James and Joyce Ferrell v. Samuel R. Pierce, Secretary of Department of Housing and Urban Development

COFFEY, purchased, had purchase, Before CUDAHY Circuit or who would GIBSON, insurance, Judges, Senior Circuit homes with HUD claimed that Judge.* statutorily obligated HUD was adopt * Gibson, 1437; 90-448, Floyd Honorable R. Senior Circuit U.S.C. § Pub.L. No. § Circuit, Judge Eighth sitting by desig- (1968) by Stat. 601 as amended Pub.L. No. 93- nation. 801(1) (2), (1974), & § 88 Stat. 721 codified explicitly at 42 U.S.C. § 1441a. Section 1441a policies has announced similar relat- expresses dissatisfaction with the administra- housing problems to the nation’s since 1937. housing generally, tion of the laws. See United 201(a), § See Pub.L. No. (1937), 88 Stat. 653 Towers, Winthrop States v. 628 F.2d 1028 as amended Pub.L. No. 97-35 Cir.1980); 42 U.S.C. § (1981) 322(c), codified 95 Stat. 402 at 42 allegations made several count

high-quality plaintiffs. (1976).2 the named program. U.S.C. 1715u operates several insurance Joyce Ferrell example, James and For mortgages on grams in which it insures they purchased a home alleged that in 1971 in moderate by low and property owned $22,600. mortgage was Chicago individuals, elderly handi persons, come designed by insured under a displaced by persons capped persons and 12 purchasers, income for low to moderate §§ 1709, 12 U.S.C. government action. § lived The Ferrells U.S.C. possible This insurance makes children. their four minor the home with might not otherwise be able people who ill and Jоyce Ferrell became In mid-1972 housing. financing purchase to to obtain resign employment, her forced to from mortgage insur in addition to Apparently, per earning she had been $550 where provide ance, programs various the HUD drop in the fami- month. Because of this participat to incentives and benefits other income, to ly’s the Ferrells were not able mortgagees mortgagors. Partici approved by mortgage payment mortgagees pay August must be their pating Secretary responsible 30,1972. and able to September “as On Octo- until $220 properly.” 12 U.S.C. mortgage service the they paid an additional amount of ber §§ § also, 1709(b)(1). 12 U.S.C. 1715l September payment. representing the $220 (d)(1),1715z(i)(2). days payments were Eight later these two Ferrells as insufficient returned to the requir- anticipated persons bring mortgage current. On Novem- acquire hous- ing government assistance to August, ber 11 the Ferrells sent $660 difficulty keeping cur- ing might also have October, September and and on November mortgage payments. These individ- rent in $220, believing they another sent unlikely liquid to have substantial uals bring mortgage payments would large savings, and these amounts of assets however, Meanwhile, Unity tempo- Sav- relatively minor and current. therefore even may Association, mortgagee, rary problems ings cause these and Loan economic Thus, Congress filed, 6th, autho- people to default. a foreclosure had on November HUD, in action; hence, payments rized U.S.C. (1976), the November 1715m mortgage pro- relief operate a foreclosure Ferrells. The also returned to the were essence, authorized gram. complaint assert allegations of the HUD, receiving default and after notice of Unity Savings in Ferrell informed James foreclosure, purpose avoiding for the ill August that his wife was but that debt, mortgage assign- take an pay off the Unity subsequent payments Sav- rejecting mortgage mortgagee ment of the from ings inquiry about the reasons for made no (or plan payment out a forebear- and work payments. the late mortgagor. Be- agreement) with the ance assigns mortgage mortgagee cause major problem A encountered HUD, relief is type of foreclosure although detailed in plaintiffs, not the Fer- “assignment commonly referred to as an allegations, falling tempo- that in rells’ program.” rarily рayments slightly— behind —even may significant mortgagor incur late brought plaintiffs suit When the charges example, plaintiff and costs. For operating any mort- actively HUD was not behind in William McCluster was his $36 un- relief To gage foreclosure mortgage payments he was when informed problems which fully the sort of derstand his mortgagee’s attorneys avoid, might we shall re- (N.D.Ill.1974) dismiss); complaint (denying allegations of the motion details of the 2. The (N.D.Ill.1975) working F.Supp. (denying insurance and the reconsidera program may tion); (N.D.Ill.1983) grams foreclosure relief F.Supp. (denying opinions in this court’s in the district Stipulation). found motion to case, F.Supp. reported Lynn Brown v. at 385 pay processing assignment requests McCluster would have to in ac- $621.40 costs, attorneys plus Apparently, fees and his next cordance with settlement. advance, mortgage payment bring his high percentage assignment applica- mortgage up to date. McCluster fell be- being erroneously tions were denied. The payments hind in his because a two plaintiffs contempt threatened to seek cita- lag his month between the termination of against tions and other HUD employment receipt the initial of his dropped, officials. These efforts were old-age security plain- social benefits. The however, agree- when the reached alleged improper tiffs also that numerous August ment on on the terms of practices mortgagees causing were hard- Stipulation. the Amended The Amended ship mortgagors for HUD-insured and thus Stipulation specific signifi- contained frustrating the realization of the nation’s procedural cant substantive and constraints housing goals. operation assignment pro- on HUD’s gram. Specifically, agreed, HUD in Para- sought The relief in the Second Amended graph Stipulation (repro- 3 of the Amended Complaint alleged related to two failures of below) duced operate that it would the as- First, plaintiffs sought HUD. an order signment program years for five in accord- requiring regulate HUD to monitor and newly-revised ance with its handbook and mortgagees prevent “premature and not, during year that it would the five term Second, precipitous” foreclosures. Stipulation, of the Amended curtail plaintiffs requested the “ba- requiring an order rights” participating mortgagors: sic provide HUD to foreclosure relief. The original agreement settlement and Amend- 4191.2, 3. HUD Handbook attached Stipulation provided categories both A, Appendix hereto as shall constitute sought by plaintiffs. of relief binding implementation instructions for assignment program subsequent of the original The settlement and Amended entry Depart- of this order. The Stipulation provided only assignment for an assignment ment shall administer the program. original settlement, The entered program substantially in accordance with approval as a consent decree with court the terms of said Handbook. Said Hand- 29, 1976, July incorporated plan a detailed incorporated book is hereto refer- assignment program. [sic] for a HUD supersedes ence and HM 76-43 and HM plan adopted had in May been Mortgagee Letter which documents applied mortgages fully and to all home were contained in this order of Court’s plan prescribed insured HUD. The July A B. as Exhibits detail the conditions under which a mort- provisions may of the Handbook be modi- gage assignment accepted, be when would Department’s fied in accordance with the appropriate forebearance would be and the However, procedures. during usual procedure obtaining relief under the Stipulation term of this Amended the De- program. The 1976 settlement partment any will not make modification adopt expe- required “explicit HUD to rights which would curtail the basic processing assign- time limits for ditious” mortgagors program under the now in requests. agreed HUD also to in- Department give existence. The will no- participating mortgagees they form plaintiffs’ prior tice to counsel to final begin could not foreclosure until had any action on modification. assignment. decided to take an whether provision by mortgagee Violation of this agreed in Paragraph HUD also 14 of the suspension could lead to or termination of Stipulation pro- Amended to continue mortgagee’s participation HUD vide, expiration Stip- after of the Amended programs. mortgage insurance term, year ulation’s five foreclosure relief finally 1976 settlement did not re- in the form of the or dispute “equivalent Paragraph between the be- an substitute.” solve plaintiffs provided, in full: cause the believed HUD was as to avoid mortgagee so rectly to the para- in this Except provided as' Thus, a TMAP obligations crеated foreclosure. graph, rights could, designed, just as advanta- termi- if so Stipulation shall by this Amended assignment mortgagor as the of execution. years geous from date nate five spe- require lower cash out- Department’s would The termination of the but course, TMAP the under under obligations lays by cific HUD. Of compro- mortgageholder would identity shall not diminish assignment obligation con- Department’s change, as it does under mise the Housing under the National strued amended, 2 of the Hous- and Section in their explain The HUD defendants 2 of the and Section ing Act of 1949 “primary impe- court that the to this brief Development Act of Housing and Urban legislation was the tus behind avoidance re- provide foreclosure 1968 to skyrocketing cost of the finan- temporary mortgagors lief for Appellants at 11. Cost gram.” Brief for distress, Department shall cial TMAP because “under savings result from or relief in the form provide assistance pay have to out TMAP HUD does not program or an present assignment instead but entire balance permit mortga- equivalent substitute temporary payments on need make mortgages their gors in default on situations, Id. mortgage.” both retain their and tо avoid foreclosure outlays fully secured: HUD’s temporary fi- during periods of homes acquires nancial distress. security while under mortgage as report monthly on the agreed to HUD also mortgagee be- made to the payments all enabling the dis- operation program, prop- mortgaged lien on the come a second Will) (Judge L. to moni-

