The Rights of Manufactured Home Purchasers
By John Taylor
Founder – The American Internet Society of Manufactured Home Owners
Glossary of Terms
MHCSS – Manufactured Home Construction and Safety Standards
NMHCSS Act of 1974 – National Manufactured Home Construction and Safety Standards
Act of 1974
MHI – Manufactured Housing Institute
MHI Act of 2000 – Manufactured Housing Improvement Act of 2000
HUD – Department of Housing and Urban Development
FTC – Federal Trade Commission
**Note** The NMHCSS Act of 1974 does not cover used manufactured homes
Part 1
Discussion
The 93rd Congress with the passage of the NMHCSS Act of 1974 intended to put a stop to the manufacturer’s age-old practice of disavowing responsibility for all or any aspects of the performance of their product. However, this never happened and the Manufacturers could not have succeeded in continuing their age-old practice into the present, without the complicity, of the Secretary of HUD.
By every measure of righteousness, he is equally culpable for any manufactured home purchaser who has been or will be injured or killed, for he has done nothing to deter or prevent that, which is unethical, immoral, and illegal under this chapter, when it is within his authority or power to deter or prevent such abuses. (abuse of power). [Qui non propulsat injuriam quando potest infert – a person who does not repel an injury when he can brings it on.]
The Secretary of HUD as a matter of law has always had authority by way of the "manufacturer" (emphasis added) [endnote6 & endnote7], to regulate all aspects, including delivery and setup, which are related to the durability, quality, and safety (performance) of the "manufacturer’s manufactured home", he just didn’t like all that went with the job, so he ignored the parts that didn’t serve to further his own political ambitions. The current practice, which is not only condoned by HUD, but also promulgated by HUD, is for the manufacturer to certify at the back door of the factory, that the wood frame structure before them, sitting on rubber tires, most often in pieces, unanchored to the ground and with no utilities connected to it:
The question that begs to be answered is can a wood frame structure, most often in pieces, sitting on rubber tires, and unanchored to the ground, have all of the qualities or characteristics cited above. Upon certification at the back door of the factory, HUD and the manufacturers jointly disavow responsibility, there forth, for new manufactured homes that fail to provide durability, quality, and safety, to the purchasers of these products. At best, the manufacturer’s certification at the back door of the factory is false or misleading in a material respect, for they know not when they certify their product, whether their product will be of any particular durability, quality, and safety when purchased for its intended use.
This rest of this discussion will not include references in this chapter to persons who deliver, introduce, or import manufactured homes into the United States. "Manufacturer" [endnote6] is defined as a person who manufactures manufactured homes, which includes any person who imports manufactured homes for resale. Therefore, the act of substituting "importer" for "manufacturer" and "import" for "manufacture" has no affect on the outcome of the discussion. It should also be noted that this is a discussion of the NMHCSS Act of 1974. In December of 2000, Congress passed the MHI Act of 2000. However, until new standards and regulations are promulgated in accordance with the MHI Act of 2000, the original standards and regulations remain in affect. As well, at large, what is written in the NMHCSS Act of 1974 was not changed by the MHI Act of 2000. Hence, the purpose of the MHI Act of 2000 is to legitimize the state of confusion promulgated by HUD and the Manufacturers, as to who is responsible under this law, for the performance of the manufacturer’s product, and not to correct any deficiency, even though it was never shown or proven to have one, that may have existed in the original law.
42 USC §5421 states that "the rights afforded manufactured home purchasers under 42 USC, Chapter 70 may not be waived, and any provision of a contract or agreement (emphasis added) entered into after August 22, 1974, to the contrary shall be void".
42 USC §5421 is a powerful section, yet the Secretary of HUD makes no reference or acknowledgment in his regulations, period, of the existence of this section, nor does he acknowledge that manufactured home purchasers have any rights under this chapter. If he has no intent on protecting the rights of the purchaser, then this law has no legitimate objective towards "consumer protection", but it can when construed as the Secretary has done, serve well as manufacturer protection law, which is consistent with HUD’s administration of this law.
