The Secretary’s contrived regulations cumulatively and effectively exclude any evidence that would convey, what is the purchaser’s primary right under the MHCSS Act. Whether the first purchaser has any rights whatsoever, under his regulations is ambiguous at best. He mentions once only that they MAY have a right under the MHCSS Act (24 CFR 3282.14(a)(3)), but never at any time expands on this, implies, or otherwise references the MHCSS Act. The use of the term ‘May’ in the context used by the Secretary creates administrative discretionary authority where no such discretion exists under the enacting Statute.

All other rights mentioned by Congress are incidental to ensuring that the manufacturers or any agents thereof do not violate the rights of the purchaser under the MHCSS Act.

The Secretary, while not recognizing the expressly stated rights afforded to the purchasers of manufactured homes, does recognize the remedies afforded dealers or distributors under 42 USCA §5412, and alleges that 42 USCA §5412 (§613) of the Act gives him the authority to enforce such remedies [1].

As expressed in 42 USCA §5412, “If any manufacturer fails to comply with the requirements of subsection (a) of this section”… the dealers or distributors must “bring an action seeking a court injunction compelling compliance with such requirements on the part of such manufacturer. Such action may be brought in any district court in the United States in the district in which such manufacturer resides, or is found, or has an agent”…(42 USCA §5412(b)). Hence, the Secretary does not have the authority under this section, or any other under the MHCSS Act, to take any action towards enforcing such dealer remedies. As expressed in 42 USCA §5412, the dealers are on their own. To avoid a lengthy discussion on this subject, suffice to say that the Secretary has impeded the dealer or distributors access to the prescribed remedies by contriving “determination” into a regulatory nightmare. Moreover, he has changed “court of appropriate jurisdiction” to “court of competent jurisdiction,” thereby affording the Secretary with the means of deciding which courts are competent to make such a determination. Perhaps the Secretary’s would deem his Administrative Law Judges to be a competent jurisdiction, thereby affording him with the means to gerrymander the determination, or disregard it all together if the ruling stands as obstacle to his and his manufacturers’ objectives.

The Secretary took the relatively quick, simple, and inexpensive process and contrived an overtly long, complicated, and costly regulatory maze between the dealer and his or her right to seek relief under 42 USCA §5412 [2]. The Secretary’s apparent objective is clearly to compel the dealer or distributor to remain silent. Just bury head in sand and take the manufacturer’s [label of compliance] at face value.

Such dealer or distributor seeking such an injunction would also be entitled under 42 USCA §5412 to reasonable reimbursements for delays related to the nonconformance, to damages (at the courts discretion), and reimbursement for ALL court costs and reasonable attorney fees. Failure by the manufacturer to comply with such an injunction is not a violation of the MHCSS Act (see §5409(a) & §5412). Congress as well does not authorize the Court to hold a manufacturer in contempt for refusing to comply with an injunction issued under the authority of 42 USCA §5412 (see 42 USCA §5411(b) & §5413(d)). Hence, the dealer or distributors right to relief is unenforceable under the authority of the MHCSS Act, and therefore, unenforceable by the Secretary.

Had the Secretary bothered to implement 42 USCA §5411, under which, the manufacturer could be fined and/or jailed for their violation of the MHCSS. While this does not provide monetary relief for the individual dealer or distributor, nonetheless, it provides remedy equitable to that, which is afforded to the first purchaser of the manufacturer’s manufactured home, should the manufacturer refuse to correct any defects in any manufactured home by him or her.

The odds of a dealer or distributor being caught for selling a noncompliant manufactured home are close to zero. The Secretary, manufacturers, and dealers simply claim, as evidenced by the manufacturer’s label of compliance that such complied when it left the self-imposed boundaries of the Secretary’s jurisdiction, seemingly barring any meaningful action against a manufacturer or any sales agent thereunder, by him or his SAAs.

The Secretary or SAA would have to have undisputable evidence that the manufacturer informed the dealer or distributor that such home did not comply (fat chance), or evidence that transit damage occurred, which a reasonable dealer or distributor would have reason to know existed prior to the completion of the sale.