trict court Hubert According Judge comments erty. Will’s compliance with the Amended tor HUD’s program of no record, operation in Stipulation. because, expensive option of all the most is available, is with no foreclosure Meanwhile, working legisla- was claims on required pay insurance often a implement what it considered tion to With mortgages they after are foreclosed. providing foreclosure cheaper method of the owner of procedure HUD becomes that program, Temporary This new relief. is often vacant vandal- (“TMAP”) property which Mortgage Payments Assistance ized. proposed Congressional originally was The 1979 by HUD 1979. enactment hearing on the court held The district TMAP was rein-

posal withdrawn but was contempt on March plaintiffs’ motion plain- At that time the in 1980. troduced point, Judge Will was some- At that contempt held in sought to have HUD tiffs agitated in his view HUD because what plaintiffs claimed that court. The agree- entered into had at the same time TMAP, violating its HUD was proposing operate the ment to assignment pro- operate the and, informing the court or without Ap- Stipulation. gram the Amended replace sought legislation to plaintiffs, budget proposal indi- parently, HUD’s Judge TMAP. assignment program with assignments take no that it would cated however, not to persuaded, hold was Will (If adopted. if TMAP were year contempt. fac- Several the defendants expected to adopted, HUD TMAP were not the introduc- him not to find tors convinced assignments.) accept several thousand TMAP to be contumacious. his tion of statement, Department At- opening as- Justice TMAP, from the principle, differs Alphonse M. Alfano told the court torney only respect: program in one signment legislation “would leave the that the not take an TMAP HUD does August intact program until Instead, mortgage. defaulted Proceedings, March Tr. of di- 1984.” temporary on a basis payments makes (Hereinafter “Contempt at 8. pointed сited as Mr. Simons out the TMAP Hearing”) added). (emphasis Mr. Alfano legislation “permissive, discretionary further Assignment stated that “the Pro Secretary, with the imple- ... before gram presently will implemented, is it, mentation of it was the intention to come changed.’’ not be Id. at (emphasis add before this Court to see if it is consistent ed). explained He assumptions with the decree.” Id. at 77. upon budget which the submissions show The essence of testimony Mr. Simon’s assignments no in 1981 were based responses questions contained his to two Id. longer were “no valid.” 11-12. He from the district court: argued contempt further that a finding THE you telling COURT: Are me ... inappropriate would be because the Amend you visualize a TMAP which explicitly did not address the would advantageous be no less question authority of HUD’s to introduce mortgagor than the Assignment Pro- legislation to eliminate obligations gram, but simply would cause the mort- just agreed. which it had Mr. Alfano fur gagee to continue mortgagee to act as argued officials, ther that HUD because of rather becoming than HUD assigned “good obligations their faith under the con mortgagee? decree,”3 sent changes had advocated legislation “so that it could be THE WITNESS: That exactly cor- implemented equivalent as an substitute rect, your Honor. Assignment for the Program.” Counsel THE suppose, COURT: ... I if I un- acknowledged, however, also if Con you derstand correctly, no will gress legislation were to enact inconsistent attempted implemented to be unless operation with continued of the consent you first have a concurrence from us decree, HUD would come Judge back to that the derogation is not in Will and seek modification of the consent the decree. decree.4 THE WITNESS: That is absolutely testify witness to at the con- correct. tempt hearing Simons, was Lawrence B. Id. at 83. Secretary HUD’s Assistant Housing for Thereafter, September on Con- Housing and Federal Commission. He was gress passed the Housing Community and the official with responsibility for adminis- Development Act of 1980, Pub.L. No. 96- tering HUD programs, insurance 399, 94 Stat. Section 341 approved and he the Amended Stipulation and, the 1980 Act amended for the agreed before HUD to it. At contempt time, first authorized HUD to offer a hearing, Mr. repeatedly Simons represent- program. TMAP Judge carefully Will ana- ed that TMAP equivalent would be “an lyzed the new F.Supp. at 1715m. 560 program” clаrity 1350-54. precision planned that HUD operate TMAP con- Judge analysis Will’s make a currently with detailed reit- assignment program, eration of it here unnecessary. short, a In substitute. Mr. Simons also testi- § 1715M(a) intent, fied that authorizes operate was not HUD’s HUD to as its showed, budget figures TMAP completely eligibility under the same elimi- criteria as assignments “any prior nate because action that contained law the handbook we took comply would have to implementing with that Stipulation’s Amended Contempt consent decree.” Hearing at 75. See F.Supp. at attorney 3. A HUD staff wrote a memo concern- 4. We do not have before us a situation in which general TMAPto HUD’s counsel in which he compliance has made further with the "proposing statutory stated that HUD’s a re- statutorily impossible. consent decree See Part placement Assignment Program for the ‍​‌​‌​​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌‌‌‌​​‍which is might II-B present prob- Such a case a infra. equivalent interpret- not its substantial could be altogether lem different from the one before us. the Court as evidence of bad faith.” Record Item Exhibit 9. legislation re by the 1980 fact, represented Judge found that law In Will 1350-51. modify the con quired the district court 1715w(a)(2)еssentially certain codified Federation No. System 1715w(b) decree. sent Section of the visions handbook. Wright, 81 S.Ct. operate the to continue to authorizes HUD (1961).5 5 L.Ed.2d un- assignment program. “The conditions is now available der which numerous The district court received previous stat- to those under identical evidentiary hearing on and held an briefs requirement ute, except for the further de motion to the consent HUD’s accepted assignments are now to be that consideration, the district After cree. determines only when modify the denied HUD’s motion to court ” F.Supp. ‘inappropriate.’ Judge Stipulation. found Amended Will proposed many provisions of the contrary agree regulations were to HUD’s legislation became After the 1980 preserve plaintiff class’s “basic law, proposed im- ment promptly published HUD Paragraph of the Amended rights” under public notice plementing regulations regulations Stipulation, the new regulations proposed and comment. provide equivalent form of did not for an program for im- comprehensive constitute Stipu relief the Amended imple- foreclosure within Instead of plementation of TMAP. immediatеly, lation.6 menting regulations seeking

