PART 14 -- CONSUMER PROTECTION – NOT

Before moving on, clarification is needed on a few of points. First, the phrase “class of manufactured homes” will be mentioned herein to describe actions occurring under the Secretary’s regulations. However, while appearing in the Secretary’s regulations, such phrase has ABSOLUTELY NO STATUTORY STANDING, nor does Congress imply in any way, or in any context whatsoever, that a class of manufactured home must be affected to give rise to the enforcement of the MHCSS, which includes notification and correction by the manufacturer under 42 USCA §5414. Congress says, “Any defect in any manufactured home” (42 USCA §5414(a)) gives rise to notification and correction by the manufacturer, which is one or more within the reason of any [sane mind]. The notion of a “class of manufactured homes”, meaning that “ANY” means “MANY”, is entirely contrived from [the mind of the Secretary].

Second, the Secretary has further contrived the MHCSS Act by actually changing, and thereby weakening the very definition of “defect” (42 USCA §5402(3)), as defined by Congress. He did this by subdividing Congress definition of “defect” into “defect” and “serious defect” (see endnotei). Congress struck the term “substantial” from their legislation wherever appearing before the term “defect,” and struck the limitation for a manufacture’s responsibility for correcting defects in their products to whether or not “the cost would be substantial.” It was arbitrary, capricious, and deleterious for the Secretary to introduce a term, and use it in context that gives it virtually the same meaning, and is equally ambiguous by its nature (emphasis added), and to use it in a manner that gives it the identical effect to which Congress in the light of day, struck from their legislation.

Beyond any reasonable doubt, Congress expanded the coverage of their legislation to include notification, and correction of any defect in any manufactured home at no cost to the owner, which could be related to any error in the design or construction of the manufactured home by the manufacturer. This would be true regardless of whether the defect was substantial or serious, and the cost of correcting such defect would be substantial or serious.

The cumulative toll of his abuse here alone has caused significant and unconscionable financial hardship, and in some cases bodily injury or death, to 10s of thousands, and more likely, 100s of thousands manufactured home purchasers. Being very generous, using the number six million from earlier, and using the industry’s and HUD’s claim that only about 10% per year (not including all the cases they discarded) of manufactured home purchasers have problems with their purchase, this would be 600 thousand. Dividing by three, given some were resolved, or at least the purchaser accepted what was done out of either frustration or lack of knowledge, this would be approximately two hundred thousand families. Approximately 200 thousand families have suffered significant and unwarranted financial losses, and in some cases bodily injury or death, as a direct result of the Secretary’s and his manufacturers unconscionable self-serving activities.

• Contra legem facit qui id facit quod lex prohibit; in fraudem vero qui, salvis verbis legis, sententiam ejus circumvenit – A person acts contrary to the law who does what the law prohibits; a person acts in fraud of the law who, without violating the wording, circumvents the intention [The Digest of Justinian. 1.3.29, T. Mommsen et al.]

• Idem est facere et non prohibere cum possis; et qui non prohibit cum prohibere posit in culpa est (aut jubet) – It is the same thing to commit an act and not to prohibit it when you can; and he who does not prohibit when he can prohibit is at fault (or does the same as ordering it to be done).

Finally, the Secretary’s regulations are a maze of misdirection. For example, it states in 24 CFR 3282.416 that:

• The IPIA in each manufacturing plant shall be responsible for assuring that notifications are sent to all owners, purchasers, dealers, or distributors of whom the manufacturer has knowledge under Sec. 3282.211 or otherwise as required by these regulations, and the IPIA shall be responsible for assuring that the required corrections are carried out by auditing the certificates required by Sec. 3282.412.

Note: It is important to note that the IPIAs as a group, consistently avoid and disavow this responsibility, and are not held accountable for not complying with this regulation by the Secretary, the Secretary’s agent, or most SAAs

The Secretary’s regulations are riddled with content of this same nature, which is designed to mislead consumers or individuals into believing that Secretary can or will take action, either of his own accord or on their behalf, to force a manufacturer to provide repairs to their manufactured home. While some arbitrary discovery of defective manufactured homes may conclude with the repair of manufactured homes, which may include some owned by consumers, this is not the intent of the Secretary’s regulations, but an unavoidable consequence of his systems failure in a particular case, to conceal (emphasis added) defective manufactured homes from the light of day.

As will be discussed, he has designed his regulations to the maximum extent possible, to impede consumers or individuals from obtaining remedy by any means, including in the State Courts.

With these points clarified, the Secretary still had a major problem! The Secretary’s system of regulation was absent any meaningful deterrent against quid pro quo, absent reasonable government inspections or inspections by private organizations under contract with government [1], absent legitimate conflict of interest safeguards, and by his choice, excluded a vitally important activity directly related to the “ability of the basic manufactured home to comply with the standards” – setup/installation. Any one of these would result in a notable disparity between the number of injuries and/or deaths to occupants of manufactured homes and site built housing. The combination would make the disparity so significant that it would be hard for the Secretary to explain (revisit endnote B) if his regulations expressed or overtly implied their objective was consumer protection.