42 USC §5421 establishes "manufactured home purchasers" as a protected class; hence, "the rights afforded manufactured home purchasers under this chapter may not be waived" (emphasis added). By Congress establishing that there is such a class of persons, they as well established a limitation on federal power, in regards to the rights of this class. Therefore, short of repeal or amendment of this section by Congress, no person(s), including the Executive, other than the Congress by amendment to this section, in accordance with the Constitution of the United States, has the authority to take any action, which waivers, dilutes, impairs, or infringes on the rights afforded to "manufactured home purchasers" under this chapter. The second part of this section addresses actions by private persons, which includes the "manufactured home purchaser" and holds all such provisions of a contract or agreement (emphasis added) entered into after August 22, 1974, between such private persons, to be void, if such is contrary to the rights afforded under this chapter, to "manufactured home purchasers".
"Pacto aliquid licitum est quod sine pacto non admittitur"
By agreement (or contract) something is permitted that, without agreement, is not allowed, but not in violation of public law." [Sir Edward Coke. Part 1 of the Commentarie upon Littleton 166]Such rights under this chapter are imprescriptible and substantive.
The rationale behind 42 USC §5421 is simple. The public exigency that supported the infringement by Congress into an area historically reserved to the state or the people, was public safety, [endnote3, endnote8, & endnote9] and to reduce the cost of insurance to the public. As the testimony for this legislation reveals, the States had effectively proven they were unable to overcome their political differences to assure that manufactured homes produced in one state, would not pose an unreasonable risk of injury or death to the public in another state. Some States, such as Iowa, had gone so far as too allow the manufacturers in their State too build to two standards; one for homes that would remain in the State, and one for those that would be shipped out of State—you only get one guess as to which standard lacked sustenance.
Congress determined that the only way to accomplish their objective was to establish construction and safety standards, and to authorize research to improve the durability, quality and safety of manufactured homes. It is a forgone conclusion that if any person could make the decision to sacrifice in exchange for lower housing costs, the safety of innocent people, who are given no choice in the matter, then for all practical purposes, setting construction and safety standards would be an exercise in futility, since there would be no practical or reasonable way to enforce such standards.
This fundamental principal was affirmed by the United States Court of Appeals, 11th Circuit, when they stated":
"Potential victims of flying debris from manufactured housing, unlike the purchasers of convertibles, do not have the opportunity to choose between cost and safety. 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". [94-2307 FLORIDA MANUFACTURED HOUSING ASSOCIATION, INC., et al. v. Henry G. CISNEROS, Secretary of the United States Department of Housing and Urban Development June 12, 1995] [Footnote1]
Suppose just for a moment that individuals could make the choice to buy cars with unsafe brakes in exchange for lower initial cost. How would any person know which cars had unsafe brakes, and therefore placed them, their family, and their property at an unreasonable risk of injury or possibly death? Chaos would surely ensue as people reacted out of fear to the unknown that approached them, their family, and their property. How much safety would be sacrificed by the manufacturers of products, if society left all such determinations in regards to public safety, entirely to the discretion of the manufacturer?
Within all reason of a free market system, such a system would make any measure of safety begin at zero, and how much safety, if any, one obtains a function of how much one was able to pay. Would not such a system subject a nation’s less fortunate to an unreasonable risk of injury or death, while affording to its more affluent, the luxury of a reasonable standard of safety? The Secretary of HUD has years of practice in dealing with the problems that would arise should the public be aware, or have knowledge, that such a system was the basis for the manufacture of products in the U.S. As discussed earlier, he simply deems any information that may, or would otherwise reveal, or shed public light, on the human and financial costs brought about by such a system, to be a trade secret or confidential.