brought to the district court them by the district found Stipulation. of the Amended modification the Amended court to be inconsistent with Modify In its “Motion to November charged Stipulation involved interest rates Reflect Approving Settlement Order assistance, the date of the onset Law,” proposed Change in addi- schedules, accrual, eli- repayment interest following paragraph to tion of the requirements for foreclosure relief gibility Stipulation: discretion HUD retained and the amount of Stipula- Nothing in this Amended administering aspects of TMAP. certain any way or interferes in with tion affects court found that Significantly, the district Department’s implementation of the eligibili- regulations tightened the the new as authorized Public ty requirements Law 96-399. (whether assignment program or under the TMAP) quality and lowered motion, argued support challenge relief. HUD does not available agreement explicit- nothing in the 1979 findings regard district court’s ly adding it from a new precluded proposed regulations on the effect of the claimed that under as TMAP. HUD such rights agreement. the 1979 secured regulations it would newly proposed the Rather, legal the basis for HUD attacks Stipula- Amended operate the continue ruling the Amended the district court’s that “intact.” assignment program tion’s Stipulation governs TMAP and contends Support of Defendants’ Memorandum change in the law any that event a 8, Modify 1979 Order November Motion requires underlying 1979 the Change in Reflect Approving Settlement to modification of the decree. further at 7-8. The defendants Law modify agreed in the motion to was if After defendants’ argued that even denied, plaintiffs applied for an operate TMAP award Stipulation not to Amended Equal attorneys’ fees under the Access changes in the proposed, in the fashion governing Supreme tion However, itself. System Court held Federation 5. In argument attorney have modified HUD’s ac- the district court should at oral forbidding shop regula- a union after knowledged proposed consent decree shops legal. Congress made union themselves make it more difficult for a tions mortgage assign- granted a class member to be attempt appeal on its HUD has abandoned 6. ment. Stipula- modify provisions of Amended

