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decided: October 16, 1989.
EDWARD SCARBOROUGH, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, PATRICIA SCARBOROUGH, AND PATRICIA SCARBOROUGH, IN HER OWN RIGHT, APPELLEES,v.ANDREW L. LEWIS AND JOSEPH L. CASTLE, TRUSTEES FOR READING COMPANY AND CITY OF PHILADELPHIA, APPELLANTS
Appeal from the Order of the Superior Court of Pennsylvania, No. 1053, 1054 Philadelphia 1984, entered on November 28, 1986, insofar as it affirmed the Order of the Court of Common Pleas of Philadelphia County at March Term, 1976, No. 5109, dated March 26, 1985, denying the City of Philadelphia's Motion for Judgment n.o.v.
Nix, C.j., and Larsen, Flaherty, Zappala, Papadakos and Stout, JJ. McDermott, J., did not participate in the consideration or decision of this case. Stout, Former Justice, did not participate in the decision of this case. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.
[ 523 Pa. Page 32]
We granted allowance of appeal to the City of Philadelphia (City) to determine whether Superior Court erred in affirming in part an order of the Court of Common Pleas of Philadelphia County, sitting en banc, insofar as it denied the City's post-trial motion for judgment notwithstanding the verdict.*fn1 Because the City properly preserved the issue of whether it owed a duty to the Appellee, Edward Scarborough, contrary to the Superior Court's holding that the issue was waived, the order of Superior Court is in part reversed and the City's motion for judgment not withstanding the verdict is granted.
The facts underlying this personal injury action are that on June 24, 1974, Edward, then aged nine, was playing
[ 523 Pa. Page 33]
basketball with his friends along Thirteenth Street, a dead end street in the City of Philadelphia. When he took a shot at the basket, the ball ricocheted off of the backboard, rolled to the end of the street and through a chain link fence, which stretched to the adjacent McFerran Street, and down an embankment toward the railroad tracks. Edward climbed through a hole in the fence and down the embankment to recover the ball. He then walked back up the embankment and threw the ball under the fence. Instead of returning to the basketball game, Edward, who heard a train approaching, went back down the embankment to the railroad tracks, which were readily accessible by various other routes. He then, as he had done before, hopped a freight train owned by the Reading Railroad Company. After travelling a short distance he tried to hop off the train; however, his pant leg got caught. In the process of trying to loosen it, he slipped and fell under the wheels of the train. Both of Edward's legs were severed just below his knees.
Appellees, Edward Scarborough and his mother Patricia Scarborough, instituted this action for damages in 1976 against Andrew L. Lewis and Joseph L. Castle, trustees for the Reading Company (hereinafter referred to collectively as Reading). Reading joined the City as an additional defendant on the grounds that it had failed to keep the fence in repair and had thereby breached a duty owed to Edward Scarborough to protect him from the dangerous condition created by the movement of trains on the railroad's property.*fn2
Following a jury trial in April, 1981 before Judge I. Raymond Kremer, a verdict was returned against both Reading and the City in favor of Edward Scarborough in the amount of $3,000,000 and in favor of Patricia Scarborough in the amount of $300,000. Delay damages pursuant to Pa.R.C.P. 238 were added and the verdicts were molded
[ 523 Pa. Page 34]
to the sums of $3,454,500 and $345,400 respectively. Reading and the City both filed post-trial motions and extensive post-trial briefs.*fn3 The post-trial motions were argued and denied.*fn4 On appeal, a Superior Court panel reversed the order of the trial court insofar as it dismissed Reading's motion for judgment n.o.v. As to the City, Superior Court affirmed the trial court's denial of judgment n.o.v., but reversed the denial of a new trial and remanded for that purpose.
On appeal, Reading and the City argued that the Scarboroughs failed to establish a legally cognizable cause of action and that judgment n.o.v. should have been granted. Superior Court in reviewing the record found that the City had failed to present argument in its post-trial brief concerning the source, existence or nature of the duty owed by the City to Edward Scarborough. This finding was based on the fact that the City's post-trial brief addressed only the issue of the existence of a causal connection between Edward's injuries and the City's breach of some unspecified duty. The City's failure to brief the critical duty issue at the close of proceedings, Superior Court concluded, deprived the trial court of both the need and opportunity to address the merits of the City's contention that the Scarboroughs failed to establish a legally cognizable cause of action because, as a matter of law, the City owed no duty to Edward Scarborough. Scarborough v. Lewis, 359 Pa. Super. 57, 62-63, 518 A.2d 563, 566 (1986).
In Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974), we set forth the doctrine of waiver and the underlying policy considerations which are:
[ 523 Pa. Page 35]
First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. [Footnote omitted]. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions. [Footnote omitted].
Id. 457 Pa. at 259, 322 A.2d at 116-117.
The question presented in the City's post-trial brief was as follows: PLAINTIFF FAILED TO PROVE A LEGALLY COGNIZABLE CAUSAL CONNECTION BETWEEN THE CITY'S ALLEGED NEGLIGENCE AND PLAINTIFF'S INJURY, AND JUDGMENT N.O.V. MUST BE ENTERED FOR THE CITY (Emphasis Added). City's Post-Trial Brief p. 8. Examination of the City's post-trial brief reveals that the introduction section sets out at length the City's position that it owed no duty to Edward Scarborough and therefore could not be found negligent. This argument was implicitly incorporated into the question presented for review because, in describing the claim of negligence, the term that was used was alleged negligence, an element of which is duty.
Furthermore, as Judge Wieand noted in his dissent, throughout the trial, the City contended that the law did not impose on it a duty to protect the minor child from dangerous activities being conducted on land owned by another. At the close of the Scarboroughs' case, the City moved for a compulsory non-suit, which was summarily denied by the trial judge. After both parties rested, the City moved for a
[ 523 Pa. Page 36]
directed verdict, which was also denied. The City once again addressed the issue of duty when it submitted points for charge which provided that the City owed no duty to repair defective conditions maintained on property not owned by the City or to protect citizens from dangerous activities conducted on private property owned by others. For these reasons, we find that the issue of duty was implicitly incorporated into the question presented for review and the policy considerations of the waiver doctrine have been satisfied so as to prevent waiver.
