Democracy Is on the Ballot: One Party Defends It, The Other Would Let It Die

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—explains why the 2020 Democratic National Convention was unlike any other political gathering in American history for reasons beyond its virtual platform. Sarat argues that the future of American democracy lies in the balance, and when we vote in November, it will be up to us whether democracy lives or dies.

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In re: National Collegiate Student Loan Trusts

Court: US Court of Appeals for the Third Circuit

Docket: 18-3327

Opinion Date: August 19, 2020

Judge: Thomas L. Ambro

Areas of Law: Banking, Trusts & Estates

Six Delaware statutory Trusts acquired student loans, issued notes for the acquisitions, and pledged the student loans as collateral for the notes. This “securitization” works well when the students do not default. The Trusts initially did not provide for servicing delinquent loans; under a subsequent “Special Servicing Agreement,” U.S. Bank became the Indenture Trustee and the “Special Servicer” but allegedly failed to collect hundreds of millions of dollars in delinquent loans. The holders of the Trusts’ equity ownership interests hired an additional loan servicer, Odyssey, and submitted invoices from Odyssey for payment from the trust estate. The district court held that the Trust documents were not violated by hiring Odyssey and Odyssey’s invoices were payable. The Third Circuit reversed in part. Several provisions of the Odyssey Agreement violate the Trust documents by impermissibly transferring to the Owners of the Trusts rights reserved for the Indenture Trustee. The Odyssey Agreement supplements and modifies several provisions of the Trust documents, requiring consent not obtained from the Indenture Trustee. The court remanded for a determination of whether the Odyssey invoices are nonetheless payable, which may include reconsideration os a self-dealing issue.

Rollo-Carlson v. United States

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1815

Opinion Date: August 19, 2020

Judge: Jane Louise Kelly

Areas of Law: Personal Injury, Trusts & Estates

The Eighth Circuit affirmed the district court's dismissal, based on lack of subject matter jurisdiction, of plaintiff's suit against the government under the Federal Tort Claims Act (FTCA), alleging that the VA provided negligent psychiatric care that resulted in her son's death. In this case, plaintiff concedes she was not the appointed trustee under Minnesota law and was only the next-of-kin at the time she filed a claim with the VA. Therefore, plaintiff failed to present the VA with her authority to act as the trustee as required by the FTCA. Because this was a jurisdictional requirement under the FTCA, the court held that the complaint was properly dismissed.

Buskirk v. Buskirk

Court: California Courts of Appeal

Docket: B295648(Second Appellate District)

Opinion Date: August 17, 2020

Judge: Wiley

Areas of Law: Trusts & Estates

In this family dispute over a trust, the Court of Appeal reversed the trial court's dismissal based on lack of personal jurisdiction. The court held that the trial court erred because the trust had ample connections to California, as do all family members who live elsewhere and who protest jurisdiction in California. In this case, the trust originated and was administered in California, the trust is governed by California law, and the trust holds interests in California real estate. Furthermore, respondents have purposefully availed themselves of the California forum; there is a substantial connection between respondents' forum activities and appellant's claims; and California is a fair place to resolve this family dispute about their trust. Finally, respondents' argument regarding Probate Code sections 17002 and 17005 are unavailing.

Berry v. Fitzhugh

Court: Supreme Court of Virginia

Docket: 190331

Opinion Date: August 20, 2020

Judge: Cleo E. Powell

Areas of Law: Real Estate & Property Law, Trusts & Estates

The Supreme Court affirmed the judgment of the trial court denying Plaintiff's request for attorneys' fees from the unrepresented parties in her partition suit under Va. Code 8.01-92 and denying Plaintiff's requests to share the costs for bringing the action and for an award of the rental value of the subject property from the parties who occupied it, holding that the trial court did not err. Plaintiff and her four siblings inherited real property from their mother. Plaintiff later brought suit to partition the property and requested that the trial court compel its sale and divide the proceeds according to the parties' respective rights and interests after subtracting the expenses of Plaintiff's suit. Two siblings appeared at trial pro se. The trial court ordered that the property be sold and the proceeds be split equally among all five siblings and denied Plaintiff's request for fair rental value. The Supreme Court affirmed, holding that the trial court (1) did not err in refusing to award Plaintiff reasonable attorney's fees out of the shares of the unrepresented siblings in the proceeds of the sale of the property; (2) did not err in failing to divide the costs of the partition suit equally among the siblings; and (3) did not err in failing to award fair rental value.