461 § tion, 2412(d). 648, to Justice 28 U.S.C. 364 U.S. at 81 S.Ct. at 371. plaintiffs Thus, are entitled to fees “unless the we will not overturn the decision of positiоn court finds that the of the United district court unless its action constitut- substantially States ed an abuse of discretion. See Instrumen- justified.” 28 § 2412(d)(1)(A). (This Corps talist Co. v. Marine (d) League, 694 U.S.C. subsection 151; Filippis States, De 1, F.2d at v. United repealed has been effective October 341, (7th 96-481, Cir.1977). 567 F.2d See Pub.L. No. 204(c), 343 See also 94 Fund, Environmental (1980).) Inc. v. Stat. 2327 parties While the disa Defense Costle, 1229, 636 F.2d greed meaning (D.C.Cir.1980) on 1240 “substantially (modification rests with justified,” the district court found discretion of that un Lane, court). Godinez district v. party’s proffered interpretation, der either Cf. 733 F.2d 1250 Cir.1984). government “the 1257-1258 clearly was not substan ensure, however, We must tially justified that the seeking exempt decision of the district court does not Stipulation.” from the Amended rest on an incorrect view of the challenges finding appeal this law and that and refers factual underlying conclusions applicable us to the Report, House decision which clearly are not See generally erroneous. formulates the standard for an EAJA Wright Miller, 11 C. & A. against government award Federal in terms Practice & Procedure (1973). 2962 at government 633-38 whether the “can show that its ease had a reasonable basis both law and construing decree, a consent 1418, H.R.Rep. fact.” Cong.2d court repeatedly recognizеd has that our 10, reprinted in 1980 U.S.Code Sess. Cong. primary goal must tobe discern the intent 4984, & Ad.News argues agree embodied the district finding court erred in no sub ment. See Freedman v. Air Line Stew justification stantial for HUD’s motion to Assoc., ards & Stewardesses 509, 730 F.2d modify.7 (7th Cir.1984); Roughton, White v. 118, (7th Cir.1982), F.2d 119-20 cert. de II. THE MOTION TO MODIFY THE nied, 1070, 460 U.S. 103 S.Ct. CONSENT DECREE (1983); Sportmart, Inc. v. L.Ed.2d 947 Wide,Inc., Wolverine World construction of a consent de 601 F.2d (7th Cir.1979). cree is a matter 316-17 See also United interpretation of contract Co., ITT Baking the States v. Continental governed and thus our review not clearly 223, 233-37, 926, 932-35, erroneous U.S. Instrumen standard. 95 S.Ct. Corps talist Co. v. Marine (1975), League, United States v. Arm L.Ed.2d 148 Co., our (7th Cir.1982). & However, F.2d 151-52 91 S.Ct. 1752, 1757-58, our decision comes after more 29 L.Ed.2d than a dec litigation ade of Judge before Will and A. therefore, recognize, before, we as we have district court’s views on inter argument HUD’s first “[t]he for reversal pretation a consent are entitled of the district court’s refusal to [of decree] City United States v. to deference.” consent decree is that the Stipu Chicago, 717 F.2d (7th Cir.1983) govern lation does not TMAP because the Neeb, Brown (citing 558 n. Amended does explic not refer (6th Cir.1981)). review the itly Our of re to TMAP. imple HUD claims that its quested modification of a consent decree mentation of TMAP as an alternative to the assignment program is not controlled respectful Supreme should be of the Court’s command that the district courts be the Stipulation. terms of the Amended given deciding Thus, “wide discretion” in argument whether the goes, HUD is com System Federa- such decrees. pletely free to TMAP in any "clearly 7. The standard for our review of the Haig, district the erroneous” test. Ramos v. justification” finding (7th Cir.1983). court’s "no substantial F.2d Thus, be channelled members would argument class it chooses. We find manner relief because, quality foreclosure into a lower as completely without merit to be eligible any for (if they gram remain concedes, regula- present TMAP the regula all). impacts of the new These at assign- availability of the tions restrict the the plain language of the tions violate program. ment contrary the intent of agreement and are Stipula Amended Paragraph In 3 of the Amended in the the as embodied assign agreed operate the tion HUD ITT Stipulation. States v. Con See United according to HUD Hand Co., at Baking tinental agreed years, and it 4191.2 for five book concession, light of HUD’s S.Ct. at 932. during years changes the five any possible.9 nо other conclusion rights of mort “curtail the basic would not possible, suppose, for may we It well be program now in exist gagors the under comply its the Handbook sets Chapter ence.” substituting for Stipulation by Amended partic for eligibility requirements forth program a TMAP assignment At assignment program. ipation in the significant difference under which defendants conceded argument, oral retention of the programs in the is the two “restrict[] private That mortgage by its holder.10 assignment program] availability [of program as described would be the TMAP get people only in the sense that Judge by Assistant Simons. Thus, assignment program.” and not however, Will, that the relief determined regulations take doubt the TMAP without TMAP, mortgagors under available to members, a basic away, for class some respects signifi many proposed, falls Stipulation right under the Amended —the cantly of what is available under short assignment participate very right to ap program.11 HUD has not Further, made the district court Therefore, finding. by at pealed that challenged ap is not on finding, which tempting require some members “regulations will ad peal, that the new accept TMAP instead of plaintiff class to of а eligibility definable versely affect sought to curtail assignment, HUD has eligible mortgagors would be who class rights under decree. basic regula the current assistance under urges us to read government The F.Supp. at 1368.8 HUD also tion” governing found, as not Stipulation Amended concedes, court and the district constitu- relief, TMAP in order to avoid “difficult proposed regula under 28. Appellants at advantageous tional issues.” Brief for tions, for the be less would constitu- it argument is that would assignment program relief. mortgagor than ignores in the regula- the codification ern TMAP found that the new district court require- eligibility tightened eligibility assist- Amended for foreclosure tions First, regulation long respects. as TMAP iden- relief. As ance in two ments for relief, likely applicants tifying eligibility default it less the date of made affects the defaulting mortgagors “due part, be viewed as governed, would least in should be at beyond control.” 560 their Stipulation. to circumstances F.Supp. qualify for assistance 1366-67. To plan, must be due to such either default whether a TMAP 10. We do not decide Second, regulations ex- the new circumstances. require- developed with these accordance multiple rentаl panded the class of owners of compliance with the Amend- ments would be in automatically excluded would be units who before Stipulation. That issue is not now us. F.Supp. at 1368-69. As from assistance. noted, findings challenged these has not comparative court’s admirable 11. The district Thus, eligibility on appeal. these effects analysis TMAP and the beyond doubt that the appear to establish would F.Supp. appears opinion 1359-72. in its at 560 Stipula- regulations violate the Amended new portions found The district court tion. refused, posed regulations once valid and also contempt. again, the defendants in to hold plain argument lan- government’s that the rulings us. Those are not before gov- ‍​‌​‌​​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌‌‌‌​​‍not guage does of the Amended