Because the City's common law duty argument was properly preserved for review, we now address whether such arguments would afford a basis for the City's contention that it was entitled to judgment n.o.v. As we stated in Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980):
Our standard of review is settled. A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. Steward v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner. Miller v. Checker Cab Co., 465 Pa. 82, 348 A.2d 128 (1975).
Id. 489 Pa. at 351, 414 A.2d at 103. Applying these standards, we have no doubt that Appellees failed to present a legally cognizable cause of action because, as a matter of law, the City owed no duty to Edward.
Appellees argue that where the City undertook to repair a fence in a dangerous area, its failure to maintain the fence created a legal duty under Section 323 of the Restatement (Second) of Torts.*fn5 Section 323 provides as follows:
§ 323. Negligent Performance of Undertaking to Render Services
[ 523 Pa. Page 37]
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
Conversely, the City contends that at common law in Pennsylvania a duty was never imposed on a property owner to those who crossed the owner's land and were subsequently injured by a dangerous condition on the property of another. Malischewski v. Pennsylvania Railroad Co., 356 Pa. 554, 52 A.2d 215 (1947); Magner v. Baptist Church, 174 Pa. 84, 34 A. 456 (1896); Lynch v. National Railroad Passenger Corp., 115 Pa. Commw. 474, 540 A.2d 635 (1988), allocatur granted 521 Pa. 632, 558 A.2d 533 (1989). The City also claims that although the jury was charged as to Section 323(b) of Restatement (Second) of Torts, the trial judge removed Section 323 from the case when he later removed reliance from the Section 323 jury instruction.
Superior Court agreed with the City's contention that the law imposed no duty upon a possessor of adjacent land to erect fencing or provide warnings so as to deter persons from entering a third party's property. However, the court found this argument of no moment in the appeal because the record revealed the trial court agreed with the statement of the law and charged the jury to that effect in accordance with the City's request. Scarborough, 359 Pa. Super. at 65, 518 A.2d at 569. In other words, the jury rejected the aforementioned statement of the law and Section 323 formed the basis of the City's liability.*fn6
[ 523 Pa. Page 38]
The misperception of both Superior Court and Appellees is that Section 323 creates a duty requiring the City to repair the fence. In Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983) we stated that:
This section [323 of Restatement (Second) of Torts] has previously been adopted by this Court as representing an accurate statement of the law. See Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980). It does not, however, change the burden of a plaintiff to establish the underlying elements of an action in negligence nor can it be invoked to create a duty where one does not exist. (Emphasis added).
Id. 501 Pa. at 641-642, 462 A.2d at 684.
For this reason, we must ascertain whether the City's contention that no duty exists is supported as a matter of law.
At common law, one charged with the duty of keeping highways and roadways safe for travel was required to take measures to eradicate or reduce the risks posed by steep cliffs and embankments located upon or in close proximity to a highway or roadway. See Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955); Winegardner v. Springfield Township, 258 Pa. 496, 102 A. 134 (1917) (duty not confined to maintaining the bed of the road but extends to erection of barriers and other devices for guarding unsafe places along the road); and Scott Township v. Montgomery, 95 Pa. 444 (1880).
Case law would appear, at first blush, to have imposed a duty on the City to erect a barrier along the dead end of
[ 523 Pa. Page 39]
Thirteenth Street. However, Balla, Winegardner and Scott Township can be distinguished from the case sub judice by the fact that the duty imposed on a municipality was so as to avoid the danger of vehicles falling from highways or roadways down steep cliffs and embankments. In this case, Edward Scarborough after climbing through the fence and retrieving the basketball on his own volition returned to the railroad tracks to hop a train. This unsupervised activity of a minor child was not the danger sought to be avoided by the creation of a common law duty to erect barriers along a roadway.*fn7
Alternatively, it is well settled that the law imposes no duty upon a possessor of adjacent land to erect fencing or provide warnings so as to deter persons from entering a third party's property on which there exists a dangerous condition not created or maintained by the landowner and over which the landowner has no control. Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa. Commw. 596, 492 A.2d 1204 (1985); Magner v. Baptist Church, supra; Heller v. Consolidated Rail Corporation, 576 F.Supp. 6 (E.D. Pa. 1982), aff'd 720 F.2d 662 (3d Cir. 1983); Cousins v. Yaeger, 394 F.Supp. 595 (E.D.Pa. 1975). Furthermore, it would be incongruous to impose such a duty upon landowners adjacent to a railroad right-of-way when it long has been held that a railroad has no duty to erect fences on its right-of-way to deter trespassers. Dugan v. Pennsylvania Railroad Company, 387 Pa. 25, 127 A.2d 343 (1956); Malischewski v. Pennsylvania Railroad Company, supra. Cousins, 394 F.Supp. at 605. See also Lynch v. National Railroad Passenger Corporation, supra.
We also note that the facts of this case are similar to those found in Malischewski. There, a minor child gained access from a city playground through a gateway in a wire fence to a railroad right-of-way. Once on the right-of-way, the boy saw a loaded coal car detached from a train standing on the tracks. He climbed on to the car and stood on
[ 523 Pa. Page 40]
the coal. The boy's arm came in contact with a live electrical line causing him injury. We found, inter alia, that the defective gateway in the fence was not the proximate cause of the accident. Malischewski, 356 Pa. at 556, 52 A.2d at 216. To find such as a matter of law would not be inappropriate here.
The order of Superior Court, insofar as it affirmed that part of the order of the Court of Common Pleas of Philadelphia County denying the City's motion for judgment n.o.v., is reversed and vacated. Based upon the record, we must grant the City's motion for judgment n.o.v.