This disparity would make it apparent that his program was designed to serve the partialities and corruptions of the manufacturers and not about consumer protection [2]. (See endnote ii for the affect of the MHI Act of 2000 on the consumer safety objective of the MHCSS Act of 1974)

In a 1977 Tennessee Law Review article, written by Bailey H. Kuklin [3], it was said that:

• “The adequacy of the manufacturer's warranty has also been criticized. Ambiguously worded and designed to protect the manufacturer rather than the consumer, most warranty provisions have disclaimed all implied warranties, including that of merchantability, and have left the owner with little other protection. Compliance with the terms of the warranties has been difficult and the prescribed procedures appear to be designed to deter claims.”

A better summary could not have been written for what the Secretary’s regulatory program by gradual and well-timed advances came to represent. Ambiguously worded and designed to protect the manufacturer rather than the consumer. It should be noted that the manufacturers’ warranties, while more cleverly worded, are today exactly as described in 1977, which makes one wonder where the FTC has been. Perhaps the FTC has been too busy promoting the acceptance of the politically powerful industry’s substandard merchandise, to concern itself with protecting the consumers against the DECEPTIVE TRADE PRACTICES being used to lure consumers into buying the Industry’s substandard merchandise.

It is fair to say that the vast majority of the Secretary’s State Administrative Agencies (SAA) are nothing more than a reflection of his policy, but then the SAA directors at large are quasi Federal agents acting under the pretense of their State employment status, to promulgate the Secretary’s usurping policies [4]. Perhaps their undying allegiance to the Secretary arises from the fact that the vast majority of SAA directors, to serve their own partialities and corruptions (protecting their paychecks and retirement pensions), have sat idly by while the Secretary of Housing illegally redirected untold millions of dollars into his coffers. Dollars which rightfully belonged to States approved by him under 42 USCA §5422 (SAA) [5].

• Extra territorium jus dicenti non paretur impune – One who gives a judgment outside of his jurisdiction is not obeyed with impunity. Anyone who executes such a judgment may be punished. [10 Coke 77]

The State politicians at large have not been any less susceptible to the corrupting influence of the manufactured housing industry’s money [6], which may give some insight to why some SAAs have debauched themselves into the persuasion that going along to get along, regardless of the consequences to the purchasers of manufactured homes, is lawful behavior. However, to give the benefit of the doubt to elected State officials, the manufactured housing industry has done a superior job of hiding their corrupt objectives from lawmakers under the veil of a noble cause – affordable housing (see discussion at the beginning of page 43 for – industry meaning of “affordable”).

The 1974 MHCSS Act was undoubtedly consumer safety legislation, so how would the Secretary go about ridding his regulations of ‘consumer protection’, while retaining the some appearance that his program has a consumer protection objective?

History had already proven that the States political bodies would not come together to protect their own citizens, much less the citizens of other states, from merchandise that did not meet a reasonable standard for the design, construction, and performance of such products. If they had, there would have been no need for federal legislation to provide for this protection. With this knowledge, the Secretary simply dumped all “consumer protection” responsibilities onto his SAAs. Then, as insurance to deter any rouge State, which might attempt to afford meaningful consumer protection to its citizens, erected obstacles (his “exclusive system of enforcement”) to assure that his and his manufacturers full purposes and objectives would not be significantly impaired by any such State.

It should be noted that in the absence of Federal regulations designed to block or impede States from affording consumer protection; it is fair to say that at least some States would afford greater protection than what is being afforded by the Secretary of Housing. Then, as will be apparent in a moment, anything greater than zero is an improvement over what the Secretary provides. Worst case, in the absence of the Federal program, nothing whatsoever changes. However, this is unlikely in the absence of a Federal regulatory scam overtly designed to impair the purchaser’s right to seek relief in a common law court (7^th amendment of the U.S. Constitution).

• 24 CFR 3282.11(c) “A State may establish or continue in force consumer protections …,which respond to individual complaints … and so do not constitute systems of enforcement of the Federal standards, regardless of whether the State qualifies as an SAA or PIA.”

First, as implied by consumer, such person has already purchased a manufactured home, and as implied by “individual complaints,” such person has been unable to obtain from the manufacturer, or any agent thereof, what they consider adequate repairs, if any, for the defects in their purchase. Otherwise, such consumer would not have been compelled to file such a complaint. Hence, his regulation is aimed solely at excluding from his jurisdiction or system of enforcement, every [one] or every individual who purchased a manufactured home.

Next, he deploys misdirection by implying that two or more “consumer[s]”; in so much as he is expressing that only the “individual” is excluded from his “exclusive system of enforcement,” would fall under his jurisdiction. This contrived language was designed to convey the notion that his regulatory program has a consumer protection objective, which it simply does not.

It is simple mathematics; if his jurisdiction or system of enforcement for the federal standards excludes all individuals (consumers), then it is a mathematical impossibility for any [one] to be included. Restated, an infinite number of ones (1s) can be inserted into his equation, expressed as (c x 0 = y), and the output is still ZERO (0). His “exclusive system of enforcement” excludes every [one] because it includes no [one] [7].

Consumer protection arises from a State or Federal statute designed to protect consumers against defective or dangerous goods (emphasis added), hence, consumer protection law.