463 tionally suspect appeals. allow executive offi Brief Appellants See for at 29-30 Hence, cial to bind his or her n. 22.13 appears successors office it that the defend policy interpretations to substantive ants have argument by of a waived their not-as-yet presenting enacted it to the statute. We shall not district court. Sin Cf. 96 S.Ct. 106, 120, argument gleton Wulff, the merits of v. reach because U.S. 2868, 2877, (1976); presented, directly never 49 L.Ed.2d 826 Sharp оr indirect “ Co., 423, Ford ly, Motor Credit 615 F.2d district court. ‘An issue not (7th Cir.1980). 1n. presented in the court below cannot be appeal raised the first time on and form Even if the constitutional issue were ” a basis for reversal.’ American Fletcher properly us, before we doubt that it would Bass, Mortgage Co. v. 688 F.2d require be so ignore substantial us to (7th Cir.1982)(quoting Country Fairways, plain language of the consent decree. Mottaz, Inc. v. 539 F.2d Cir. We do not that the legislation believe new 1976) curiam)). (per Greer, Phegley v. See and the consent decree are inconsistent. (7th Cir.1982); 691 F.2d 309-10 Textile Therefore, Part II-B. any See infra Rentschler, Banking Co. v. 657 F.2d change in the law that has occurred does (7th Cir.1981). not create the sort of clear cut conflict might between administrations that create argument, attempted At oral problem. a constitutional present excuse its failure to this issue to by claiming argu district court that the B. depends develop on novel and recent argument that, HUD’s second However, very ments the case law. even if governs the consent decree other difficulty novelty of an issue not forms of foreclosure relief besides the as presented to the district court has been signment program (including TMAP), the counseling cited this court as a factor enactment of authorizing statute against initial consideration appeal. change is a requiring the law Transportation Western Co. v. Webster We, however, modification of the decree. City Co., Iron & Metal agree with the district court’s different (7th Cir.1981) (district judge may “expose significance view of the of the 1980 enact and distill” subtleties of issue to facilitate view, ments. In our Congress’s intent appellate consideration.)12 And, tending to quite clearly was for HUD offer “novelty” us, belie in the case before only in a manner opera consistent with the district court discussed related constitution tion of the and not in al issues with the at the 1980 Con derogation rights protected by the tempt Hearing. Transcript See of Con Stipulation. tempt Hearing addition, sup at 92. In port argument, of its constitutional recognize change We the rule that a principles” relies on “settled established in the requires law often modification of a century Supreme nineteenth or, matter, Court eases as consent decree any very well as recent injunction. cases of the courts of examplе The classic ap- event, analogously, generally 12. Somewhat we have re the failure to raise the constitutional is- “novelty” exception fused to create a sue in the district court in this case cannot be requirement corpus petitioners that habeas novelty grounds. excused on note 13 infra present their constitutional claims to the state accompanying text. Brierton, courts. United States ex rel. Hudson v. (7th Cir.1983). However, F.2d prior 13. constitutional discussions at the Supreme subsequently Court has held that the Contempt Hearing coupled earlier with HUD’s novelty of a constitutional issue is "cause” for century-old reliance on cases makes HUD's fail- prior failure to raise it in a state criminal trial below, support ure to raise the issue of its proceeding, to a habeas at least where at the modify, appear litigation motion to to be strate- time of the state trial there was "no reasonable gy. strategy Such a should not lead to our existing raising basis in law” for the novel question consideration of the here. —Ross, -, -, claim. Reed v. any S.Ct. 82 L.Ed.2d 1 added). (emphasis at 373 81 S.Ct. Supreme principle is plication of this v. Fund Cos Environmental Nо. also Federation System decision Defense Court’s (D.C.Cir.1980). tle, 636 F.2d System Federa- supra. Wright, 91 v. Cf. Elrod, Cir. v. alleging Duran tion, filed complaint had been a Marine Co. v. Instrumentalist 1983); un- and certain railroad the defendant v. supra; United States Corps League, em- against non-union ions discriminated Filippis v. supra; De Chicago, City complaint, the the time of ployees. At States, supra. discrim- United prohibited such Railway Act Labor requir- from railroads and forbade ination case, has government present In the for membership as a condition ing union demonstrating that its far short fallen entry of a years after employment. Six operation of the continued the defendants consent decree which is its in accordance with gram Railway violating Labor stop agreed to obligations under with its inconsistent labor amended to allow Act was argu The defendants’ main new statute. shops. The dis- require union contracts the statute has conferred is that ment the unions motion of denied the trict court discretion “broad but was reversed modify the decree Appellants at Brief TMAP.” that, Court, “The held Supreme which implement have acknowledges that it could require of power no Stip have “according rights the continuing enforcement court statute. violating the new ulation” without at longer gives.” 364 U.S. no statute do not meet The defendants thus Id. at 37. at 373. for a modifi 81 S.Ct. standards the well-established change in of a on account cation of a decree every it clear that The cases make law has change in the the law—that enough to law is change in the relevant statu the decree in conflict with brought de- of the consent the modification require System Federation tory objectives. Co., & In United States cree. Swift 651, 81 S.Ct. at Wright, 364 U.S. 91 v. L.Ed. 52 S.Ct. 373.14 (1932) established Supreme Court if changed might circum- different principle that here be guiding The outcome fundamentally al a consent a party a to avoid faced with entitle we were stances scheme, comparison of decree) only statutory when but (or any equity tered decree § § 1715m leaves us new of the decree would 1715m enforcement old continued principles un legal thus be doubt that wrong and would with no grievous be a decree have not been consent derlying now codi- requirement inequitable. This Old HUD asserts.15 60(b)(5), in the manner provi- altered Rule in Fed.R.Civ.P. fied Secretary discretion granted the here seek defendants which the 1715m sion under mortgage to assignment of a context, an to take change In the of law relief. grants the New 60(b)(5) foreclosure. avoid held that Supreme Court has use TMAP to Secretary the discretion to change brings law in the where “a satisfied assignment, or to take foreclosure con- avoid of the consent terms decree] [the inappropriate. that TMAP is the event objectives.” System statutory flict discretionary lan full of Both statutes Wright, U.S. at No. 91 v. Federation equivalent a provide relief in less Congress contending discretion seems to 14. supra conferring expensive n. 10. adopted substan- form. See purposely statute what- to free HUD from in order tial discretion operation of fore- to its court, attached litigation, ever shackles throughout this 15. The district this to programs. We do not find relief closure provisions of federal hous- several has relied on language statutory and the be the case. duty provide high law to find HUD's infra, point in the history, all legislative see We focus on quality relief. 1715u doubt us with little opposite and leave direction only only is the reason its amendment because quality fore- intended thаt We do not modification. com- advanced change be maintained. closure effected applicability statutes. of other on the give HUD was to statute the new light only intended the difference be- must be in Committee guage and construed provide high-quality existing to TMAP and Congress’s intent law to be wheth- tween nothing in for acquired mortgage. relief. Just as the That re- er HUD many partic compares mer mandates of the port repeatedly TMAP to the as- assignment program as the program only ulars of the no- signment and notes parties, agreed by to the new 1715m leaves nacquisition mortgage of the a differ- as pro particulars of the new many of the programs. the two H.R. ence between See Secretary gram the discretion of the to Cong.2d 96th Rep. No. Sess. 51-54 clearly expressed proviso, su with the see (the (1980) The Report.”) “Committee program new no less pra n. that the be Report explicitly provides: Committee mortgagors than the old. advantageous to designing In TMAP the has Committee in granted the new statute discretion attempted closely possi- to conform as as the discre qualitatively different from existing requirements to thе ble Thus, in the old there granted tion statute. assignment program. What the Commit- change has the law that would been no sought to tee has do is to assure that the pro justify implementation of the TMAP assistance accorded to homeowners un- gram advantageous form in the less programs virtually der both will be the posed by HUD. approaches In essence the two same. only actually agree court that who holds We also district differ assignment it proposed, is in “der program, the TMAP —under Secretary pri- and under Congress.” 560 TMAP it is the ogat[ion] of the intent of lender. The taken recognize 1372. We that the vate Committee has F.Supp. at gave Secretary care to assure that the current struc- new statute discretion ture, requirements approach implementing the TMAP However, program Congress intent of was for will not be altered legislation. by relief to unaltered.16 quality remain noted, As the discretion conferred under Report (emphasis at Committee 53-54 add- nothing statute was new. At amended ed). report The Conference Committee on Contempt Hearing, HUD’s counsel TMAP echoed these sentiments: Secretary character Assistant Simons both It is the intеnt conferees that expensive program a less ized TMAP as developed as a be preserve provided that would benefits cost to the ex- possibly lower alternative Secretary decree. Lan under the Moon isting assignment program. The confer- a Congressional drieu testified before Com however, intend, pri- do not ees implemented TMAP mittee that would be mary on make reliance TMAP should “only the extent the De to consistent with generally assistance section 230 partment’s obligations in Ferrell any more obtain since sub- difficult Hearings Before Subcommittee [.Pierce].” tightening as- stantial criteria Affairs, Housing on and Urban Senate sistance to section 230 could result Banking, Housing and Ur Committee on Therefore, an increase foreclosures. Affairs, Cong., 96th at ban 2d Sess. Secretary direct that the conferees (1980). in a manner addition, on will assure that under sec- House Committee assistance Re- will not Banking, Finance and Affairs tion 230 become less accessible Urban clearly deserving port homeowners de- on TMAP indicates who 15; representations plemental Appendix Hearings dissent fails to note the Before Affairs, Housing Congress that the new Subcommittee on and Urban made HUD officials Banking, Housing complementary be would Senate Committee Affairs, rights derogate Cong.2d existing program, at 14 would not Urban Sess. mortgagors implemented would We thus remain convinced that did obligations assist- not intend that make foreclosure an extent consistent with HUD’s Sup- advantageous. Appellee’s decree. ance less accessible under the consent way accomplish government fault. One this is to justi- establish a substantial assure that fication and this burden is met a show- could remain active as an government’s position alternative to had a TMAP and that has the reasonable basis in law and fact. Ramos v. Haig, discretion to use the Cir.1983). both as a primary source of assistance to default- finding district court’s of no substantial homeowners, backup and aas for justification upheld must be unless it is homeowners for whom TMAP would be clearly Id. finding erroneous. at 474. A inappropriate. clearly only erroneous if we are left awith definite and firm conviction that a mistake H.R.Rep. Cong.2d Sess. 123 has been made. United States v. United (1980), & Admin.News Cong. U.S.Code Co., Gypsum States 364, 395, 333 U.S. 3506,- pp. added). (emphasis S.Ct. 92 L.Ed. 746 proposed regulations thus violate the ex- plicitly Congressional declared intent not to Several factors lead us to conclude eligibility requirements alter the for fore- Judge Will’s clearly decision is not erro closure relief and not to make the relief impressed neous. We are by the care with advantageous. itself less which the district court considered both the recognize, Will, Judge