Jurisdiction relinquished.
LARSEN, Justice, dissenting.
I strenuously dissent. It is a gross misconstruction of the English language to conclude that appellant, the City of Philadelphia, preserved for appellate review its claim that it owed no duty to appellee, Edward Scarborough, merely by phrasing the issue it did preserve (the issue of causation) in terms of "alleged" negligence. This amounts to no more than a "boilerplate" allegation. We have held that such allegations constitute "a lack of diligence" on the part of counsel, and we consider the issues raised in such fashion to be waived. See In re Estate of Hall, 517 Pa. 115, 137-38, 535 A.2d 47, 58 (1987). The issue of appellant's duty is not raised in appellant's post-trial motions nor is there any argument in appellant's post-trial brief plumbing the depths of the law of this Commonwealth regarding the source, existence or nature of the duty owed by appellant to appellee. Thus, the issue was waived, and the majority of this Court is retreating from our fifteen year clear and wise
[ 523 Pa. Page 41]
pronouncement set forth in Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).
Accordingly, I would affirm the order of Superior Court and would remand the case to the Court of Common Pleas of Philadelphia County for a new trial.
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Mona Lisa
How cute is Mona Lisa?
Her current rating is 4.36 out of 5 with 33 vote(s).
All about Mona Lisa
Pet Tip
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United States District Court, Seventh Circuit
January 2, 2014
JESUS DIAZ, JR. and KAREN DIAZ, Plaintiffs,v.AMERIQUEST MORTGAGE COMPANY, et al., Defendants.
MARVIN E. ASPEN, District Judge.
Plaintiffs Jesus and Karen Diaz ("the Diazes") have filed two motions. In the first motion, the Diazes ask that we request the Judicial Panel on Multidistrict Litigation to remand their case to the United States Bankruptcy Court for the District of Massachusetts, Eastern Division ("Bankruptcy Court"). In the second motion, they ask leave to file a first amended complaint. For the reasons discussed below, we deny both motions.
On April 23, 2007, the Diazes filed an adversary proceeding against Ameriquest Mortgage Company ("Ameriquest") and Deutsche Bank National Trust Company, as Trustee, in the Bankruptcy Court. (Opp'n to Sugg. Rem. at 2.) The Diazes alleged that Ameriquest violated the Truth in Lending Act, 15 U.S.C. § 1601 et. seq. ("TILA"), by failing to provide copies of the notice of right to cancel the transaction. (Sugg. Rem. ¶ 9.) Because they did not receive the copies, the Diazes alleged that they were entitled to rescind the transaction.[1] ( Id. )
On January 30, 2009, the Judicial Panel on Multi-District Litigation ("Panel") issued a conditional transfer order ("CTO") to this court pursuant to 28 U.S.C. § 1407. (Sugg. Rem. ¶ 5.) The Panel determined that the Diazes' TILA claims would benefit from consolidating pretrial proceedings and discovery with other claims against Ameriquest alleging TILA violations. (Opp'n to Sugg. Rem. ¶¶ 5-6.) On May 15, 2013, the Diazes filed a motion to ask that we suggest to the Panel that the case be remanded to the Bankruptcy Court. (Sugg. Rem. ¶ 1.) Finally, on August 2, 2013, the Diazes filed a motion for leave to file its first amended complaint, pursuant to Federal Rule of Civil Procedure 15(a), to clarify that their claim was brought under the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws. Ann. ch. 140D, § 10(a) (West) ("MCCCDA") rather than under TILA. (Mot. Am. at 1.) We address each of these claims separately.
A. Suggestion of Remand to Massachusetts Bankruptcy Court
We first evaluate the motion requesting the Panel to remand the case to the Bankruptcy Court.
The Panel retains the power to remand any case to the transferor court. In re Bridgestone/Firestone, Inc., ATX, ATX II, and Wilderness Tires Prods. Liab. Litig., 128 F.Supp.2d 1196, 1197 (S.D. Ind. 2001). The transferee court may recommend remand before pre-trial proceedings have concluded. J.P.L.M. R. P. 10.1(b). The judge may file a suggestion of remand, indicating "that he perceives his role under Section 1407 to have ended." In re Holiday Magic Sec. and Antitrust Litig., 433 F.Supp. 1125, 1126 (J.P.M.L. 1977) (citing In re Air Crash Disaster Near Dayton, Ohio, 386 F.Supp. 908, 909 (J.P.M.L. 1975)). This decision "generally turns on the question of whether the case will benefit from further coordinated proceedings as part of the MDL." In re Bridgestone/Firestone, Inc., 128 F.Supp.2d at 1197; see also In re Aqua Dots Prods Liab. Litig., No. 08 C 2364, 2011 WL 3325783, at *1 (N.D. Ill. Aug. 2, 2011). Remand is not appropriate if continued consolidation would "eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary." In re Heritage Bonds Litig., 217 F.Supp.2d 1369, 1370 (J.P.M.L. 2002); In re Ameriquest Mortgage Co. Mortgage Lending Practices Litig., MDL No. 1715, 2010 WL 1418399, at *1 (N.D. Ill. Apr. 6, 2010).