With this understood, while he addresses the individual consumer in 3282.11(c), they are not the real target of his exclusion. It is the – manufactured homes – purchased by such consumers or individuals that are the surreptitious target of the Secretary’s exclusion. This is supported by the second paragraph under 24 CFR 3282.404(c), which in combination with 24 CFR 3282.402(d), provides the manufacturer with the means to exclude any manufactured home that has left the factory with a label, from the Secretary’s “exclusive system of enforcement” for the MHCSS. Let us see, the way with the potential for consequences, even though slight, for acting in bad faith, or the way where there is no potential for any consequences for acting in bad faith. This is a tough one…what to do?

• 24 CFR 3282.404(c) (undesignated) However, Where only one manufactured home is involved, the manufacturer need not submit the plan if the manufacturer corrects the manufactured home within the 20 day period…

• 24 CFR 3282.402(d) When manufacturers act under Sec. 3282.404 of these regulations, they will not be required to classify the problem that triggered their action as a noncompliance, defect, serious defect, or imminent safety hazard.

With two exceptions, if the manufacturer does not classify the defect as a noncompliance, defect, serious defect, or imminent safety hazard, not only is 24 CFR 3282.404 meaningless, the entire breath of his remedial regulations (Subpart I) are meaningless. The first exception is administrative action under CFR 3282.407, which will be discussed later. The second exception – enter the Secretary’s undesignated or second subparagraph under 24 CFR 3282.404(c).

This provides that if a defective manufactured home is involved, the manufacturer need not comply with MHCSS Act. As stated in 24 CFR 3282.402(d), the manufacturer can forego issuing the notification under 42 USCA §5414, as mandated by Congress, by forgoing under the Secretary’s regulations, what is necessary to initiate the process for notification, under §5414. In this manner, the production of official records of any defective manufactured homes owned by any purchasers is avoided; thereby, denying the public any public records with which to determine the manufacturers “level of compliance with all applicable Federal manufactured home standards” (42 USCA §5425(a)(3) [8]).

Fixing the defect(s) in 20 days does not sound bad; but the manufacturer opts out from under the Secretary’s regulations before any official action occurs under his regulations, hence, there is no officially recorded starting date on any official/auditable record. How does anyone know if the manufacturer repaired the defect(s) in 20 days, 1 month, 1 year, or ever? The manufacturer can run the consumer in circles for months on end, blaming the dealer, installer, and transporter, and they all the while blaming each other, in an attempt to fatigue the consumer into giving up their lawful right to a manufactured home that complies with all applicable MHCSS (common practice). He or she can open such internal invoice and leave it undated until he or she is ready to date such unofficial quasi report (reports of this practice), thereby creating the illusion of compliance. He or she can dispose of such original invoice if dated, and replace it with one bearing a later date (reports of this practice) thereby creating the illusion of compliance.

Did the manufacturer provide repairs that effectively addressed the root cause, or repairs that simply glossed over or hid the root cause of the defect(s)?

The Secretary requires that the manufacturer maintain a complete record of the correction, but then qualifies that complete only means a vague or brief description of what they did unofficially to correct the problem. The Secretary does not require as part of this complete, but vague record of the manufacture’s unofficial action, that the manufacturer include the determination of the root cause. Such root cause determination would be essential for he or his SAAs to objectively review the alleged remedy to determine if it was adequate to “completely remove” such defect, which the manufacturer was not required to officially classify on any auditable/official record.

The Secretary says that the file containing such record of the manufacturer’s unofficial action should be stored somewhere in the plant, but qualifies that they should not be stored with any records of official actions required under his regulations.

How long should the manufacturer keep these records of unofficial actions? The Secretary does express that the records of official actions under certain sections, which does not include those related to any unofficial actions under 24 CFR 3282.404(c), should be kept for 5 years. It is completely ambiguous as to whether such records of unofficial actions under 24 CFR 3282.404(c) should be kept at all. There is no apparent consequence under the Secretary’s regulations should a manufacturer dispose of such unofficial and vague records before 5 years, but then, there is no apparent consequence for disposing of official records before 5-years. With this, what deterrent is there against a manufacturer disposing of any records of their unofficial actions, where their bad faith may be apparent, or simply writing up statements that conveyed the illusion of good faith?

The manufacturer is not required under the opt-out method to certify that said, “repair was made to satisfy completely the standards in effect at the time the manufactured home was manufactured…” (24 CFR 3282.412(b)), so providing shoddy repairs to purchasers does not violate the Secretary’s regulations, but then issuing a false or misleading certification, with the exception of the certification for excluded structures, is not a violation of the Secretary’s regulations. Moreover, given that it would be virtually impossible to determine if any statement in such record of unofficial action were false or misleading, based on nothing more than a vague or brief description of the repair, such a consequence would be largely meaningless if it existed.

Void of root cause determination, and reasonable and objective review by Government officials to ensure adequate repairs in good faith, what prevents the manufacturer from asserting that the purchaser is being unreasonable regarding the adequacy of the repairs they provided, if any were provided. The manufacturer could also erroneously claim that the purchaser is refusing to allow them to try yet again to correct the defect(s). With this claim, even if a complete fabrication, the Secretary upon the word of the manufacturer alone, deems the defect(s) remedied by the manufacturer and officially closes the consumer’s unofficial complaint (24 CFR 3282.412(b)(2)). The Secretary does say that the manufacturer should certify that the purchaser is refusing to allow them to repair the home. However, as with any certification by the manufacturer under the Secretary’s regulations (with the exception of “excluded structures”), there are no apparent consequences for issuing a certification that is false or misleading in a material respect. As well, the Secretary does not express, nor does he in practice, investigate to determine the circumstances that led to the purchaser’s refusal, if such refusal is not a complete fabrication by the manufacturer, to allow the manufacturer to make repairs [9].