There is no requirement in the Secretary’s regulations that a dealer or distributor supervises the delivery and setup/installation of the manufactured homes they sale [3]. The common defective practice is to allow the dealer to pass the buck on to another largely unqualified person – the transporter/installer. Absent a requirement to supervise or exercise due care, did they have reason to know that such damage occurred prior to the completion of the sale? Have all of the goods and services agreed upon been delivered under the Secretary’s regulations, if a manufactured home with transit damage is delivered to the purchaser?

The Secretary, the manufacturers, nor the dealers have anything to worry about from purchasers whom are delivered defective merchandise. Under the Secretary’s regulations, the purchasers are dumped into the never-ending loop, for which the Secretary provides no means of escape, as he does for the dealers or distributors. This loop cannot have any purpose other than to fatigue the purchasers into giving up their pursuit of their lawful right to a manufactured home that complies with all applicable MHCSS. However, if the purchaser gives up, the case, if a case file is actually opened, is automatically deemed by the Secretary to have been equitably resolved or cured by the manufacturer or any subordinate agent thereof – case closed. Simply stated; and for reasons that will be apparent later on – it never happened.

“Manufactured home construction” and “Manufactured home safety” by their nature make the manufacturer responsible for the performance of their product, which they can only assure through legitimate or effective oversight:

This can only be done by responding “in good faith” (42 USCA 5414(a)) to consumer complaints, and through legitimate, and objective review by building code officials of such performance evaluations. Performance extends the manufacturer’s liability for his or her product to the home site (emphasis added). The Secretary’s duty for ensuring that manufactured homes meet a reasonable standard for the durability, quality, and safety (performance) of such manufactured homes, would extend however far the manufacturer’s responsibility for the performance of their product extended.

Hence, to highest extent possible he has separated himself from any accountability for failing to “insure” the public that manufactured homes meet “a reasonable standard for the construction, design, and performance of a manufactured home.”

There is no question as to whom the 93^rd Congress intended to protect with the enactment of the MHCSS Act of 1974, and to leave no doubt Congress gave the purchasers rights under the MHCSS, giving such persons protected class status. Moreover, Congress expressly prohibits any person from using the Private Law Merchant jurisdiction (contracts or agreements) as a means of circumventing or waiving the rights of the purchaser under the MHCSS Act, thereby ensuring that Congress’s full purposes and objectives are not undermined.

It has been contended that Congress did not provide the purchaser with the right to private cause of action for a manufacturer’s violation of their primary right or remedial rights under this chapter, and despite compelling evidence to the contrary [see endnote i], thus far the Federal Courts have agreed.

The contention, ironically raised by the industry and its allies (in their opinion), was that manufactured home purchasers lacked the sophistication to deal with shady trial lawyers seeking to pursue frivolous lawsuits against manufacturers for failing to comply with the MHCSS. If this were true, then by this same measure the purchasers would lack the sophistication to deal with shady manufacturers, their dealers, and their swarms of corporate lawyers, whom delivered to them manufactured homes that did not comply with all applicable MHCSS. Include the fact that the Secretary is acting as an agent for the manufacturer’s, and the field so grossly favors the industry that the vast majority of purchasers have no means whatsoever for obtaining relief.

In the light of this undisputable opposing view, ending in the same result, and the express prohibition against using the Private Law Merchant jurisdiction to circumvent the Congressional purposes and objectives of the MHCSS Act, it is a reasonable conclusion that Congress did not intend that the purchasers should have the right to waive their rights under this chapter.

It would be defeatist of the Congressional objective if the purchaser had the right “to sacrifice some…protection in exchange for lower housing costs”, …“a consumer choice option that would sacrifice the safety of innocent people who would be given no choice in the matter” [5].

As a protected class [6], the Secretary, not as a federal agency head, but as a building code official, owed a “special duty” [7] to the purchasers of the products produced under the supervision of his building code jurisdiction. Simply, by establishing purchasers as a protected class, the MHCSS Act made the Secretary, including SAA directors/employees, as building code officials under the Secretary building code jurisdiction, directly liable to the first purchasers should such official act outside of the scope of his or her authority, or fail to act within the scope of his or her authority under the enacting statute (emphasis added) [8].