The Panel will generally remand a case before pretrial proceedings are completed "only upon a showing of good cause." In re CBS Color Tube Patent Litig., 342 F.Supp. 1403, 1405 (J.P.M.L. 1972). The Diazes contend that discovery in this matter is sufficiently complete for the parties to move forward with a pre-trial conference in the Bankruptcy Court. (Sugg. Rem. ¶ 9.) Additionally, they allege that "there are no allegations of misrepresentation, fraud, or other misconduct" and that "there does not appear to be any benefit from continuing to litigate" in the Northern District of Illinois. ( Id. )
Ameriquest asserts that "discovery remains ongoing." (Opp'n to Sugg. Rem. at 3.) While Ameriquest's discovery has been halted due to scheduling conflicts, they anticipate that once they take the Diazes' depositions, they will require written discovery and other depositions. (Opp'n to Mot. Am. at 3 nn.2, 5.) Even though the Diazes believe their discovery to be complete, "[d]efendants, too, deserve the benefits of coordinated and consolidated pre-trial discovery." In re Aqua Dots Prods Liab. Litig., 2011 WL 3325783, at *2. Ameriquest alleges that coordinated discovery is incomplete and that it intends to file motions for coordinated summary judgment. (Opp'n to Sugg. Rem. at 6-7.) Remand, therefore, "would be nothing more than an abandonment of the Panel's judgment to include the [...] cases in this MDL." In re Bridgestone/Firestone, Inc., 128 F.Supp.2d at 1197. MDL proceedings are maintained in order to encourage "just and efficient conduct." 28 U.S.C. § 1407(a). We find that the MDL still serves this purpose and that remand would be inappropriate at this time. We accept Ameriquest's contentions that coordinated discovery remains outstanding and that it would be left to defend two related claims with similar discovery in different forums if we suggested remand. (Opp'n to Mot. Am. at 3.) For these reasons, we deny the motion for suggestion of remand.
B. Leave to File Amended Complaint
Next, the Diazes move to file a first amended complaint and "clarify[] that [their] claim for rescission is being asserted under the [MCCCDA]." (Mot. Am. at 1.)
As a preliminary matter, Ameriquest contends that Rule 15(a) of Civil Procedure does not apply to this motion because "plaintiffs are seeking dismissal of the only cause of action in their complaint with the replacement of a new cause of action." (Opp'n to Mot. Am. at 3.) Ameriquest argues that Rule 41(a)(2) should govern his action. ( Id. )
Rule 15(a) provides that a party may amend its pleading within twenty-one days of service, or "only by leave of court or by written consent of the adverse party; [and] leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Rule 41 states that "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2). We have discretion to allow an amendment in this case under Rule 15 "as justice so requires" because the motion to amend comes far after the initial twenty-one day period. Similarly, if the action is governed by Rule 41(a)(2), we also have discretion to allow dismissal. In discussing the relationship between these two rules, courts and commentators have agreed that "the same considerations are relevant to dropping the claim regardless of which rule is invoked." 6 Charles Allen Wright et al., Federal Practice and Procedure § 1479 (3d ed. 2012). We concur that "[s]ince the structure of the two rules is similar, and since the district court's discretion is involved when leave of court is required, whether plaintiff's motion is made under Rule 15 or under Rule 41(a)(2), the choice of rules is largely a formal matter." 5 J. Moore, J. Lucas & J. Wicker, Moore's Federal Practice ¶ 41.06-1, at 41-92 (1995); see also Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1364 (Fed. Cir. 2000) ("Rules 41(a)(2) and 15(a) are functionally interchangeable"); Fastener Corp. v. Spotnails, Inc., 291 F.Supp. 974, 976 (N.D. Ill. 1968) ("The Court deems it unnecessary to resolve the alleged ambiguity between rules 15 and 41. Rather, the Court welcomes the simplification of some issues.").
Pertinent factors common to our analysis under both rules include: excessive delay by the movant, undue prejudice to the non-movant, and the movant's motive. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962) (describing the Rule 15 analysis); Marlow v. Winston & Strawn, 19 F.3d 300, 304 (7th Cir. 1994) (describing the Rule 41(a)(2) analysis); Feldman v. Allegheny Int'l, Inc., 850 F.2d 1217, 1225 (7th Cir. 1988); Wells Fargo Bank, N.A. v. Younan Props., Inc., No. 11 C 8701, 2013 WL 251203, at *1 (N.D. Ill. Jan. 23, 2013). With these principles in mind, we turn to the arguments posed by the parties.
The Diazes request that we grant leave to file a first amended complaint in order to clarify that their claim for rescission is being asserted under the MCCCDA rather than under TILA. (Mot. Am. at 1.) The Diazes acknowledge that the claims set forth in the original complaint referenced only TILA, not the MCCCDA. ( Id. at 2.) They now assert that the claims are brought under the MCCCDA. They point out, nonetheless, that their legal theory has not changed, no new facts are pleaded, and they have not previously amended the complaint. ( Id. ) The Diazes thus contend that Ameriquest would suffer no prejudice from this request. ( Id. ) We disagree.
Ameriquest urges that it would be unfairly prejudiced if the TILA claim were replaced by a MCCCDA claim in an amended complaint.[2] (Opp'n to Mot. Am. at 3.) Regardless of whether Rule 15(a) or Rule 41(a)(2) governs this motion, we have discretion to deny it if the defendant would suffer undue prejudice. See Johnson v. Cypress Hill, 641 F.3d 867, 872 (7th Cir. 2011) (citing Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009)); Banks v. Varallo, No. 12 C 9874, 2013 WL 5707248, at *5 (N.D. Ill. Oct. 21, 2013); Wells Fargo Bank, N.A., 2013 WL 251203, at *1 (describing the Rule 41(a)(2) analysis including undue prejudice). The Diazes have been clear about their intention to rescind their transaction without having to repay the principal to Ameriquest and discharge the debt in bankruptcy. ( Id. at 2). According to the text of the MCCCDA, a borrower "is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission."[3] Mass. Gen. Laws Ann. ch. 140D, § 10 (West). The judge presiding over the Diazes' adversary proceedings has, in the past, interpreted the MCCCDA to mean that borrowers need not repay financing when seeking rescission. Cromwell v. Countrywide Home Loans, Inc., 483 B.R. 36, 47-48 (D. Mass. 2012); see also 209 Mass. Code Regs. 32.23(4)(a) ("When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.").