We as did the merits of the case and the attorneys’ fees importance of fiscal in the questions. Judge considerations explicitly Will declared design government programs. We also gave that he arguments HUD’s “the bene appreciate the at least theoretical merit of every Appendix fit of Appel doubt.” reducing TMAP in deferring the cash Further, lants at 106. HUD failed to chal burden government. on the We reiterate lenge appeal on either the district court’s deciding that we are not whether the insti proposed invalidation of the per se violates the decree. tution of TMAP program regulations or the district court’s proposed regula We decide that finding proposed regula tions, admittedly which make assistance advantаgeous tions are not as to the mort more difficult to obtain and less advanta gagor requirements as the of the Amended geous mortgagors, violate prom HUD’s Stipulation. appeal These failures to key ise, intent, Congress’s not to curtail the points lend support substantial to the dis rights mortgagors.17 basic trict court's decision to award fees. In addition, any persuasive the lack of argu Therefore, No. 83-2038 is affirmed. Stipulation ment that the Amended was not violated EQUAL regulations, restrictive III. cou ACCESS TO JUSTICE ACT pled explicit with the Congres evidence of ATTORNEYS’ FEES sional intent that TMAP be as advanta We must also review the district geous mortgagor to the as the existing attorneys’ court’s award of fees under the program, strongly buttresses the conclu Equal Access to Justice 28 U.S.C. sion that the district finding court’s of no § 2412(d). The district court found that justification substantial clearly is not erro government’s position was not “sub neous. id., stantially justified,” and thus awarded ‍​‌​‌​​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌‌‌‌​​‍plaintiffs. fees to the Therefore, The burden is on the No. 83-2677 is affirmed. requested 17. HUD has us to rule on year whether We also note that the five term of the TMAP, proposed, may go into effect after the Stipulation expires August Amended on year period Stipulation five of the Amended Thus, academic, largely except this case is expires. appear depend This would we must reach the merits in order to address proposed regulations provide whether the attorneys Judge fees issue. Because Will "equivalent substitute" for the current fees, ordered an award of case is not moot. gram. Stipulation Paragraph Amended 14. We Police, See Ward v. Arkansas State propose do not to address this issue before (8th Cir.1981). has been decided the district court. We express no view whatever on the merits of the question. Secretary, dissenting. chapter, discretion COFFEY, Judge, his Circuit purpose avoiding and for foreclo- whether is this issue case mortgage may acquire sure of the ... defendant, Department the United States security upon pay- the loan therefor Development Housing and Urban insurance in an benefits (“HUD”), may modify 1979 “Amended unpaid equal principal to the bal- amount plaintiff and the Stipulation” between HUD plus any unpaid loan mort- ance of the “[n]othing in class, provide that gage plus interest reimbursement or interferes affects attorney’s such fees as costs implementation with [HUD’s] properly incurred Secretary finds were by Congress program,” as enacted connection with the defaulted court denied HUD’s motion to The district Secretary.” to the Stipulation” and en its modify the “Amended its joined implementing from response plaintiffs’ allegations, Ferrell v. regulations. posed TMAP its Handbook for the Admin HUD revised Pierce, (N.D.Ill.1983). In F.Supp. 1344 560 Assign Mortgage istration of the Home addition, district court awarded attor the Programs, setting proce forth new class, finding ney’s plaintiff to the fees dures for officials follow when HUD to justifica had no that HUD “substantial acquiring mortgage 12 a under U.S.C. modifying Stipula “Amended tion” for the basically provided 1715m. The Handbook § majority upholds the The district tion.” mortgagor if in satisfied a default decision, reasoning that HUD’s court’s eligibility requirements, certain “the posed plain violate TMAP the accept would an of mort Stipula the “Amended language” of time, gage, mortgage pay the in full at that congressional in also the intent tion” and negotiate plan mortga a relief the with thorough A enacting program. TMAP the gor. August plaintiff In class reveals, however, of the record review Stipu into an and HUD entered “Amended holding directly majority’s contravenes lation,” approved by the court as a district Congress implement of the intent 1979, provid in consent decree November cost-saving program. majority The pertinent part:1 in engages legislation, in social improperly 4191.2, “3. attached HUD Handbook substituting procedure its views on the A, Appendix hereto shall constitute as providing tempo must follow when implementation binding instructions relief, for rary foreclosure avoidance those assignment program subsequent Congress. I dissent. order____ provi- The entry of this class, by certified plaintiff as may modified sions of the Handbook court, persons pur- who district consists of Department’s with the usu- accordance mortgag- homes with FHA insured chased However, procedures. during al in the currently es or will future and “are De- term of this Amended mortgages.” In be in default on [such] partment any not make will modification plaintiff filed this lawsuit class rights which curtail basic would promul- that HUD had failed alleging program now mortgagors under gate foreclosure enforce an effective Department give existence. will no- in accord program avoidance prior tice plaintiffs’ cоunsel to final (1976), provided: which U.S.C. any action on modification.” “Upon receiving notice of default In one-, two-, September Congress covering amended mortgage a any avoidance relief three-, hereto- four-family residence § 1715m, the TMAP hereafter insured U.S.C. include fore or August July plaintiffs and HUD entered U.S.C. 1715n. In 1976 the by Stipulation,” Stipulation, approved entered “Amended district court into the into a which agreed whereby operate approved August the district court in November as authorized an program. TMAP, Housing Community Secretary See would be “[u]nder 96-399, Development authorized, Pub.L. No. acquisition as alternative to § 341, (1980)(The Stat. existing assignment under the program, to gram was included in H.R. 7262 and codi- mortgage monthly payments make directly 96-399, fied in Pub.L. with minor mortgagee on behalf of owners of changes. H.R.Conf.Rep. No. See FHA-insured, single family dwellings Sess., Cong., reprinted 96th 2d monthly mortgage payments whose 3617, 3668.). Cong. U.S.Code & Ad.News 21,797 Cong.Rec. (1980). default.” 126 Congress enacting The clear intent of hearings before the Senate Subcom was to Housing mittee on and Urban Affairs re cost-saving alternative to the as- veal that had knowledge full signment program. program, The TMAP Stipulation” the “Amеnded between HUD designed by Congress, allows HUD to plaintiff and the class when.it enacted the part monthly payments “make all or Housing and Com mortgage” due thereby pro- under the munity Development Act: Hearings on S. temporary vide foreclosure avoidance relief the Subcomm. on Housing Before acquiring mortgage. the entire without and Urban the Senate Comm. Affairs of According to the House Committee on Banking, Housing, and Affairs, Urban Banking, Finance and Urban Affairs: Cong., 2d Sess. 674-77 law, existing “Under has Nonetheless, Congress made no mention of authority to assist homeowners who Stipulation” “Amended in the TMAP are in default on their mortgages insured legislation reports. or the committee thereby to cure the default and to avoid House Banking, Finance, Committee on However, foreclosure. before the Secre- simply and Urban Affairs stated that: tary provide (which typ- can assistance designing “In TMAP the Committee ically in the form of forebearance on a attempted has to conform closely as as portion mortgage payments), the possible existing requirements of Secretary acquire must first the mort- assignment program. What gage acquisition from the lender. The of sought Committee has to do is to assure mortgage large outlay involves a that the assistance accorded to homeown- part of the Federal Government. In programs virtually ers under both will be year fiscal 1981 it is estimated that as ap- same. In essence the two much as spent million will $55 be proaches only in actually differ who acquire mortgages. these The Commit- holds the mortgage asignment that, instances, tee —under many believes in it is the and under TMAP [sic] acquisition could be private is the lender. The Committee Department avoided if the had the au- has taken care to assure that the current

