ), as amended, 42 U.S.C.A. § 9607(l ); U.S.C.A. Const.Amend. 5. Absence of notice and hearing may be justified by exigent circumstances. U.S.C.A. Const.Amend. 5. 92k251.5 k. Procedural Due Process in General. Most Cited Cases Constitution allows the process due to be tailored to fit realities of the situation. U.S.C.A. Const.Amend. 5. *1510 Lynn Wright, with whom Robin F. Price and Edwards and Angell, New York City, were on supplemental brief, for plaintiffs, appellants. George W. Van Cleve, Deputy Asst. Atty. Gen., with whom Barry Hartman, Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., George B. Henderson, II, Asst. U.S. Atty., Boston, Mass., Stephen L. Samuels, Steve C. Gold, Jacques B. Gelin, Attys., Dept. of Justice, Charles Openschowski, Office of Gen. Counsel, E.P.A. and Luis Rodriguez, Asst. Regional Counsel, E.P.A., Washington, D.C., were on supplemental brief, for defendants, appellees. OPINION EN BANC TORRUELLA, Circuit Judge. After removing hazardous substances from property belonging to the Reardons, EPA filed a notice of lien on the property for the amount spent. See...
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...Ad Valorem Taxes-is a tax based on the value of real estate or personal property. It is typically imposed at the time of a transaction, as in the case of a sales tax or value-added tax (VAT). Assessment-the evaluation or estimation of the nature, quality, or ability of someone or something. Assignment of Rents Clause- is a provision in a deed of trust or mortgage. Bearer- a person who presents a check or other order to pay money. Bona Fide Purchaser for Value- referred to more completely as a bona fide purchaser for value without notice – is a term used in the law of real property and personal property to refer to an innocent party who purchases property without notice of any other party's claim to the title of that property. Broker Lien- a right to property or payment that a broker has if the buyer does not pay the money owed to the broker for a sale: Collateral- something pledged as security for repayment of a loan, to be forfeited in the event of a default. Contractor- a person or company that undertakes a contract to provide materials or labor to perform a service or do a job. Default Clause- a failure to act, esp. a failure to meet a financial obligation or to appear in a court of law at a time specified Deficiency Judgment- is an unsecured money judgment against a borrower whose mortgage foreclosure sale did not produce sufficient funds to pay the underlying promissory note, or loan, in full. Disinterested Intelligent Housekeepers- Due on Demand Clause- is...
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...control of the partnership. Eight months later, Somers and Robertson discovered that McGowan had not been paying the suppliers. They removed McGowan from the partnership and took over the project. The suppliers sued the partnership to recover the money owed them. The partnership assets were not sufficient to pay all their claims. Who is liable to the suppliers? Procedure The Chancellor held that the affairs of Advance and Vermont Place were so merged that they had become one entity. He presented the following: I. That Pat McGowan, Advance Development Corporation and Vermont Place Properties partnership so merged their affairs to the extent that they were one and the same person or entity when dealing with the lien holders in this action. II. That the lien holders are entitled to personal judgments against Advance Realty Corporation and Pat McGowan and his wife for any deficiency owing after the property is sold and the proceeds distributed. III. That it would be inequitable and unfair to hold Brent Roberson, Val Somers and their wives personally liable for all the deficiency, if any, after the property is sold and the proceeds...
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...debt is satisfied. Equitable title remains in borrower. When mortgage is paid off, lender loses legal title. b. Significance: With legal title, lender has superior claim to the rents over anybody else’s interest that arises later. The lender has the right to take possession upon foreclosure, and doesn’t need ancillary remedies. 2) Lien Theory of Mortgages (restatement) a. Mortgagee retains legal and equitable title to the land when a mortgage is executed. Lender has a lien. The lender has no claim on possession or rents (unless the borrower mortgaged the rents). 3) Intermediate Theory a. Lien theory until default and title theory thereafter. As a practical matter, these states are really title theory states because nothing happens until default anyways in a title theory state. Ancillary Remedies (available to lender before foreclosure) 1) Mortgagee taking possession a. Takes possession & manages property; includes collecting rents & profits b. Lender must use legal process & cannot use self-help, even if so stated in mortgage or contract. c. Not available in lien theory states, unless: i. MR abandons property (public policy) ii. Consent of MR iii. Result of Good faith invalid foreclosure d. Duties of Mortgagee in possession i. Treated as land owner and is required to maintain and upkeep land 1. Including affirmative repairs ...
