Congress enacted the PTFA as a temporary measure during the mortgage foreclosure crisis. The PTFA protects tenants who reside in properties that are subject to foreclosure by imposing certain obligations on successors in interest to foreclosed properties. The PTFA requires successors in interest to provide bona fide tenants with 90 days' notice to vacate and to allow bona fide tenants to occupy the premises until the end of their lease term unless certain conditions are met. Protecting Tenants at Foreclosure Act of 2009, Pub.L. No. 111-22, § 702, 123 Stat. 1632, 1661 (codified at 12 U.S.C. § 5220 note (Supp.V.2012)). Wilson v. HSBC Mortg. Services, Inc., ibid.
"[N]othing in the express language of Section 702 contains a provision creating a right of action for violations of the section or establishes any remedy when the section is violated." [Citations omitted.] Wilson v. HSBC Mortg. Services, Inc., ibid.
In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court set forth four factors for evaluating whether a statute implicitly creates a private right of action: (1) whether the plaintiff is "one of the class for whose especial benefit the statute was enacted"; (2) whether there is "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one"; (3) whether it is "consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff"; and (4) whether the cause of action is "one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law." Id. at 78, 95 S.Ct. 2080 (internal quotation marks and citations omitted). The Court has since clarified that these factors are not entitled to equal weight. Touche Ross & Co., 442 U.S. at 575, 99 S.Ct. 2479. The "central inquiry" is whether Congress intended to create a private right of action. Id. "'[U]nless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.'" Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (quoting Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 94, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)). Wilson v. HSBC Mortg. Services, Inc., ibid.
The language of the PTFA does not evince an intent to create a private right of action. "'The question whether Congress ... intended to create a private right of action [is] definitively answered in the negative' where a 'statute by its terms grants no private rights to any identifiable class.'" Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (quoting Touche Ross & Co., 442 U.S. at 576, 99 S.Ct. 2479). "For a statute to create such private rights, its text must be 'phrased in terms of the persons benefited.'" Id. at 284, 122 S.Ct. 2268 (quoting Cannon, 441 U.S. at 692 n. 13, 99 S.Ct. 1946). "Statutes that focus on the person regulated rather than the individuals protected create 'no implication of an intent to confer rights on a particular class of persons.'" Sandoval, 532 U.S. at 289, 121 S.Ct. 1511 (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)). Wilson v. HSBC Mortg. Services, Inc., ibid.
Moreover, the statutory structure does not demonstrate an intent to create a private right of action. Wilson v. HSBC Mortg. Services, Inc., ibid.
The title of the PTFA demonstrates that the Act is meant to protect tenants living in foreclosed properties. However, the Act does so by regulating the conduct of successors in interest to foreclosed properties. The Act provides that "any immediate successor in interest" to a foreclosed property "assume[s] such interest subject to" certain limitations. PTFA § 702. The successor in interest takes the property "subject to ... the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice." Id. The successor in interest also takes the property "subject to ... the rights of any bona fide tenant ... under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease" unless certain conditions are met. Id. Thus, "[t]he entire textual focus of Section 702 is to specify the limitations of the successors in interest's property rights in the types of foreclosed properties that fall under the ambit of Section 702." Gullatt, 2010 WL 4070379, at *4; see also Logan, 722 F.3d at 1171.
THIS CASEBOOK contains a selection of 43 U. S. Court of Appeals decisions that analyze and discuss issues related to mortgage foreclosure. The selection of decisions spans from 2013 to the date of publication.