In the Northern District of Illinois, rescission under TILA "encompasses a right to return to the status quo that existed before the loan." Handy v. Anchor Mortgage Corp., 464 F.3d 760, 765-66 (7th Cir. 2006); see also Stewart v. BAC Home Loans Servicing, LP, No. 10 C 2033, 2011 WL 3510909, at *3 (N.D. Ill. Aug 10, 2011). Consistent with that principle, courts here have held that "the equities lead to a requirement that the amounts be repaid before the security interest is relinquished." AFS Fin., Inc. v. Burdette, 105 F.Supp.2d 881, 882 (N.D. Ill. 2000). Put plainly, the Diazes would be required to pay Ameriquest back the principal to achieve rescission under TILA, while their desired outcome under the MCCCDA would be to avoid this consequence.
First, the Diazes' confidence in the Cromwell interpretation of the MCCCDA is misplaced. Indeed, that interpretation of the MCCCDA is unsettled law in Massachusetts. Other courts have read the MCCCDA to require repayment of the security interest for rescission. Wells Fargo Bank, N.A. v. Jaaskelainen, 407 B.R. 449, 462 (D. Mass. 2009) (requiring that the bankruptcy court consider "traditional equitable notions, including such factors as the severity of Appellants' MCCCDA violation and the degree to which Debtors are able to pay the principal amount"); see Cromwell, 483 B.R. 36 at 46 ("The First Circuit has not addressed this issue.").
Second, even if we accepted that interpretation of the MCCCDA, we could not exercise our discretion to permit the Diazes to succeed with their amendment because it would not serve the interest of justice and would severely prejudice Ameriquest. See Feldman, 850 F.2d at 1225 ("While Fed.R.Civ.P. 15 favors amendments when required by justice, it is not a license for carelessness or gamesmanship."); Wells Fargo Bank, 2013 WL 251203, at *1 ("In considering whether to grant a motion under Rule 41(a)(2), a court must look to whether the defendants will suffer undue prejudice from the dismissal."). The Northern District interprets TILA to require that borrowers pay back principal, while the MCCCDA interpretations have given borrowers the opportunity to avoid this repayment. The Diazes' motive for filing the motion to amend is clear forum shopping and "gamesmanship" to avoid liability. Feldman, 850 F.2d at 1225.
Without interpreting the MCCCDA, we must deny the motion to amend the complaint based on the Diazes's motive. See In re Cox, B.R. 191, 197 (Bankr. C.D. Ill. 1993) ("[Plaintiffs] want to keep the residence, void the mortgage, obtain a refund of all charges or interest, and not repay the loan by discharging it as unsecured debt. There are no other terms to describe their approach other than to describe it as one based on greed and manipulation..."). Providing the Diazes with the relief they seek would unduly prejudice Ameriquest by preventing Ameriquest from benefitting from the TILA requirement that the financing be repaid once the transaction is rescinded, effectively returning the parties to the status quo. Handy, 464 F.3d at 765-66.
For the reasons stated above, we deny both the request for suggestion of remand and the leave to file an amended complaint. It is so ordered.
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- Self Bailing Cockpit Deck
- Variable Deadrise Hull
Deck / Cockpit / Console
- 66 Sq. Ft. of Cockpit space
- Self Bailing Cockpit
- 23 inches of interior freeboard
- Auto/manual Bilge Pump
- Aft Quarter Seats w/Cushions
- Stainless Steel Bow and Stern Eyes (3)
- Fuel/Water Separator (1)
- Bow Grab Rails, Powercoated Aluminum (2)
- Fingergrip S/S wheel
- 316 Stainless Steel Deck Hardware
- 8" Stainless Steel Cleats (6)
- Console Stainless Steel Grab Handle
- Pedestal Helm Seats w/Custom Cushions (2)
- Baystar Tilt Hydraulic Steering
- Black/White Rub Rail
- Ritchie F-50 Compass
- 12V Accessory Outlet
- Fire Extinquisher
- Stainless Steel Steering Wheel
- LED Navigation Lights
- Custom EdgeWater Graphics
- Electrical switch panel with circuit breakers
- Waterproof Automotive Style Connectors
- Tin-Plated stranded copper wiring
- Insulated bow storage locker (2)
- Deluxe Pedestal Seats (2)
- Drink Holders (7)
- SS 8" Stud Mount Cleats (6)
- Custom tempered glass windshield
- Under gunwale port/stbd rod storage
- In Floor Ski Locker
- Integrated Aft Storage/Cooler
- In Floor Ski Locker
- 40 Gallon aluminum fuel tank
- Cockpit Bolster cushions
- Cockpit courtesy lights
Additional Information
- Vinylester Barrier Coat
- Deluxe Flip-up Bolster Seats
- Swim Platform
- Bow Filler Cushion
- Clarion Stereo/CD
- Garmin 541s GPS/Chart/Fish Finder
- Extra Rod Holders
- Bimini Top- Navy
- Bow & Cockpit Covers- Navy
- Livewell
- Custom Aluminum Bunk Trailer w/Brakes and Electric Winch
The Company offers the details of this vessel in good faith but cannot guarantee or warrant the accuracy of this information nor warrant the condition of the vessel. A buyer should instruct his agents, or his surveyors, to investigate such details as the buyer desires validated. This vessel is offered subject to prior sale, price change, or withdrawal without notice.
Other Boats from North Shore Sales
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text:
Texans Stats
Tim Duncan Stats #sports #tim #duncan
The three major food groups in Texas - BBQ, Tex-Mex, and Chicken Fried Steak. I had one of those for lunch!
Panthers set to make Kawann Short among highest-paid defensive tackles - Carolina Panthers Blog- ESPN
Texas Amen. www.rx4nails.com
▶ Still got the 45 record of my favorite Buddy Holly song...Peggy Sue <3 me too.
FREEBIRDS! fav restaurant, plus- after track season, going for the super monster. h0LLaaa!
INFOGRAPHIC - NFL - American Football Infographic with loads of cool facts and a chronicle of the evolution of the NFL logos over the years.