What are the rights afforded to "manufactured home purchasers" under the National Manufactured Home Construction and Safety Standards (NMHCSS) Act of 1974? There are two rights under this chapter afforded to each "manufactured home purchaser", a "primary right" [endnote10] and a "remedial right" [endnote11]. It should be noted that these rights were not changed by the MHI Act of 2000. It is a reasonable assumption that since the Secretary does not acknowledge that manufactured home owners have any rights under this chapter, the industry saw no reason to raise suspicions in regards to their true nature, by seeking what would have been an extensive re-write of the entire law. All else in this chapter is provided or intended to assure that each "purchaser" [endnote2] of a manufactured home, has afforded to them, their primary right to a reasonable standard of durability, quality, and safety (performance) in the manufactured home they purchase. In this manner, and only in this manner, could the public be assured that they were protected against the unreasonable occurrence of accidents due to the design or construction of such manufactured homes [endnote8].
1 Footnote: The court informed the industry in their opinion that if the manufacturers wanted this, they would have to get Congress to change the law. Armed with brief cases full of hundreds of thousands if not millions of dollars for campaign contributions the industry went to Congress and did just that, (campaign finance records indicate that their brief cases were empty when they left Washington). With the passage of the MHI Act of 2000, they have legitimized the notion that the safety of those given no choice in the matter can have their safety sacrificed by others in exchange for lower housing costs or at least this is the intent behind the MHI Act of 2000. It waits to be seen if the Courts will go along with this notion.
Part 2
The "Purchasers" Right to a Home that Complies with all Applicable MHCSS
The NMHCSS Act of 1974 had a narrow focus, to promulgate reasonable minimum standards for the construction and safety of mobile homes, "in order to have more uniformity and a guarantee that wherever a person buys his home", "he has some confidence that he is buying a product that he can live with" [U.S. Senator Brock –1973]. The rights afforded to manufactured home owners under this chapter are not expressly stated by Congress. This Congressional intent of this law, as cited by the Federal Courts is "clearly consumer protection". Given this, one only needs to determine what was Congress seeking to protect consumers from, to determine what rights this chapter affords to the protected class. We begin by addressing the prohibited act under this chapter, which is the axis for all else in this chapter.
§5409(a)(1) [endnote12] states, No person shall manufacture for, which is better stated if the definition of "for" is used in its place. When this is done, it reads – No person shall manufacture "with the aim to" sale, lease, sell, offer for sale or lease, any manufactured home, which does not comply with all applicable MHCSS. Simply stated, a manufactured home, which is manufactured not in compliance with all applicable MHCSS cannot be, or have been, legally sold, leased, offered for sale or lease, by any "manufacturer", or on behalf of any "manufacturer", to any "purchaser" of such "manufacturer’s manufactured homes" [endnote1] (emphasis added).
Within the scope of this paragraph, to whom do such "manufacturers" aim to sale, lease, sell, offer for sale or lease, that which they manufacture (emphasis added)? The answer, while not complicated, has been construed by the Secretary of HUD to legitimize his dereliction of duty, in carrying out this chapter in a manner, that has any objective towards affording to manufactured home purchasers, their rights under this chapter. Therefore, to assure that there is no misunderstanding as to who is the purchaser of the manufacturer’s manufactured home within the coverage of this chapter, an analysis of this subsection follows. We start with 42 USC §5409(a)(1).
To begin with, a person cannot be pre-excluded for violations and accountable for violations in the present or future, of the same statute. There would simply be no rational for such a statute since such a person could not in the beginning, violate such a statute.
42 USC §5409(a)(1) states that this paragraph shall apply to all manufactured homes (emphasis added) manufactured on or after the effective date of any MHCSS, "except as provide in subsection (b) of this section". 42 USC §5409(b)(1) [endnote13] states that Paragraph (1) of subsection (a) of this section shall not apply to the sale or offer for sale of any manufactured home after the first purchase of it in good faith for purposes other than resale (emphasis added). This condition is pre-exclusionary because such a manufactured home purchased in good faith for purposes other than resale is not in the beginning, subject to the prohibition specified in paragraph (1) of subsection (a). Paragraph (2) of subsection (b) prescribes the conditions by which a person would not be penalized for their violation of 42 USC §5409(a)(1).