In most cases, consumers say that before filing a compliant with a government agency that the manufacturer had been given several opportunities to correct the defect(s), only to leave their home in worse condition than it was before each such attempt. How much property damage by the manufacturer or any agent thereof, must a purchaser incur before they have the right to refuse repairs by individuals whom are only causing further damage/injury to their property? Remembering, as argued by the manufacturers, they only consider the consumer purchase price, which by its nature excludes quality, durability, and safety (performance). Could shoddy repairs be deliberate if it were apparent to them that the cost of completely removing the defect would be substantial or serious? In so much as surreptitiously damaging the property would likely hasten the purchaser to refuse further access to their property, this course could afford the manufacturer with a means of invoking 24 CFR 3282.412(b)(2). The Secretary’s regulation at 24 CFR 3282.412(b)(2) is completely unguarded against such fraud and/or abuse.

The Secretary says under 24 CFR 3282.405 that his SAA has a responsibility to review the manufacturer’s records to determine manufacturer compliance with 24 CFR 3282.404, but then qualifies that only the records required by 24 CFR 3282.404(b) need to be reviewed to fulfill their obligation or responsibility under 24 CFR 3282.404. Does the SAA meet his or her responsibility if he or she quickly scans, if at all, the vague or ambiguous records of the manufacturer’s unofficial actions under 24 CFR 3282.404(c)? The Secretary also says that the SAA has a responsibility to review the manufacturers plan under 24 CFR 3282.404(c), but void of classification (24 CFR 3282.402(d) & 3282.410(b)), there is NO manufacturer plan for the SAA or the Secretary to review.

Even if an SAA went beyond the Secretary’s minimum requirements for evidencing responsibility under his regulations, in the absence of diagnosis, determining after the fact based solely on a vague description of the treatment, whether the treatment was adequate to cure the illness (emphasis added), if possible at all, would be a capricious endeavor.

In short, the opt-out rule under 24 CFR 3282.404(c) forgoes in the production of such records of unofficial action, all acceptable or reasonable accounting/auditing procedures, which would be essential for determining and/or guarding against fraud and/or abuse.

• Idem est facere et non prohibere cum possis; et qui non prohibit cum prohibere posit in culpa est (aut jubet) – It is the same thing to commit an act and not to prohibit it when you can; and he who does not prohibit when he can prohibit is at fault (or does the same as ordering it to be done).

Hence, the Secretary encourages his manufacturers to commit fraud and/or abuse against the purchasers of manufactured homes.

• 24 CFR 3282.256(a) When a distributor or dealer believes that a manufactured home in its possession which it has not yet sold to a purchaser contains an imminent safety hazard, serious defect, defect, or noncompliance, the distributor or dealer shall refer the matter to the manufacturer for remedial action under Sec. 3282.415. If the distributor or dealer is not satisfied with the action taken by the manufacturer, it may refer the matter to the SAA in the state in which the manufactured home is located, or to the Secretary if there is no such SAA.

• (b) Where a distributor or dealer receives a consumer complaint or other information concerning a manufactured home sold by the distributor or dealer, indicating the possible existence of an imminent safety hazard, serious defect, defect, or noncompliance in the manufactured home, the distributor or dealer shall refer the matter to the manufacturer.

• Important note: While 3282.256 references 3282.415 “Notices, bulletins and other communications”, it is believed that such reference, while an error with implications, is nonetheless an error. 3282.415 does not provide directly or indirectly by reference or otherwise, any course for the dealer or distributor to obtain remedy from the manufacturer, whereas 3282.414 provides for just such remedies, as expressed in 3282.256. Given the Secretary’s use of misdirection to hide the heinous nature of his policies regarding the legal first purchasers, as it relates to dealers or distributors, it is unknown if this error has been used to prevent any dealers and distributors from referring the matter to him or his SAA for official action under 3282.407.

The Secretary’s opt out rule would also “impact” the dealers and distributors. However, as stated in 24 CFR 3282.252(a), the Secretary does provide a procedure by which such dealers and distributors (individuals) can advance their case, even if only ONE manufactured home is involved, if they are “not satisfied with the action taken by the manufacturer” (emphasis added). Hence, if these individuals (dealers or distributors) believe the manufacturer acted in bad faith, in correcting the defects in the product(s) delivered or sold to them for purposes of resale, they can refer the matter to the SAA or Secretary for administrative action or determination under 24 CFR 3282.407. It should be noted that 24 CFR 3282.407 is cast in the likeness of 42 USCA §5414(e), which the importance of this will be apparent shortly.

• 24 CFR 3282.401(e) – “It is the policy of these regulations that all consumer complaints or other information indicating the possible existence of an imminent safety hazard, serious defect, defect, or noncompliance should be referred to the manufacturer of the potentially affected manufactured homes…”

• 24 CFR 3282.403 – “When a consumer complaint or other information indicating the possible existence of a noncompliance, defect, serious defect, or imminent safety hazard is received by a State Administrative Agency or the Secretary, the SAA or the Secretary shall forward the complaint or other information to the manufacturer of the manufactured home in question.”