Nolan Ryan was the first professional ballplayer to sign a million dollar contract. Ryan signed his contract with the Houston Astros on 11-19-1979. Pictured: Nolan Ryan Autograph on a 1981 Fleer (#57)
Carolyn Jones
Houston Texans News, Photos, Stats, Rankings - USA TODAY


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LNG Vehicles Drive Ambitious Transportation Sector Policies
BMI View: The Chinese National Development and Reform Commission has announced future incent ives for the development of LNG -fuelled vehicles . I n the wider context of China's energy policy , this could be seen as an attempt to spur demand for natural gas in expectation of future large and cheap supply into the country. Nonetheless, until this supply is confirmed, it is unlikely that the necessary large scale downstream infrastructure change required for a boost in LNG vehicle s will be undertaken .
Falling natural gas prices over the past few years are one of the main drivers of the upcoming Ch inese energy policy. Similarly, the country is expecting a boom in unconventional reserves since the EIA announced that China may hold the largest amount of unconventional gas in the world . Current proven reserves of conventional gas are estimated at 3.03 trn cubic metres ( tcm ) . L atest estimates by the EIA put technically recoverable shale gas resources at 35.7tcm.
China is also developing extensive import infrastructure. Pipelines are already feeding the country from Turkmenistan, Kazakhstan and Uzbekistan. The Myanmar-China pipeline, holding an annual gas capacity of 12bn cubic metres (bcm) is due to open in May 2013. Negotiations with Russia are underway but are being slowed down by disagreement on prices. We expect Chinese dependency on foreign gas to grow from 35.1bcm of net imports in 2012 to 154.14bcm in 2021, in spite of extensive national reserves.
|Can't Keep Up
|China - Production, Consumption & Net Imports, 2000-2021 (bcm)


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Apple is reportedly putting together a fleet of drones to take to the skies in order to improve its Maps service, Bloomberg reports.
The drones will be used to examine street signs, track changes in road layouts and update the database with areas of construction, Bloomberg's source explained. Using drones to track the changes in the landscape would produce faster results than using cars fitted with cameras and sensors, which is how the company currently updates its service.
Apple is also said to have been granted approval to fly drones for commercial purposes by the US Federal Aviation Administration, and has reportedly hired at least one person from Amazon's drone delivery service Prime Air.
Share your voice
All the latest Apple news, featuring developments on the iPhone, iPad, Macbooks, OS X and much more.
Dec 3Apple's car letter: What's it driving at?
Dec 2NYPD busts $8 million counterfeit phone scheme
Dec 2Apple factory manager indicted for stealing thousands of iPhones
Dec 2CNET UK podcast 508: Nokia's return and an all-night cat rave


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Professionals in Manchester
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Bayer AG
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DeMichele & DeMichele P.C
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GOJO Industries Inc


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Pet Sitting & Drop In Visits in Towne Oaks, IL
Book a pet sitter to stop by your home a few times a day to feed and play with your cat or dog.
To ensure accurate availability & pricing, please add your drop-off and pick-up dates.Dismiss
Energetic dog LOVER!
Morton, IL, 61550
House Sitting, Drop-In Visits, Dog Walking
About: My husband and I have two very energetic dogs of our own that we love (Australian Cattle Mix and Pitbull)! I have had many years of taking care of ... (more)
Experienced Dog Lover :)
Marquette Heights, IL, 61554
Dog Boarding, Drop-In Visits, Dog Walking
"My dog Sven had the best weekend while Rebecca watched him! Rusty (Rebecca's dog) and Sven had the run of the yard in a great large fenced in area. Knowing... (more)"
Passion driven, dog enthusiast.
Pekin, IL, 61554
Dog Boarding, House Sitting, Drop-In Visits, Doggy Day Care, Dog Walking
"Kailey stays in contact throughout the visit so I know how my babies are. Having both a big and small dog I can attest to her ability to handle breeds of al... (more)"
They call me Mad-dog
Peoria, IL, 61614
House Sitting, Drop-In Visits, Doggy Day Care, Dog Walking
"I have seen Maddie grow from the start of her dog sitting career. She has a true passion for animals, as well as helping out others. She is punctual, persona... (more)"
Experienced and Loving Dog Sitter
Peoria, IL, 61615
House Sitting, Drop-In Visits, Dog Walking
About: I have been actively caring for dogs and puppies over the past 7 years, working with more than 10 families and their beloved animals. I have experi... (more)
Dogs are my favorite family member!
Hanna city , IL, 61536
House Sitting, Drop-In Visits, Dog Walking
About: You'll have my promise of piece of mind while you're dogs are in my care.I've volunteered for years at rescues and placed many in their forever hom... (more)
Kind heart with a lot of love.
Creve Coeur, IL, 61610
House Sitting, Drop-In Visits, Dog Walking
About: Looking for a pet sitter who takes her job to heart. Years of caring for pets in small, medium, and large sizes. Someone who loves being with anima... (more)
Let's Get Giggy With It Pet Servces
Pekin, IL, 61554
Dog Boarding, House Sitting, Drop-In Visits, Dog Walking
"When deciding on a two week trip one of our concerns was should we leave our three family members in a kennel. Luckily we knew Deanna was providing dog watch... (more)"
Experience exceptional service and a personalized match
From start to finish, we'll handle all the details for you.Learn About Premier
Rover also offers pet setting & drop ins in:
|Creve Coeur, IL
|East Peoria, IL
|Groveland, IL
|Marquette Heights, IL
|Morton, IL
|North Pekin, IL
|Pekin, IL
|Pekin, IN
|Schaeferville, IL
|Tremont, IL
The next time you head out of town and need someone to take care of your pets — and check in on you home — turn to Rover. It's easy to find a loving Towne Oaks pet sitter on Rover who'll give your pet one-on-one attention while you're away, and take care of your home. Search from hundreds of trusted pet sitters in Towne Oaks, IL, read sitter profiles, and reach out to sitters who seem like a good fit for you and your pet(s). We know it can be tough to leave your pet, which is why we encourage every pet parent and sitter to have a Meet & Greet before booking the stay. Then, when you're ready, book and pay for your house and pet sitter all through Rover — it's easy, safe, and cashless. You'll have the peace of mind knowing that your sitter has free premium insurance, a team of safety experts available 24/7, and will send you cute photo updates throughout the stay. Rover is the easiest way to find trustworthy Towne Oaks pet sitters and avoid the kennel.


