Tuesday, March 25, 2008

Mexicans and Mortgage Fraud!

Two separate little legal issues today.

Firstly, there is the just-decided case of Medellin v. Texas, decided March 25th by the Supreme Court of the United States. The Supreme Court held that, despite the International Court of Justice's decision in Case Concerning Avena and Other Mexican Nationals, (which held that based on violations of the Vienna Convention, 51 Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences), President Bush had no authority to order the state courts to reconsider the sentences.

The Vienna Convention was, in 1969, properly ratified as a treaty of the United States, and by virtue of the Supremacy Clause, (article IV, clause 2) of the US Constitution, became law and binding upon the States and Federal Government. In Missouri v. Holland, the Supreme Court ruled that treaties constituted a separate area of federal jurisdiction, and that therefore the Federal government's treaty powers are greater than that of Congress; that is, that a federal treaty may require compliance in areas that Congress may not legislate, and by virtue of the Supremacy Clause, they are to have full effect.

Medellin then claimed that by virtue of the supremacy clause, the Vienna Convention constitutes binding United States law (by which the State courts are bound), and that the decision in Avena constitutes a binding decision with which the States must comply (in much the same way that compliance with the decisions of the Supreme Court occurs.)

However, the Court appears to conclude that the decision in Avena does not constitute binding law, regardless of whether or not the Vienna Convention constitutes binding law, a decision that is, to some extent, based on a distinction between
"...treaties that automatically have effect as domestic law, and those that -while they constitute international law committments- do not by themselves function as binding federal law."
Admittedly, I find the distinction relatively arbitrary, although I do understand how one might come about; for example, the Kyoto Protocol, which (were it ratified, of course) while it might set required targets for signatory states would presumably not be binding domestic law unless a separate law setting targets and methods was passed by Congress (although I admit I am somewhat unclear on Congress's ability to create law that invades the purview of the states where it is doing so to enact a treaty.)

Essentially, the court appears to state that the judgment in Avena does create an obligation on the part of the United States, but that it does not by itself constitute a binding decision upon domestic courts.

Secondly, there is this news item, regarding another incident of a craigslist hoax, and certainly not the first. In short, an individual posted an advertisement on Craigslist that the belongings of the poster's house were free for the taking. Of course, the owner of the property had posted no such ads, and was somewhat surprised, needless to say, by all the visitors making off with his property.

The issues involved are multifold, but I see the issue as bearing an uncanny resemblance to the current spate of mortgage-fraud cases; cases in which a fraud artist goes to a lending institution to issue a charge against a property not his own; he leaves with the money, and the legitimate owners are surprised when the lending institution attempts to foreclose to recoup its loss.

The lending institution, is of course mostly an innocent party; it believed it was correctly issuing the charge and lending the money. The criminal, of course, was the person who fraudulently connected the two groups. However, there is an expectation in the common law that an individual (or group, of course) will perform its due diligence in order to ensure that the consents it receives are valid and legitimate. Where the individual does not, it can be held negligent and responsible. The issue is far more gray where the individual does perform reasonable due diligence and is still blindsided. Of course it is theoretically possible to recover the loss from the fraud artist, who is of course liable, but it practically may be very difficult or impossible.

This leaves everyone in somewhat of a sticky situation....


Anonymous said...

I have read this and am uncertain of what you're attempting to convey.

Anonymous said...

^ Sounds like a bright one.