As stated in the Secretary’s policy, he does not provide the same for the consumer – they can file another complaint if not satisfied with the action taken by the manufacturer. As expressed, it is the policy of the Secretary’s regulations that such consumer complaint regarding “any defect in any manufactured home” (42 USCA §5414(a)) be ‘forwarded’ to the manufacturer, where once again, the manufacturer can opt out under 24 CFR 3282.404(c), and so this purposely-contrived loop continues forevermore. The Secretary’s objective is clearly to deter claims and to prevent the production of documents that would be needed by the purchaser, if all else fails, to pursue the remedy available under 42 USCA §5421.

The Secretary uses contrived language in 24 CFR 3282.156 to convey the notion that a consumer has a means of advancing a case, akin to that which he provides for the dealers and distributors [10]. He says, “Any person may petition the Secretary in writing to open an investigation into whether noncompliances, defects, serious defects, or imminent safety hazards exist in manufactured homes.” Consumers, who have requested that the Secretary take action under 24 CFR 3282.156, are baffled by the Secretary’s apparent rejection of their request for investigation or determination (defect classification).

The Secretary’s regulations are directed at protecting those whom the manufacturer sells or delivers his or her merchandise to, which under his contrived regulations are the dealers and distributors. The bona-fide first purchaser has no right under the Secretary’s regulations to remedy unless their manufactured home is a part of a “class of manufactured homes,” and then only if their home contains a ‘substantial’ or “serious” defect. With this understood; he does not say “manufactured home” (singular) in 24 CFR 3282.156, he says “manufactured homes” (plural), meaning a “class of manufactured homes” (24 CFR 3282.404(a)). If an individual is petitioning for an investigation of their home, the Secretary treats such requests/petitions as a consumer complaint; hence, such petitions are forwarded to the manufacturer, where the manufacturer can of course opt out under 24 CFR 3282.404(c).

It is vitally important to understand that the Secretary defines “any manufactured home” under 42 USCA §5412 to mean one or more manufactured homes when it is applicable to the individuals comprising the dealers or distributors of the manufacturer’s manufactured homes.

On the other hand, the Secretary defines “any manufactured home” under 42 USCA §5414 to mean more than one manufactured home (class of manufactured homes) when it is applicable to the individuals comprising the purchasers of the manufacturer’s manufactured homes.

The Secretary’s arbitrary and capricious distinction denies significant protection to purchasers of manufactured homes that would otherwise be available, even under his contrived regulations (emphasis added), in the absence of such arbitrary and capricious distinction.

This gross inequity clearly violates the Equal Protection Clause of the Constitution of the United States.

Under the scope and purpose of the Secretary’s remedial subpart I, he states:

• 24 CFR 3282.401(b) …Notification and correction may be required to be provided with respect to manufactured homes that have been sold or otherwise released by the manufacturer to another party.

As stated earlier, the Secretary’s regulations are a maze of misdirection, with the ominous meaning of seemingly timid statements in one part, hidden in other parts that due to clever wording, seem on the surface to be unrelated.

The manufacturers allege openly that their customers (consumers) are the dealers and distributors who purchase their merchandise; what their customer does with their purchase is not their responsibility. Simply stated, once they affix their label of compliance and have delivered it, meaning that such has been accepted by their alleged end customer (dealer or distributor), they allege from henceforth to be no longer legally responsible for the property or the condition thereof.

This notion is actually supported by the Secretary in 24 CFR 3282.414(a) where he explains who he means by “another party” in 24 CFR 3282.401(b).

• 24 CFR 3282.414(a) The manufacturer is responsible for correcting any failures to conform and imminent safety hazards which exist in manufactured homes which have been sold or otherwise released to a distributor or dealer… This responsibility generally does not extend to failures to conform or imminent safety hazards that result solely from transit damage that occurs after the manufactured home leaves the control of the manufacturer…

In the absence of any evidence that a purchaser is encompassed within “another party”, “To another party,” is simply a surreptitious way of saying “that have been sold or otherwise released by the manufacturer to a distributor or dealer.”

The meaning of “Released” within a legal framework means, “To give up or surrender to someone else” (Webster’s College Dictionary, Fourth Edition). “Sold”, in the context used by the Secretary, means that possession and title (emphasis added) have passed to the buyer immediately upon completion of the bargain or delivery of merchandise. Hence, the manufacturer, upon sale or otherwise releasing his or her manufactured home to the dealer or distributor, they have surrendered to the dealer or distributor any “right, title, or claim” (Black’s Law Dictionary, 7^th Edition – “release”) to the property. Hence, the manufacturer’s product “leaves the control of the manufacturer” [11].

Fundamentally, “released” and “sold” are on in the same under the Secretary’s regulations, hence, “sold or otherwise released,” and both imply that the merchandise has left the manufacturer’s control or is NO longer firsthand from the manufacturer.

Simply stated, under the Secretary’s contrived regulations it is no longer the manufacturer’s manufactured home, but the dealer or distributor’s manufactured home, and forthwith, what the dealer or distributor does with, or to their property or manufactured home, is not the Secretary’s or manufacturer’s responsibility.