thority payments to make to the mort- structure, requirements approach gagee in an amount sufficient to cure the will not al- be default and once the default was cured to by legislation.” tered this repay have the homeowner the amounts Department. This, H.R.Rep. 96-979, advanced in Cong., No. 96th 2d Sess. essence, theory Tempo- (1980). is the of the new at 53-54 The conference committee rary Mortgage Program Assistance merely added that: (TMAP) being authorized in this ball “It is the intent of the conferees that [sic].” Program the TMAP developed as a 96-979, H.R.Rep. possibly Cong., 96th lower cost alternative 2d Sess. to the ex- isting assignment at ranking minority program____ 51-52 [T]he member of the House Bank- conferees direct that Committee on Secre- [HUD] Finance, ing, Affairs, tary implement and Urban co- TMAP in a manner that sponsor legislation, Rep. TMAP will assure that assistance under Section (R.-Ohio), Stanton stated that further 230 foreclosure avoidance relief [the

469 within the discretion of district court. accessible to less will become vision] System Wright, v. Federation who are de- deserving homeowners 368, 370-71, 642, 646-47, 81 5 L.Ed.2d S.Ct. fault.” v. (1961); Instrumentalist Co. Marine Cong., 2d H.R.Conf.Rep. No. Corps League, Cir. Cong. Sess., & reprinted in 1980 U.S.Code Fund, Inc. 1982); Environmental Defense Ad.News Costle, (D.C.Cir. F.2d Congress’ directive Pursuant 1980). judi equally clear that “sound It prescribe U.S.C. may cial discretion call modification program, avoidance the foreclosure terms of decree if the circum ... [a] implementing proposed regulations fact, stances, obtaining or whether of law Fed.Reg. 14,- program, see the TMAP changed, the time of its issuance have comments, (1982), public 495-500 received System Fed new ones have since arisen.” regulations governing published final Wright, 364 U.S. at eration v. 81 S.Ct. Fed.Reg. 33,- progrаm, see case, In the at 371. instant record codifying these final (1982). Before 252-58 plaintiff that HUD and the class reveals the district court regulations, HUD notified Stipulation” their “Amended entered into change in mo- law and submitted later, August Some thirteen months Stipulation,” modify the “Amended tion to September amended the clarifying that: program, avoidance relief Stipulation af- “Nothing in § 1715m, cost-saving to include the U.S.C. any way with the or interferes fects compliance Con implementation Department’s gress’ in 12 1715m directive U.S.C. Program authorized Public regulations implementing promulgate Law 96-399.” program, compiled proposed evidentiary hearing, the dis- Following an comment, and, public regulations, received “motion to ruled that HUD’s trict court 1982, published regulations. final August Stipulation is ... de- modify the Amended regulations, codifying these Before imple- enjoined from nied and sought Stip [HUD is] 1979 “Amended publish- proposed regulations menting the clarify that in order to HUD’s ulation” 33,252 (1982).” Ferrell Fed.Reg. ed 47 plaintiff class did not agreement with the Pierce, According v. F.Supp. at 1372. implementation 560 of affect or interfere with court, sought “what HUD program. to the district subsequently enacted TMAP the agree- modify its аttempt Stipulation” to clearly ... this The “Amended 1979 its plaintiff pro the class and com- TMAP ment with no to the contained reference exempt Moreover, Congress the so as to the full gram. mitment to Court had knowl requirements Stipulation” the entered edge TMAP from the “Amended of class, Stipulation, plaintiff is to scuttle HUD the Amended into between and of the parties’ agree the the commitment em- mention of that but made no ” legislation TMAP or the com ment in the in the Amended — bodied evidence, reports. Despite this the that mittee Id. The district court concluded the HUD’s motion to modi regula- district court denied implementation of HUD’s TMAP fy, ruling implementation regu that of the of “derogate the intent Con- tions would of “derogate the intent Con lations would mortgagors under gress rights of mortgagors gress rights of Stipulation.” Id. major- The the Amended Ferrell v. Stipulation.” court’s flawed rea- ity affirms the district Pierce, F.Supp. 560 at 1372. directly contravenes doing in so soning and implement to Congress the intent that a facts case establish The cost-saving program. TMAP subsequently TMAP result of the enacted new have arisen circumstances program, decision to It well-settled that modify a court modifiсation of 1979 grant deny a motion to warrant or decree) Stipulation.” (consent Under cost- stipulation lies “Amended approved 470 Instead,