[Poena tolli potest, culpa perennis erit – The punishment can be removed, but the guilt will be perpetual]
Paragraph (3) addresses importation of manufactured homes. Therefore, it is conclusive that paragraph (1) of subsection (a) applies to the "manufacturer’s manufactured homes" until such is for the first time sold or leased, to any person who purchases the "manufacturer’s manufactured homes" in good faith, for purposes other than resale (emphasis added).
Simply stated, paragraph (1) of subsection (a) does not apply to used manufactured homes, which in accordance with paragraph (1) of subsection (b), such is not deemed used under this law so long as the first purchaser has not sold, or is not offering for sale, their manufactured home. We need now only to determine who are such persons that purchase the "manufacturer’s manufactured homes" in good faith for purposes other than resale (emphasis added), for only they can be the intended beneficiary of the protection afforded by 42 USC §5409(a)(1). For this answer, we turn to the definitions for this chapter at 42 USC §5402.
§5402(2) states that a dealer means any person engaged in the sale, leasing, or distribution of new manufactured homes primarily to persons who in good faith purchase or lease a manufactured home for purposes other than resale. Given this definition, a "dealer / retailer" is not such a person who purchases the "manufacturer’s manufactured homes" in good faith for purposes other than resale.
Turning next to §5402(4), it states that a "distributor" is any person engaged in the sale and distribution of manufactured homes for resale. Given this definition, a "distributor" is not such a person who purchases the "manufacturer’s manufactured homes" in good faith for purposes other than resale.
Turning next to §5402(10), it states that a ''purchaser'' is any first person purchasing a manufactured home in good faith for purposes other than resale. Given these definitions, it can be concluded that neither the dealer/retailer nor distributor can be the "purchaser", within the scope of this chapter, of the "manufacturer’s manufactured homes".
Within the scope of this chapter, the manufacturer can only aim to sale, lease, sell, offer for sale or lease, that which they manufacture to a person who purchases such in good faith for purposes other than resale.
Therefore, a "manufacturer" must know "in the exercise of due care" [endnote14] that such "manufacturer’s manufactured home" complies with all applicable MHCSS at the time that such "manufacturer’s manufactured home" is first sold or leased to any person who purchases such "manufacturer’s manufactured home" in good faith for purposes other than resale.
The next question that arises is where did Congress envision that a manufactured home could comply with all applicable MHCSS. For this, we must turn to the legislative history. We begin with the MHCSS, which are established under the authority of 42 USC §5403 [24 USC §604]. They have no purpose beyond setting construction and safety standards for that, which will be made, assembled, constructed, or manufactured (emphasis added), therefore, they have no force and affect on any person other than those who will perform "manufactured home construction" [endnote7] (EMPHASIS ADDED).
Within the scope of this chapter, only the "manufacturer" can perform "manufactured home construction", for a "manufacturer" is any person [endnote6] (emphasis added) engaged in the manufacture or assembly of a manufactured home, and "manufactured home construction" means all activities (emphasis added) relating to the assembly and manufacture of a manufactured home, including those activities related to the durability, quality, and safety of the "manufacturer’s manufactured home" (emphasis added).
What follows are just a few of the statements published by the manufacturers industry trade association (MHI), and as they appear not only on HUD’s website, but as well, on the Federal Trade Commission’s website:
"Site Preparation"
"While you may be able to do some of the site preparation, most tasks, such as grading and compacting soil, require professional expertise. Otherwise, you could do damage to your home that's not covered by the warranty".