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...and in many countries it is still treated as such. Thus, this paper produce topics of a Maritime Liens In Singapore. This paper is designed to give an introductory survey of a Maritime lien in tha law of Singapore. Only an outline of the basic principle is attempted and, where necessary, the problem areas highlighted. No In-depth study is made that would be beyond the intended scope. Table of Contents Abstract 1 Table of Contents 2 Introduction 3 Defination of Maritime Lien 3 Priority of Claims 5 Conclusion 6 References 7 Introduction The Maritime lien is an unique creature in maritime law. While its historical origin is shrouded in some obscurity, its juridical nature is fairly well settled. In essence, it is an encumbrance or change over a ship or other like cargo and freight, which accrues from the moment the under lying claims giving rise to it attaches, travels secretively with the res (except one brought about the judicial) and is carried into effect by an action in rem. A party entitled to a maritime lien is not only to utilise the action in rem to give effect to it, but is also accorded higher priority vis-à-vis other maritime claimant and so enjoys he better chance of having its claim satisfied when proceed of sale of the vessel are insufficient to meet all the claims against the res. A maritime lien remains indestructible despite any change of ownership except one brought about by the judicial...
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...the property is located. Once recorded, it secures an interest in, or lien against, the property. In title theory states, a mortgage is used and it conveys ownership to the lender. A clause in the mortgage provides that title reverts back to the borrower when the loan is paid. In lien theory states, the mortgage creates a lien only on the property and the title remains with the borrower. The lien is removed when all the payments have been made. With a Deed of Trust there are three parties involved; the Trustor (borrower), the Beneficiary (lender or note holder), and the Trustee (third party holding title to the property, normally a title company or attorney). With a mortgage document, there are only two parties involved, the borrower and the lender. With a Deed of Trust, the borrower conveys title to a trustee who will hold title to the property for the benefit of the lender. The title remains in trust until the loan is paid. Certain language is vital in a security instrument. When reviewing, look for the following terms: Due on Sale Clause: This clause allows the (note holder, lender, etc.) to demand immediate payment of the note if the property is sold without their written consent. The purpose of the due on sale clause is to prevent an assumption of the debt by a higher-risk borrower on the note. Most investors will insist upon this clause being in the security instrument. Charges; Liens: This section requires the borrower to pay all taxes, assessments, charges...
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...LAWS – BANKING Various Laws Affecting Bankers 1. RBI Act 1934 2. Banking Regulation Act 1949 3. Negotiable Instrument Act 1881 4. Indian Contract Act 1872 5. Indian Partnership Act 1932 6. The Companies Act 1956 7. Consumer Protection Act 1986 8. Banking Ombudsman Act 2006 9. Transfer of property Act 1882 10. Foreign Exchange Management Act 1999 11. Indian Stamp Act 1899 12. Code of Civil Procedure 1908 13. Banker’s book Evidence Act 1891 14. Information Technology Act 2000 15. Right to Information Act 2005 16. Recovery of Debt Due to Banks And Financial Institutions Act 1993 (DRT Act) 17. Securitisation & Reconstruction of Financial Assets and Enforcement of Security interest Act 2002 (SARFAESI Act 2002) Indian Contract Act 1872 Who is competent to contract – Sec 11 Every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind and is not disqualified from contracting by any law to which he is a Subject A minor is a person who has not attained majority. According to Sec 3 of Indian Majority Act 1875, a minor is a person who has not completed 18 years of age. Where a guardian has been appointed by court (for minor’s person or property or both) , the minor attains majority on completion of 21 years. A contract with a minor is void ab-initio (Right from inception) ...
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...perfecting the security interest in the accounts receivable, a UCC-1 has to be filed with the state. This then gives all of the creditors a notice that the security interest has indeed been perfected or even attached if there wasn’t any security interest before. This also aids that an additional creditor who has secured debt with a security arrangement can and will not be before First Savings Bank. Without a financing statement, First Saving Bank can be susceptible to be second to a subsequent secure creditor, or even a lien holder. Of course the loan is secured by the security agreement, but the agreement is not effective against secured creditors. Hypothetically speaking, First Savings Bank can take the collateral if there was a default, but no bank will really do the deal without having and filing a financing statement to keep on record. There are some risks of not filing a financing statement. With that, there are plenty of host of creditors, both federal and state tax liens and obviously other secured creditors. In this situation, there are creditors that can come in and be over First Savings Bank. The reason being is because there was no financing statement that was filed. If MGI had...