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Popular with a diverse mix of successful young professionals, corporate executives, and cultured tourists, Sonsie serves up a menu of first class food and seasonal cocktails...
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Inside Amy Schumer Season 4 Premiere: Congress, Yogurt and Hamilton
Macall Polay/Comedy Central
She's back! Did you miss her? Inside Amy Schumer made its triumphant return to TV with "The World's Most Interesting Woman in the World," a reference to the sketch running throughout the episode featuring Amy Schumer riffing on The Most Interesting Man in the World spokesperson from Dos Equis. As per usual, nothing was off limits for Schumer and the Comedy Central series—she tackled Congress, sex life while in a relationship, Hamilton and yogurt that benefited vaginas.
We ranked the sketches below.
MORE: Inside Amy Schumer's Best Sketches
1. "Congress." Inside Amy Schumer is known for sharply taking on everything, from one night stands to Hollywood double standards, so when Amy got a pelvic exam from "members of Congress" (including House of Cards star Reg E. Cathey), it was just too perfect. The sketch, helped by its shortness, hit all the right notes without going overboard.
Comedy Central
2. "Relationship Center." While political happenings—especially with women's rights—are always a strong point for Inside, the show also generally hits high notes when taking on the mundane, including the sex life of a couple who's been together for a while. Everybody's done a little something similar to "Relationship Center," just admit it. You'll feel better.
CLICK: Inside Amy Schumer Has the Game of Thrones Spoiler You Really Want
3. "Betsy Ross." Unless you are living life without the Internet (if so, how are you reading this?) you have heard of Lin-Manuel Miranda's Hamilton in some capacity. Perhaps you are one of the few lucky ones who have scored tickets to see it! Regardless, Hamilton is the biggest thing on Broadway, probably since Wicked, and of course it is ripe for the homage. A musical about Betsy Ross? Eh. A musical about Bethenny Frankel? Now we're talking.
4. "Yo-Puss." Whenever Rachel Dratch shows up anywhere it's cause for celebration. This yogurt commercial parody worked, but the thought of consuming all that yogurt was just disgusting.
CLICK: Inside Amy Schumer's Raunchy New Trailer Has All the Vagina Jokes You Will Ever Need
5. "Amy Goes Deep." Amy Goes Deep featured Amy's waxer. It was enjoyable, but not groundbreaking. However, while we're talking about the interviews, where were the man on the street segments? All for Amy chatting with other comics and celebs, but some of the funniest off the cuff moments from previous seasons included Amy on the street with New Yorkers.
Inside Amy Schumer airs Thursdays, 10 p.m. on Comedy Central.
PHOTOS: Amy Schumer's Best Looks


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We were upgraded to a swuite , great, thanks to Booking .com
Do admire the beautiful interior design of resturant and thea mbience created.
Need people who can speak English.
We had great breakfasts that were included in our room rate. Restaurant was very convenient with locally sourced, tasty food. Bathroom had skylight that provided great light.
The room was new and clean. The pine wood furniture added very warm, country feeling to the room.
It is well situated for walkers like us and the spa is not too far away. The cleanliness, friendliness and total ambiente. We should also pay tribute to the cleaners who are mostly forgotten in comments, they do a wonderful job. All in all, a very peaceful place to stay.
Everything was perfect! Specially the owners who were very nice.
Another warm welcome, comfortable room and good breakfast. Will return.
Attentive and friendly owner. Excellent quiet location near the town centre and ten minutes walk from the station. Good value - recommended.
It was quiet, unobtrusive and very relaxing for me - and inexpensive.
No, everything was very pleasing for the money
It seems a hotel for a very specific group of people. It is not very suitable for bussiness people as for example my room did not had internet conection.
The staff were very friendly. The room was very clean and nice.
We arrived after dark and had trouble finding the hotel. We called from our cell phone and staff came running into the street and down the block to find us and lead us around a corner to the hotel. When we wanted to visit a nearby spa, another staff got in his car to show us how to get there.
Friendly,well run.Food good.Centrally located.Good value.
The Michelin awarded restaurant
I was surprised that I could not use any credit card
Friendly staff and local woodland/park walks
Only very expensive food available at the hotel, although the rooms themselves where reasonable
Cleansiness, Friendly approach from Staff, Fabouless Food and it was near to Hospital.All in all a very relaxing Place to stay.
It was all very good
Quiet and pleasant environment, friendly staff, easy access and large car-park, ideal for a long stay or just to spend the night. I will gladly stay there next time I am in the region.
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Visit the home and workspace of graphic designer Marian Bantjes, as she shares her views on design and designers, and tour her distinctive one-woman show at the Ontario College of Art & Design.
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Bodybuilding.com Employee Spotlight: Michael Lose
| Name: Michael Lose
Email: email@example.com
Age: 25
Height: 5'9.5"
Weight: 230 lbs
BodySpace: Mighty Mik
Michael: I am a Smooth Talk'n, Email Rock'n, Chat Take'n, Loyal Customer Make'n representative / floor supervisor. I have been with the company for 12 months.
A: I was active but not as active as I could've been. I've competed in Division II Men's Rugby for the past 4 years for Snake River Rugby Club, here in Boise. My diet wasn't conducive to competing at my peak for 80 minutes of rugby. My fitness level was equivalent to a weekend warrior/arm chair quarterback.
A: A lot of interval cardio training, explosive complex Olympic lifts with Train Insane With Kane influences.
Workout four day a week: Monday, Tuesday, Thursday, Friday. Weights and cardio each workout day.