[Activity related to the durability, quality, and safety of the manufacturers manufactured homes]"Connecting Utilities"
"Installation should include connections to water, electricity, gas, and sewer. If connections aren't included in the installation price, you'll have to contract for them separately".[Gas leaks, water leaks (potable and waste) and electrical shorts – Activity related to the durability, quality, and safety of the manufacturers manufactured homes]"Leveling Your Home"
"It's critical that your home be leveled to meet the manufacturer's installation instructions. Otherwise, your home's weight will be unevenly distributed. This can cause floors and walls to buckle and prevent doors and windows from opening and closing smoothly." [Activity related to the durability, quality, and safety of the manufacturers manufactured homes]"Securing Your Home to the Foundation"
"To help minimize damage from high winds and earthquakes, your home should be anchored to the ground or concrete footers. Anchoring must comply with the manufacturer's instructions or as required by local codes". [Activity related to the durability, quality, and safety of the manufacturers manufactured homes]"Delivery"
If damage occurs during delivery, you could have a difficult time getting no-cost repairs. [Activity related to the durability, quality, and safety of the manufacturers manufactured homes]"There are important differences among warranties. For example, manufacturer warranties usually do not cover installation (also called "set-up") and transportation of the home."
The manufacturers, through their trade associations, freely admit that transportation and installation, a.k.a., setup and onsite completion (Activity) have a direct impact on the durability, quality, and safety (performance) of the "manufacturer’s manufactured home". Given their admission in regards to the effect these activities have on the durability, quality, and safety of the "manufacturer’s manufactured homes", and the legal definition for "manufactured home construction" [endnote7], it is conclusive that such activities are related to the construction of the "manufacturer’s manufactured home".
Given the context of the legal definitions in this chapter, the only plausible explanation for the facts, as presented by the industry drafted FTC publication, is that the "purchaser" is as well the manufacturer of manufactured homes. This would explain why in accordance with the FTC Publication, it is the purchaser who is responsible for all activities related to the durability, quality, and safety or "manufactured home construction" of the **(manufacturer’s manufactured home)** [endnote1, endnote3, endnote6, endnote7, & endnote8]. The myths or fiction put forth by the manufacturers, in cooperation with HUD and the FTC, are so illogical, that it escapes the imagination of any reasonable person how they have gotten away with this unabated, but then, "the influence of money in politics corrupts absolutely" [Senator John McCain].
The 93rd Congress wrote in the legislative history for this law that a mobile/manufactured home shall be:
"in compliance with all applicable standards under section 604 [endnote15] including," – "by way of example, but not limited to the setup of the home, and the installation and connection of accessories and utilities" – "when delivered to" – "the first purchaser".
Senator John Sparkman, the Chairman of the Senate subcommittee on Housing and Urban Affairs, stated at the July 1973 hearings in regards to this legislation:
"Now I have read in many instances of tragedy in the mobile homes that I think could have been avoided by having proper standards. I remember going down to Fort Rucker a year or 2 ago. A tornado had come through there and there was a great colony of mobile homes. The most utter destruction I have ever seen, and I was impressed then with the idea that we needed to do something about it. Just to see on of these mobile homes sitting on a stone or a cement block or something like that with no anchor whatsoever seems to me is virtually an invitation to destruction, and I was very glad to join with Senator Brock and others of this committee in introducing legislation."
42 USC §5414(a) states:
"Every manufacturer of manufactured homes shall furnish notification of any defect in any manufactured home produced by such manufacturer which he determines, in good faith, relates to a Federal manufactured home construction or safety standard or contains a defect which constitutes an imminent safety hazard".
The notification mandated in 42 USC §5414(a) would include by way of Congressional example, notification for defects [endnote16] or failures to comply with the MHCSS, which were related to, associated to, or the result of, the transportation and/or setup (a.k.a. – installation or onsite completion) of the home, and the installation and connection of accessories and utilities.
42 USC §5414(g) states:
"A manufacturer required to furnish notification of a defect under subsection (a) or (e) of this section shall also bring the manufactured home into compliance with applicable standards and correct the defect or have the defect corrected within a reasonable period of time at no expense to the owner, but only if –
- the defect presents an unreasonable risk of injury or death to occupants of the affected manufactured home or homes;
- the defect can be related to an error in design or assembly of the manufactured home by the manufacturer".
It is evident that Congress envisioned a program that guaranteed each purchaser, thereby assuring the public safety, that manufactured homes manufactured on or after the effective date of this standard, would comply with all applicable MHCSS standards under section 604, when the home was setup, and the installation and connection of accessories and utilities was completed at the home site or at the completion of the sale to a purchaser.