Consistent with this contrived notion, the Secretary conveys in 24 CFR 3282.401(b) that his regulatory objective is to afford notification and correction to dealers or distributors (“another party”). If such manufactured home has already been sold or otherwise released by the distributor or dealer to another party, and such has been determined by the manufacturer, Secretary, or SAA to be part of a class of manufactured homes, then the Secretary or SAA MAY also require that notification be provided to the customers of the dealer(s) or distributor(s).

As stated, correction of any defect or failure to comply with the MHCSS in any manufactured home is available to the dealer or distributor on a per home basis. This includes any defect that poses an imminent and unreasonable risk of injury of death or imminent safety hazard to the dealer or distributor (insane, but nonetheless the course navigated under the Secretary’s regulations). However, the manufacturer is not required by the Secretary to correct any “defect which relates to manufactured home construction or safety or of the failure of a manufactured home to comply (noncompliance) with applicable manufactured home construction and safety standards” (42 USCA §5413(c)(5)), in the homes of those who purchased the dealers or distributors alleged property. That is, unless in his opinion such defect:

• Is a “serious defect”, which poses an unreasonable risk of injury of death to the purchaser, or poses an “imminent” and unreasonable risk of injury or death (“imminent safety hazard”) to the homeowner, and only then;

• If such serious or substantial defect can be related to an error in design or construction by the manufacturer, and only then;

• If the exact serious or substantial defect(s) would have likely been introduced into more than one manufactured home during production (class of manufactured homes).

Simply stated, an infinite number of purchasers can be injured or killed by latent manufacturing defects in these products, and under the Secretary’s regulations, his manufacturers did not produce a product that failed to conform to the MHCSS. His manufacturers can only fail to conform to the MHCSS if by some capricious event, it is discovered that more than one manufactured home is affected by the exact same “noncompliance, defect, serious defect, or imminent safety hazard.”

This is not the same for dealers or distributors where such failures occur on a per home basis.

This Secretary’s corrective actions related to first purchasers are consistent with the manufacturers’ warranties, which are:

• “Ambiguously worded and designed to protect the manufacturer rather than the consumer, most warranty provisions have disclaimed all implied warranties, including that of merchantability, and have left the owner with little other protection. Compliance with the terms of the warranties has been difficult and the prescribed procedures appear to be designed to deter claims.”

Note: “Implied warranty of merchantability” - a warranty that the property is fit for the ordinary purposes for which it was intended. “Defect” means any defect in the performance, construction, materials, or components of a manufactured home (property), which renders the manufactured home (property), or any part thereof, unfit for the ordinary use (purpose) for which it was intended (42 USCA §5402(4)).

The manufacturers as a standard disclaim all implied warranties, unless prohibited by State law (few and far between). With all implied warranties disclaimed in their warranty, the manufacturers allege that they will correct structural, plumbing, heating, and electrical system defects. However, this is only if in their opinion such defect represents a “substantial” or “serious” defect in the materials or workmanship of their merchandise. The surreptitious objective of the industry standard warranty will be apparent in the next section.

Congress expressly states that the dealer or distributor of manufactured homes CANNOT be the “first purchaser” of the manufacturer’s manufactured home under the MHCSS Act. In 42 USCA §5414(b), Congress states:

• “the notification required in subsection (a) of this section shall be accomplished, (1) by mail to the first purchaser (not including any dealer or distributor of such manufacturer) of the manufactured home...”

The Secretary excludes any mention of Congress’s express clarification that the first purchaser of the manufacturer’s merchandise is NOT “any dealer or distributor of the manufacturer.”

One has to wonder what the 93^rd Congress knew about this industry that led them to restate under 42 USCA §5414 (Consumer remedies section), that the dealer or dealers were not the purchasers of the manufacturer’s manufactured homes under the MHCSS Act.

• 42 USCA §5414(b)(3) “by mail or other more expeditious means to the dealer or dealers of such manufacturer to whom such manufactured home was delivered”.

To the FIRST purchaser, not including any dealer or distributor, and to the dealer of such manufacturer to whom such manufactured home was delivered.

If 42 USCA §5414 is read with due care, it is crystal clear that any actions taken under 42 USCA §5414 are applicable ONLY to a manufactured home(s) NOT in the possession of the manufacturer or any “dealer or dealers of such manufacturer.” Hence, all actions under 42 USCA §5414 are exclusively for the benefit of the purchaser of the manufacturer’s DEFECTIVE manufactured home (emphasis added), which does not include any manufactured homes in possession of “any dealer or distributor of such manufacturer.” For manufactured homes in the possession of any dealer or dealers of such manufacturer, these are provided for under 42 USCA §5412.

The Secretary, consistent with his contrived regulations makes the manufacturer’s dealers or distributors the primary persons to be notified of “any defects in any manufactured home produced by such manufacturer,” versus secondary (24 CFR 3282.409(f) & 42 USCA §5414(b)) as under the MHCSS Act. This conveys the message that the purchaser’s right to notification is secondary to the right of the dealer(s) or distributor(s) to such notification. This is consistent with his regulatory implementation of §5414, known thereunder as Subpart I, where the dealer or distributor is afforded greater protections under 42 USCA §5414, even though nothing under said section, with the exception of being notified that the sold nonconforming or statutorily illegal manufactured home(s), is applicable to the dealer or distributor.