The term “occupant(s)” appears in 24 CFR 3282.7(j), (ff), 3282.410(f), 42 USCA §5414(c), (g)(1) (see Halvorson v. Dahl, 89 Wash2D 673 at 676, 574 P2d1190, (1978)

It is unknown if Congress intended that the Secretary be directly accountable to the purchasers or if it was an unforeseen consequence of entering into a preemptive field historically belonging to the States or local jurisdictions, where the Federal government had little quantitative experience. Nevertheless, no legislative changes were made until the year 2000 to create the appearance that Secretary did not owe a “special duty” to the purchasers of the manufactured homes. In spite of these recent changes, the Secretary’s contrived interpretations of the MHCSS Act were largely unchallenged by the complacent or anyone that had the resources to give such challenge any consequence, so there really was no reason for him to bring his enterprise into the light by seeking legislative changes.

2
It is noteworthy to mention that the Secretary substituted “court of competent jurisdiction” for “court of reasonable jurisdiction”. Congress strongly implies that a court of reasonable jurisdiction is the district court wherein the manufacturer resides, or is found, or has an agent. It is unclear what the objective was behind the Secretary’s substitution, but it allows for the question to be raised as to whether a court was competent to enter a valid judgment against the manufacturer, whereas under the MHCSS Act, any judgment by a court of reasonable jurisdiction against the manufacturer would have been made by a court of competent jurisdiction.

5
the manufacturers contend that because … risks cannot be eliminated completely, consumers must be given the informed option to sacrifice some … protection in exchange for lower housing costs… What the manufacturers propose would be the equivalent of allowing automobile purchasers to buy at a discount automobiles with unsafe brakes, a consumer choice option that would sacrifice the safety of innocent people who would be given no choice in the matter. “Finally, and most fundamentally, the consumer's "right to choose" is not a criterion for decision making under the Manufactured Housing Act.” [United States Court of Appeals, Eleventh Circuit, No. 94-2307, June 12, 1995].

i
I take it that is one of your principal objections to this bill, that it would permit people to sue for damages and that kind of recourse, but that you say in your testimony that there is no assurance that when a mobile home leaves the plant that it meets the standards” Senator Proxmire, July 24, 1973, Committee on Banking, Housing, and Urban Affairs, pg. 1056.

Comment 1: Senator Proxmire was addressing Mr. Bruno with Underwriters Laboratories – Mr. Bruno was part of a delegation from North Carolina, which included the NC Commissioner of Insurance and the Engineer for the Engineering and Building Codes Division – each member repeatedly addressed industry leaders or representatives as “my” or “our” friend(s), indicating that a relationship beyond regulator - regulated existed.

Comment 2: There is no evidence based on the content of the bill being discussed on the day of this testimony, or otherwise on the public record, to the date of enactment to conclude that Congress took any action to exclude “this bill, that it would permit people to sue for damages and that kind of recourse.” It is noteworthy that the author of the legislation, Senator Brock, emphatically chastised Mr. Bruno, as he was the only remaining representative from the NC delegation, for making many statements about the legislation, which Senator Brock characterized as downright false, and he outright accused the North Carolina delegation of intentionally trying to mislead members of Congress. Senator Brock addressed each such false assertion methodically, of which, the contention that the bill would allow, “people to sue for damages and that kind of recourse” was not contradicted by the Senator (Emphasis added). Given the historical record strongly implies that such recourse was permissible under the legislation prior to enactment, and that the legislation under went no changes from the date of this hearing until enactment that would have an effect on such right. It is not expressed that such right does not exist. The decisions thus far by Federal Court Justices denying private cause of action have been semantic. There is substantive evidence that such private action is permissible for violations of the MHCSS in State Court (42 USCS §5421). It is safe to say that even if the Federal Courts recognized this reality, that without posing this question, they would not have been compelled to make it known that this was in fact permissible under the Statutory construction of the MHCSS Act.