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...payment from the Buyer and title transfer to take place within days. Seller allows the Buyer days to have the Vehicle inspected by an independent mechanic, and agrees to cancel the sale if the inspection is unsatisfactory to the Buyer. Seller certifies to the best of the Seller's knowledge that the odometer reading listed in the vehicle description above reflects the actual mileage of the original Vehicle engine. The Vehicle's odometer was not altered, set back, or disconnected while in the Seller's possession, and the Seller has no knowledge of anyone doing so. Seller warrants to Buyer that Seller has good and marketable title to said property, full authority to sell and transfer said property, and that said property is sold free of all liens, encumbrances, liabilities, and adverse claims of every nature and description whatsoever. Seller has no knowledge of any hidden defects in and to the Vehicle, and believes to the best of the Seller's knowledge that the Vehicle being sold is in good operating condition. Said Vehicle is otherwise sold in “as is” condition and where currently located. Seller allows up to 30 days for certification of sale to buyer, change of ownership, full check by mechanic of choice in city of residence, and warrants to cover vehicle related miscellaneous actions all required after the purchase of a used vehicle. Date signed: | Seller: | Buyer: | In the...
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...Maritime Liens and the Conflict of Law - General Shipping and Regulatory Maritime Law Index 1. Purpose and plan of the essay page 3 2. Introduction 2.1 Origins of maritime liens page 3 2.2 Maritime liens page 3 3. Conflict of law page 5 4. The United Kingdom page 6 5. The United States page 8 6. Conclusion page 10 1. The purpose and plan of this essay I will start this essay with a first review of the background of maritime liens and their definition. After this, I will examine why there exist conflicts of law in maritime law. My purpose of this essay is to compare two states that are very different in their domestic maritime law in respect of maritime liens and the differences in recognizing foreign maritime liens. I have chosen to compare the domestic law in the United Kingdom with the United States because I feel that they are managing conflicts of law very differently from one another and I want to get a deeper knowledge in these states law. The American court recognizes foreign maritime liens while the United Kingdom do not; they apply the lex fori (i.e. their own law). This had caused a huge uncertainty in the right of the international ship suppliers. Because the states is so in-cohesive in this area of law I thought it would be interesting to compare these and see how they handle conflicts of law. I will bring out the weaknesses in the different systems and also the positive things. Finally, after this comparison I will...
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...MARITIME LIENS IN THE CONFLICT OF LAWS (final version published in J.A.R. Nafziger & Symeon C. Symeonides, eds., Law and Justice in a Multistate World: Essays in Honor of Arthur T. von Mehren, Transnational Publishers Inc., Ardsley, N. Y. 2002 at pp. 439-457) Prof. William Tetley, Q.C.* INDEX I. II. Preface - Homage to Arthur T. von Mehren Introduction - Maritime Liens 1) 2) III. Civilian origins of maritime liens Characteristics of maritime liens Maritime Liens as Sources of Conflicts of Law 1) 2) 3) The differing scope of "maritime liens" Other maritime claims Different ranking of maritime liens and claims IV. V. VI. VII. The United Kingdom - The Lex Fori The United States - The Proper Law Canada Some Other Jurisdictions 1) 2) 3) 4) 5) China Israel Greece Sweden The Netherlands VIII. The Rome Convention 1980 IX. * Conclusion Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Gaudreau O'Connor of Montreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L., in the preparation and correction of the text. -2- MARITIME LIENS IN THE CONFLICT OF LAWS Prof. William Tetley, Q.C.* I. Preface - Homage to Arthur T. von Mehren I am honoured to contribute to Prof. Arthur von Mehren's festschrift. On occasion, I have leaned upon and even borrowed (with great benefit and I hope with complete citation), his writings and, for example, have...