saving program, Congress, knowledge TMAP HUD is with full authorized provide mortgagors tem- Stipulation,” default with simply the “Amended intend porary foreclosure relief without avoidance implement that HUD the TMAP acquiring mortgage. Congress the entire gram to that assure foreclosure avoidance program the TMAP of- intended would become less accessible to fered as alternative deserving homeowners in default. Con existing program already under 12 U.S.C. granted gress discretionary HUD broad au Handbook. and the HUD thority eligibility requirements to establish 96-1420, H.R.Conf.Rep. Cong., 2d “deserving term define the home Sess., reprinted in 1980 U.S.Code Cong. & Accordingly, I defer to owners.” HUD’s 21,797 3668; Cong.Rec. 126 Ad.News expertise interpreting newly enacted (1980). Furthermore, Congress mandated program promulgating regu and in TMAP imple- promulgate regulations that HUD implement cost-saving pro lations to menting separate, cost-saving See, e.g., v. FEC Democratic Sena gram. See U.S.C. program. piv- 12 1715m. Comm., Campaign torial 27, 454 U.S. 31- Congress otal intended issue whether 32, 38, 42, (1981); 102 70 S.Ct. L.Ed.2d 23 separate, сost- Co., Andrus v. Oil Shell 657, 446 U.S. saving accord with 1932, 1938-39, 100 64 S.Ct. L.Ed.2d Stipulation” “Amended and the HUD Youakim, (1980); Miller v. 593 440 U.S. governing mortgage assign- Handbook 125, 144, 968, 957, 99 S.Ct. 59 L.Ed.2d 194 ment Tollman, (1979); Udall v. 380 majority ‍​‌​‌​​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌‌‌‌​​‍reg asserts 801, 792, (1965); 85 S.Ct. 13 L.Ed.2d 616 promulgated by derogate ulations I.C.C., Illinois Cent. R. Co. v. 702 Gulf congressional intent and thus mo HUD’s (7th Cir.1983); Mary St. F.2d Stipulation” tion to the “Amended Dept. Nazareth v. Health & Human According majority, must be denied. to the Services, (7th Cir.), 1346-47 “Congress’s quite clearly intent — denied, U.S.-, cert. S.Ct. only offer TMAP in manner Tool (1983); Production v. 78 L.Ed.2d 110 assign operation consistent with the Admin., Employment Training & derogation and not (7th Cir.1982); Foulkes v. F.2d rights protected by Stipula the Amended C.I.R., F.2d n. Cir. Contrary majority’s tion.” position, 1981); Califano, McElrath F.2d Congress expressly never stated intend (7th Cir.1980). regulations implementing ed that 16, majority targets footnote testi- separate, cost-saving be in mony by support its HUD officials belief Stipulation.” accord the “Amended not intend did to “make fore- congressional evidence intent closure assistance less accessible advan- concerning regulations the TMAP is found tageous.” Contrary majority’s posi- to the in report, the conference committee where tion, Congress fully I expected note that Congress “implement instructs HUD to differences to exist between the a TMAP in mаnner that will assure that pro- and TMAP program the not be will assistance under section 230 gram, implemented by as According HUD. to deserving come less accessible home Rep. (D.-N.Y.), to Lundine a member of the owners who are in H.R.Conf. default.” Banking, Finance, on House Committee Sess., Rep. Cong., 2d Affairs, Urban co-sponsor and and a of an reprinted in Cong. & Ad. U.S.Code TMAP legislation, amendment to the the 3617, (emphasis added). News Cer program: TMAP if tainly logical Congress is intended “provide[s] with regulations authority HUD the implement for the TMAP to be to impose Stipula ed in with less restrictive interest rates accord the “Amended and tion,” Congress provide[s] a would have so stated the a means which homeown- legislation reports. receiving TMAP or the committee er assistance can shifted high- persuasive language of program if the The the 98th into the likely Congress my position the TMAP is burden under solidifies that HUD er debt promulgated regulations TMAP cause a default. in full ac to new Blanchette, Pennsylvania, regulations, from Bowsher Although “the persuasive program, gram could have such trict court’s Rep. discretion ance relief ed). over, of does not establish 1980). If been blocked increasing ment mentation among low-income homeowners.” are islation. tended, Chicago on the implementing Appropriations: an earlier representing the intent of district court’s order Cong.Rec. “The committee has learned that also Atchison T. & S. the Even I note Lundine, certainly implementing the sk inconsistent with According program, I think we will see an v. TMAP approved given to assuming that foreclosure avoid- value.” Bell v. New n. Merck, ^[*] members interpretation of the TMAP less accessible replace enactment, 21,803 number L.Ed.2d view Department’s regulations 461 U.S. the 1983 by the District program basis definitively ^[*] 75 L.Ed.2d 580 460 U.S. cost-saving (1980) of a later of the current TMAP cost-saving TMAP an effect. More- Congress, House ^[*] realized that Congress, preventing HUD of ... authorizing leg- 773, (emphasis ‍​‌​‌​​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌‌‌‌​​‍add- F. under the dis- (1983) (citing used, foreclosures it does Jersey ^[*] regulations TMAP Ry. Committee 103 S.Ct. Congress. Congress Court 103 S.Ct. meaning of such assign- (1983)). despite as in- Co. imple- ^[*] have Cir. has as judicial Hope County TMAP program anything usurping Access to furthering in this case. modification cord with the only “substantially Moreover, by negating fringement ing) rewrite our nation’s ing, lative ment the saving and the HUD attempt at 825 award dissent circumstances have arisen stead, “Amended majority’s subsequently wisely (“without it is difficult majority’s apparent predisposition program. v. history alternative to (7th Cir.1984) (Cudahy, J., regulations discretion cost-saving from the cost-saving HUD’s else”), attorney’s Justice congressional I find the intent of Stipulation” to majority the upon to enjoins engage reveals that program expeditious coming to regulations promulgated will for that of implement cost-saving absolutely no of very is an my authority enacted TMAP dictates majority’s to come to Du TMAP justified” consent housing laws, see, e.g., fees under the denies legislative the in social view, has acted 28 U.S.C. intent of Congress. as a Page, unprecedented intent. thereby imposing mortgage assign be modified. grips from manner. Sound Congress program, program, HUD was not separate, decree, requiring the unwarranted basis promulgate cost-saving implement process. legislation, grips with Congress.2 motion to seeking prudently F.2d 797 light 2412(d), dissent for the it was imple enact Equal there legis hous cost- new In in of I implementing August last substantial housing all relevant Federal laws represent Congress.” intent R.Rep. Cong., 1st Sess. H. added).

I, (1983) (emphasis Stipulation" expires August majority prevents im- opinion HUD from “Amended 2. The plementing proposed are not and thereafter the bound period Stipulation.” the "Amended majority opinion. for the Majority opinion n. 17. Note that

Case Details

Case Name: James and Joyce Ferrell v. Samuel R. Pierce, Secretary of Department of Housing and Urban Development

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 14, 1984

Citation: 743 F.2d 454

Docket Number: 83-2038, 83-2677

Court Abbreviation: 7th Cir.