Specifically, the Secretary establishes 24 CFR 3282.407 under the authority of 42 USCA §5414(e), and then gives the dealer or distributor direct access to this process so that they are able to refer a case to the Secretary or SAA, if they believe that the manufacturer acted in bad faith. If 24 CFR 3282.407 arose under the authority of any other section or subsection of the MHCSS Act, then “Notification and correction pursuant to administrative determination” under the Secretary’s regulations would be absent statutory authority, for the MHCSS Act provides for this no where else.

The Secretary says under 24 CFR 3282.413(a) that “Whenever an imminent safety hazard or serious defect in a manufactured home, which must be corrected by the manufacturer at his expense under 24 CFR 3282.407 cannot be repaired within 60 days in accordance with section 615(i) of the Act, the Secretary may require:

(1) “That the manufactured home be replaced by the manufacturer…”

(2) “That the manufacturer takes possession of the manufactured home and refund the purchase price in full…”

There is however three significant problems. This must arise from action under 24 CFR 3282.407, which the loop formed by 24 CFR 3282.402(e) & 3282.404(c) prevents the purchaser from referring the matter to the Secretary or SAA for administrative determination under 24 CFR 3282.407. The next problem, even if an individual or consumer, by capricious discovery of a serious defect or imminent safety hazard, which affects more than one manufactured home becomes potentially eligible, the Secretary has made replacement or refund dependent upon no less than five conditions (24 CFR 3282.413(b)(1-5)), some of which are arbitrary and capricious. This creates discretionary authority where no exist under the enacting statute.

It cannot go by without mentioning one of the Secretary’s conditions for refund or replacement! As noted on page 33, it is apparent that the Secretary is especially sensitive to the needs of his manufacturers.

If replacing or refunding the purchase price of the manufactured home will cost his manufacturer too much money (24 CFR 3282.413(b)(3)), which how much is too much is wholly ambiguous, the purchaser WILL NOT be eligible, even if all other conditions are met, for a refund of the purchase price or replacement of the manufacturer’s dangerous manufactured home. In so much as to reach this point in his regulations, the Secretary has already determined that the manufacturer’s manufactured home contains an error in the design or construction of the home by the manufacturer, which constitutes an imminent safety hazard or poses an unreasonable risk of injury or death to the purchaser, this condition is BLANTANTLY UNCONSCIONABLE.

If such person making such a decision were not the Secretary (above the law), and they made such a decision solely because it would cost them too much to replace their dangerous merchandise, and someone died or was injured as a result of such a decision, such person would most likely, and at the least, be prosecuted for criminal negligence. Not forgetting that the Secretary’s primary objective is to protect his manufacturers from being held accountable for any or all-unlawful behavior, this is why he is making this unconscionable decision on their behalf.

The Secretary as well does not say – ‘What next’ – if he determines that it cost the manufacturer too much to replace or refund the purchase price of their defective merchandise, which they have been unable, or more likely, unwilling to incur the cost of completely removing the imminent safety hazard or defect that poses an unreasonable risk of injury or death to the purchaser. With no explanation of what next, and given that without a ‘what next’ this determination marks the end of formal remedial actions under the Secretary’s regulations, is the purchaser now doomed to circumnavigate the Secretary’s contrived loop?

Lastly, and as discussed earlier, the Secretary did not implement 42 USCA §5411 & §5421, and he did not bother to implement the criminal penalties under 42 USCA §5410 for behavior that threatens the health or safety of any purchaser. This effectively leaves the Secretary with little leverage to force the manufacturer to refund the purchase price or replace their defective merchandise. It is NOT possible to determine how much a manufacturer could be fined by the Secretary – for each violation of his regulations – since he never implies or expresses that a manufacturer can violate his regulations. With this, the only apparent violation would be the manufacturer’s failure to comply with his order to replace or refund the purchase price, which gives the Secretary a maximum of an 1100-dollar fine to use as leverage. It should be obvious that the Secretary’s regulatory fine would be a whole lot cheaper than replacing or refunding the purchase price of their dangerously defective merchandise.

Congress only provides one condition – the manufacturer failed to correct the defect(s), as defined by Congress, in their product in 60-days – there is nothing ambiguous about this. 42 USCA §5414(i) is a ‘lemon law’ within every sense of the meaning, and it has been in place since 1974. Only the Secretary ‘broke the Law’ (MHCSS Act) in so many ways that §5414(i) has been completely silent since its enactment in 1974. This does not mean that a manufacturer has never refunded the purchase price or replaced their defective merchandise with another substandard product (equivalent home - as produced under the Secretary’s jurisdiction); it only means it did not happen because the Secretary required this under his contrived regulations.