Day 1: Functional Workout 1
- Massage Sticks/Rollers
- Elbow Bridge: 1 set of 45 sec hold
- Side Hip Thrust: 1 set of 10 reps
- Lateral Hurdles With Spiderman: 2 sets
- Box Jumps: 3 sets of 4 reps
- Hang Snatch: 6 sets of 4 reps
- Superset:
Front Squat: 3 add sets of 8 reps, 2 sets of 8 reps
Pull-Ups: 4 sets of 8 reps
- Superset:
Stability Ball Straight Leg Hip Lift: 3 sets of 8 reps
Inverted Chin-Up: 3 sets of 8 reps
- Weighted Glute Ham Sit-ups: 1 set of 20 reps
- Dynamic Floor
Day 2: Functional Workout 2
- Massage Sticks/Rollers
- Crunch: 1 set of 15 reps
- Sit-Ups: 1 set of 25 reps
- Side Toss: 1 set of 10 reps each
- Hang Clean: 3 add sets of 4 reps, 3 sets of 4 reps
- Dumbbell Snatch: 3 sets of 3 reps
- Bench Press: 3 add sets of 10 reps, 2 sets of 10 reps
- Superset:
Dumbbell Row: 4 sets of 8 reps
Glute Ham Raise: 4 sets of 8 reps
- Rope High Row: 12 reps
PVC Warm-Up:
Day 3: Off
Day 4: Functional Workout 3
- Massage Sticks/Rollers
- Shoulder Bridge: 1 set of 45 sec hold
- Obliques: 1 set of 10 reps each side
- Forward Hurdles With Lunge Elbow Touch: 2 sets
- Hurdle Hop & Stick: 3 sets of 5 reps
- Split Jerk: 3 add sets of 4 reps, 3 sets of 4 reps
- Superset:
Back Squat: 3 add sets of 10 reps, 2 sets of 10 reps
Chin-Ups: 4 sets of 8 reps
- Superset:
Barbell Lunge: 3 sets of 6 reps
Overhead Press: 3 sets of 8 reps
- Lateral Hurdle Over/Under: 2 sets
Day 5: Functional Workout 4
- Massage Sticks/Rollers
- Side Elbow Bridge: 1 set of 30 second holds each side
- Russian Twist: 1 set of 20 reps
- Chest Pass: 2 sets of 10 reps
- Barbell Jump Squats: 6 sets of 4 reps
- Trap Cleans: 3 sets of 4 reps
- Incline Bench: 3 add sets of 5 reps, 2 sets of 5 reps
- Superset:
Inverted Pull-Up: 4 sets of 8 reps
Reverse Deadlift: 4 sets of 8 reps
- Bridge March: 1 set of 60 seconds
- Band Sideline Shuffle - Pillar to Pillar: 1 set
Day 6: Off
Day 7: Off
- 2/3 cup quick oats
- 1 tbsp peanut butter
- 1 scoop Scivation whey chocolate
Meal 2 & 3:
- 4 oz turkey meat
- 1/2 cup brown rice
- 1 cup assorted veggies
Meal 4:
- 2 scoops Scivation whey chocolate
- 1 large banana
Meal 5:
- 4 whole eggs
- 1 cup veggies
Pre Workout:
- ProMera Health Con-Cret: 3 scoops or 3 caps
Morning or Post Workout:
- Scivation Whey: 1 scoop
With All Meals & Pre Workout:
- SciFit L-Carnitine: 2 caps
With All Meals:
- MRM CLA: 1 cap
Once Daily:
- NOW EGCg: 1 cap
- Universal Animal Pak: 1 pak
A: I am surrounded by people who genuinely care about fitness. Having access to resources that help improve a person's well being is great.
A: Bodybuilding.com has awesome incentives built in that reward healthy living. Our gym membership program is great.
A: My co-workers are as cool as the other side of the pillow.
A: I have definitely had some people help me reach my goals. Ironman Ikaika was my workout buddy. We don't do the same lifting programs, but it was convenient for us to go straight to the gym after we got off. While at the gym Buffed Out Bo and Shreddin Steve would be there to keep us accountable. Dazzling Danielle became my transformation buddy and we set out to own it.
Jack3d Jesse went through it with me too. Koncret Kyle, Stacked Skyler and MMA McKyle were always willing to help out with great advice. Ginseng Jenny offered some great support. Hack Squat Heather and MegaMan Myke helped with some of my poses for the final pictures. Great group of people to do this with.
A: I am not sure if I've inspired anyone, but if I have feel free to add me as an inspiration on BodySpace.
A: My favorite feature on the Bodybuilding.com website is definitely the "Visitor Stats" feature. If you don't know what I'm referring to, you better ask somebody.
A: The main reason I decided to participate in this transformation was to become the best rugby player I could be. I think Bodybuilding.com gave me the tools to shed the excess weight that sometimes hindered my ability to perform to maximum potential on the rugby pitch for 80 full minutes. I haven't quite hit my peak thus far, but I am a lot closer to it then I was in January.
A: That would definitely depend on what you feel like the bodybuilding lifestyle entails. There are aspects of bodybuilding that translate well to being productive at Bodybuilding.com. For instance, the ability to be disciplined is vastly important. If someone is disciplined enough to delay short term gratification for long term success, that speaks volumes to that individuals character and maturity level.
A: One of my personal goals is to represent the USA in the upcoming 2011 Rugby World Cup. Not sure if it will happen, but I am better prepared for it now. Working here has greatly impacted the foundation of my fitness to make that a reality.
Want To Work For Bodybuilding.com?
Company Info, Career Opportunities And More!
Ever wonder if we actually practice what we preach? Well, look no further. We are proud to announce "The Bodybuilding.com Fit Profile Of The Month". This new monthly feature has been created to share the successes and determination of each employee selected.
- Nominate A Bodybuilding.com Employee
- Check Out Career Opportunities
- Learn More About Bodybuilding.com
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