This is very much true about the MHCSS, which were promulgated under the 1974 law, for it cannot be known by any person, as is evidenced by the industries own trade (MHI) publication, prior to the completion of a manufactured home at the home site, if such manufactured home will be durable, of any particular quality, and safe (performance) [endnote3 & endnote7] for its intended use or if such complies with all applicable MHCSS [endnote3].
Given the prohibition just discussed, it can be concluded, that the manufactured home purchaser has the right under this chapter, to a new manufactured home that complies with all applicable MHCSS, when it is completed at the home site, and connected to the required utilities. Simply, the manufacturer is prohibited by federal law from manufacturing with the aim to sale to a purchaser, any other kind of manufactured home. It is equally clear that it is the manufacturer’s responsibility under this law to ASSURE in the exercise of due care, that such purchaser’s right has been afforded to them. How can the manufacturers attest to that being true, which they admit in their own published literature, which includes, but is not limited to their "installation manuals" and "homeowners manuals", they have no way of knowing to be, or knowledge of being, true?
The 93rd Congress directed the Secretary of HUD to end the manufacturers age-old game of disavowing responsibility for all aspects of performance (durability, quality, and safety) related to the design and construction of their product (product liability). Instead, the HUD Secretary promulgated regulations that incorporate within their construction, the manufacturer’s age-old game of passing the buck.
The Secretary of HUD has participated freely with the manufacturers in these misleading and in some cases, illegal activities, under the notion that by keeping down the manufacturer’s production cost, this would keep the initial cost of manufactured homes to the public, low. HUD has no evidence, at least evidence they are willing to share with the public, to support such production savings are passed by the manufacturers, to the consumers of their products, and there is no legal requirement for the manufacturers to pass such savings to the purchasers of their product. However, if the Secretary was not gaining some form of benefit from supporting this notion, it is not likely he would participate.
Given his motives are not purely selfish, what benefits does the Secretary derive from permitting the manufacturers to produce products, which as discussed earlier, are of an unknown quality, durability, and safety, when they are certified to be of a known quality, durability, and safety? Simply, lower initial cost to the public translates into higher new manufactured home sales, which for the Secretary, translates into numbers, which show his agency is making the dream of homeownership, a reality for more low-income families.
In addition, the more low-income families that can purchase homes, the less there are on the housing subsidy roles, which translates into savings, that can be passed in the form of tax cuts, to primarily middle and high income persons or families. From a political perspective, it a win-win for the Secretary, and from a profit perspective, it is a win-win for the manufacturers. From the low-income consumer perspective, they most often find themselves living in a money pit, with the manufacturer, their agents, the Secretary and his agents, all telling them, "sorry, there is nothing we can do for you".
The only problem with HUD’s policy, and they know this to be true, is that the real cost to society, both in human and financial terms, cannot be calculated in the initial cost, and therefore, the real cost of HUD’s shortsighted policy will not be fully realized by society, until the damage is to great to hide from the public.
The further away the home gets from the factory, not in miles, but in time, the easier it is for HUD, just as the manufacturers do, to construe design and construction defects as being the result of normal wear and tear, or abuse, or as being the fault of the purchaser.
The manufacturers claim their products are of sufficient quality and durability to make them fit for a 30-year mortgage. In accordance with their own literature, they have no way of knowing if their product will be of any particular quality and durability, when it is completed at the home site. It seems someone needs to ask them, how do they know their product is fit for a 30 year mortgage, when according to their own literature, they don’t have any way of knowing whether this is true or not. As discussed, HUD has a stake in making more 30 year financing available to the public for the purchase of this product, so bear in mind, they will assist the manufacturers in promulgating this myth.
HUD, in accordance with their own policy, claims they have no authority to enforce the standards through to the onsite completion of the home. Given this policy, they can also have no knowledge of whether this product will be of any particular quality, durability, or safety when it is completed at the home site.