To further hinder any possibility that a purchaser may be entitled to timely and equitable relief from the manufacturer, the Secretary contrived what constitutes “discovery or determination” under his regulations, which is the base for beginning the 60-day clock under the MHCSS Act. The Secretary starts his 60-day clock not upon discovery or determination of the defect(s), but upon his or his SAA’s approval of the manufacturers plan for notification and/or correction, or upon approval of the manufacturer’s request for a waiver to forego issuing “the notification specified in subsections (a) and (b)” (42 USCA §5414(e)) of 42 USCA §5414. It should be noted that Congress neither expresses nor implies in any manner whatsoever, that a waiver can be sought or approved by the Secretary that dismisses Congress’s express and direct order to the manufacturer (emphasis added) to issue the “the notification specified in subsections (a) and (b).”

While Congress does not expressly state what defines discovery or determination, they did leave NO doubt that Secretary’s or SAA’s approval of the manufacturers plan for notification, and the manufacturer’s delivery of said notification, and correction if required, to the first purchaser, shall occur within the 60 days that Congress speaks of in 42 USCA §5414(g) & (i). The Secretary or SAA’s approval of the manufacturers plan for notification and correction simply CANNOT represent the date of discovery or determination because; his or his SAA’s approval of said plan is encompassed within the 60-days provided by Congress. As promulgated by the Secretary, the amount of time that he or his SAA’s can take in approving the manufacturer’s plan or waiver is infinite. It is not unheard of for the Secretary to take as long as a year to issue a final determination, and in some cases, it never comes.

Even if the Secretary or his SAA acted post haste under the Secretary’s regulations, at the very best, according the Secretary’s own process charts for his remedial subpart I, it would take a minimum of 130 days to complete, which is over two times what Congress provides.

To give the benefit of doubt, it would probably be difficult to complete all tasks in 60-days, however, Congress expressly provides for this event by providing a procedure for extending the deadline (emphasis added), which such procedure has been effectively bypassed due to the Secretary’s contrived regulations.

As the Secretary expresses in 24 CFR 3282.401(b) & 3282.11(c), it is not his intent to afford the right of notification and correction to those that have purchased manufactured homes. This does not mean that it cannot happen; it only means that the Secretary’s regulations are to the highest extent possible, designed to prevent this occurrence.

Consumer protection, as expressed by the Secretary in 24 CFR 3282.11(c) would have to come by way of State fraud and/or consumer protection laws, such as ‘deceptive trade practices’ statutes. By statutory design, this is actually permissible under the MHCSS Act. The State Attorney Generals simply have to refuse to give their assent to the Secretary’s overreaching preemptive rule, which tramples on rights reserved to the States, and pursue the prosecution of such cases [12] [13] under State Laws, as established to give said State, the authority to enforce the MHCSS. They need only direct the SAA for their State to write up each such defect in a consumer’s manufactured home, consistent with the MHCSS that is applicable to each such defect. Upon writing up such noncompliance (and not the Secretary’s contrived meaning for “noncompliance”) with the MHCSS, the SAA, per their duty under 42 USCA §5422, need only submit “any information indicating noncompliance with such Standards” to the Attorney General of said State for appropriate action. It would be virtually impossible to have any defect in a manufactured home that does not violate some aspect of the MHCSS. The Attorney General for said State would have the authority under State law to prosecute such cases, in any State that has been fully approved by the Secretary as an SAA under 42 USCA §5422, specifically, pursuant to 42 USCA §5422(b)(2), (3), & (4).

The State Courts as well could refuse to give their assent to the Secretary’s regulations, which are also designed to usurp their authority. The State Courts would be well within their authority, and consistent with the express intent of the MHCSS Act, to void any provision of any contract for the purchase of any manufactured home determined by the SAA, not to comply with all applicable MHCSS. Common sense dictates that this would be a last resort should the manufacturer fail to comply in good faith with 42 USCA §5414. The manufacturer and their dealer agents would have an equally vested interest in ensuring that purchaser’s lawful or due process right (emphasis added) to a manufactured home that complies with all applicable MHCSS was not violated, and if so, that good faith remedy was afforded post haste.

• Sec. 3282.403 …The SAA or the Secretary shall, when it appears from the complaint or other information that more than one manufactured home may be involved, simultaneously send a copy of the complaint or other information to the SAA of the State where the manufactured home was manufactured or to the Secretary if there is no such SAA, and when it appears that an imminent safety hazard or serious defect may be involved, simultaneously send a copy to the Secretary.

The Secretary says that if he or his SAA receives a complaint (singular) and it appears from the individual’s complaint that more than one manufactured home may be involved, that he or his SAA may (24 CFR 3282.407(a)(3)), but they don’t have to, take a course of action, but only as he provides. How does it appear from one consumer complaint that other manufactured homes may be affected by the same defect? Does the Secretary or some of his SAAs, contrary to the plain meaning of ‘forward’ make a copy of the complaint before they forward it to the manufacturer? Otherwise, there would be nothing with which to compare such compliant to, or nothing to compare the next and the next.

Even if the Secretary argues that this is what he meant, he has established no policy, which expresses or implies that “effective handling of consumer complaints referred to it” (24 CFR 3282.302(b)(1) & 3282.405), means anything more than “forward” the complaint to the manufacturer. Even if the Secretary argues he means more than just “forward” the complaint, such complaints from consumers, rarely contain enough tangible information for an objective review. This is what is meant by multi-layer obstruction – if the Secretary were by some means forced to fix one problem in his regulations, they would still be broken by layer upon layer of purposely-contrived ambiguity and misdirection.