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...Question 1. Wether OB has taken on and breached a fiduciary duty to either, or both of SB and MPL, ultimately depends on the nature of its relationship at any given time with the parties in question. For this I consider the situation with each of the counterparties to OB individually, and throughout the various stages of the financing deal. Relationship with MPL A fiduciary relationship is one of confidence and trust whereby one party assumes particular obligations to act in good faith and not against the interest of another (i.e. counterparty). Fiduciary duty arises automatically when the relationship is one of agent and principal; trustee and beneficiary; director and company; partner and partner; or employer and employee. In its dealings with MPL, OB appears to be primarily engaged in a banker and customer relationship. As this does not fall under any of the categories of relationships specified above, there is no inherent fiduciary relationship. That being said, OB may have assumed a fiduciary capacity under common law, subject to satisfying the conditions arising from the Hospital Products Ltd vs United States Surgical Corporation (1984) 156 CLR 41 case. OB would be a fiduciary to MPL if it can be shown that it was acting in its interest and in a dominant position rendering MPL vulnerable to potential abuse. On the given facts, there is no clear-cut case to suggest that MPL, by virtue of its directors’ expertise, is vulnerable to abuse by the dominant OB. Therefore OB...
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...Storing up Treasures "Do not store up for yourselves treasures on earth, where moth and rust destroy, and where thieves break in and steal.” – Matthew 6:19 Actually, most people do store up their treasures on Earth, so much so in fact, that quite a few people are filling up their own treasure chests by renting out storage space. Self-Storage is an industry in which storage space is rented out to tenants, usually on a monthly basis. The storage space is usually in the form of a room, container or locker. Access to the space is usually secured by the tenant’s own lock and key. Clients include individuals, who usually store household goods, as well as businesses, which use the facilities for storing inventory or archives. As of 2009, there was approximately 2.3 billion square feet of rentable storage space in the US. The first modern self-storage facilities appeared in the US in the 1960s. The self-storage business was meant to provide individuals with space to deal with “life events”: moving, marriage, divorce etc. American workers have always been quite mobile, and the end of the 20th century, with its increasing divorce rates, and rush of transitions to 2nd or 3rd homes, saw a significant increase in the number of life events. However, by the end of the 1990s, demand was growing at a faster rate than explained by these factors. From 2000 to 2005, the number of self-storage facilities almost doubled, with 3000 new facilities built each year. Since the 1990s, demand was increasingly...
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...Offer to Purchase Real Estate I, Ying Hua Wang , referred to herein as BUYER, offers to purchase the following described real estate: Street Address : ________3460 A du Parc_____________ Property Description : ___________________________________________________________ From __Julio_ _________ , referred to herein as SELLER , upon the terms and conditions stated herein. The gross purchase price shall be $ __360,000____(dollars). This offer is conditioned upon BUYER obtaining loan approval at least __ days prior to closing of this transaction, BUYER shall make a mortgage loan application within 10 working days of the acceptance of this offer, and should the BUYER's loan application be denied, the BUYER shall have the option, within 2 business days to rescind this transaction. If BUYER elects to rescind the transaction, BUYER shall receive any deposits made from SELLER. The closing will be held within 30 days of the acceptance of this offer to the SELLER, but in no event in less than 20 days from the notice. The SELLER shall convey to the owner by warranty deed the property herein, and the title thereto shall be merchantable. Within 30 days of acceptance, the SELLER shall provide a binder for title insurance in the principal amount of the purchase price. The title shall be free and clear of any encumbrances other than those, if any, to be assumed by the BUYER at closing. Should any defects be in the title, the SELLER shall have 60...
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...Deeds Wiley and Gemma are neighbors. Wiley’s lot is extremely large, and his present and future use of it will not involve the entire area. Gemma wants to build a single-car garage and driveway along the present lot boundary. Because of ordinances requiring buildings to be set back fifteen feet from an adjoining property line, and because of the placement of her existing structures, Gemma cannot build the garage. Gemma contracts to purchase ten feet of Wiley’s property along their boundary line for $3,000. Wiley is willing to sell but will give Gemma only a quit claim deed, whereas Gemma wants a warranty deed. I will provide a brief summary below of the differences between these deeds as they would affect the rights of the parties if the title to the ten feet of land later proved to be defective. Different types of deeds provide different degrees of protection against defects of title. A warranty deed contains the most promises of title and thus provides the greatest protection for the buyer. A warranty deed includes six covenants, by which the Grantor is the legal owner of the property and has the right to possess the property. The first three covenants are “Present Covenants” and the second three are referred to as “Future Covenants”. (Contracts 101 - Warranty vs. Quitclaim Deeds Retrieved from http://www.pohlshort.com/CM/Publications/Publications35.asp) Present Covenants warranty that Wiley is the legal owner of the property and has the right to possess it, the...
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