Part 3
The Individual Right to Timely and Equitable Relief
The next part of this discussion deals with 42 USC §5414. The language in this section is so plain and concise that it is easily understood without a detailed discussion.
To this date, no federal court has ruled to allow manufactured home purchasers injured by a manufacturer’s failure to comply with this law, to seek remedy in a Federal court of law. The reasoning for this is the law itself provides the individual with the means to obtain timely and equitable relief. What has never been questioned is whether a member of the public, injured by a manufacturer’s failure to comply with this law, is as well restricted from seeking remedy in a court of law?
What is noticeably missing from the Secretary’s interpretive regulations for this law, which purports to be for the public safety, as well as for the purchaser’s safety, is any reference to the public. Even though he has defined "manufactured home safety" in his regulations, identically to Congress’s definition for the same, he never again mentions the publics need to be protected against any unreasonable occurrence of accidents due to the design or construction of such manufactured homes (emphasis added).
For the purchaser, Congress provided for a system by which a purchaser could seek and obtain timely and equitable relief (remedial right) [endnote17] for any injury to them, resulting from a manufacturers failure to comply with the NMHCSS Act of 1974.
Congress ordered that in all cases of a determination by the manufacturer or the Secretary that such manufactured home [endnote18] contained a defect or failure to comply, that this process be accomplished in accordance with the procedures set forth in is section. What is purposely overlooked by the Secretary is the fact, that in all cases of a determination by the manufacturer, or the Secretary of any defect related to a manufactured home’s failure to comply with MHCSS, which would have existed or been introduced into the manufactured home, prior to the completion of the sale to the first purchaser, the primary right of the purchaser has been violated. To restore the purchaser’s primary right, remedy in strict accordance with 42 USC §5414(g) is demanded.
James Madison introduced on June 8, 1789, his Draft of the Bill of rights, which ultimately became the Federal Bill of Rights and in this draft, he wrote:
"In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate [endnote19]."
"Ought to remain inviolate" or free from violation, not broken, infringed, or impaired. A Constitutional mandate clearly ignored by the Secretary of Housing, for he has broken the purchaser’s "remedial right" under this chapter, and he has done so with deliberateness. Nothing is a more glaring example of the Secretary’s deliberateness to violate the "remedial right" of the purchaser, than what he has done to Congress’s definition for "defect". Defect in the NMHCSS Act of 1974 is defined in the following way:
42 USC §5402(3) – ''defect'' includes any defect in the performance, construction, components, or material of a manufactured home that renders the home or any part thereof not fit for the ordinary use for which it was intended.
The Secretary on the other hand defines defect to mean:
24 CFR 3282.7(j) – Defect means a failure to comply with an applicable Federal manufactured home safety and construction standard that renders the manufactured home or any part or component thereof not fit for the ordinary use for which it was intended, but does not result in an unreasonable risk of injury or death to occupants of the affected manufactured home.
As will be discussed, this change was necessary to clear the way for him, to raise the bar for the kinds of defects, a manufacturer would be held accountable for correcting. No reasonable person can believe that a change of this significance to a statutory definition, was an accident or unintentional. This is probably the single most destructive action by the Secretary to this Act of Congress, for it changes or dilutes everything by the same degree that follows throughout this chapter. The nature of his action in this case is so enormous, that its affect was to change the Congressional intent or purpose for this law. The only plausible explanation for his action is that he has invested himself with the power to legislate for us in all cases whatsoever; therefore, whenever he does not like what is written by the peoples Constitutionally elected officials, he simply writes in his regulations, the changes he feels will best serve his personal objectives or ambitions, and then deems his law to be the superior to all other laws. [See 24 CFR 3282.11, the Secretary’s version of preemption and 42 USC 5403(d) in the NMHCSS Act of 1974, Congress’s version of preemption].
His quest for absolute power was reaffirmed by one of his agents at a conference for the Manufactured Home Owners Association of America, when she "explained … the fact that the rights and political power of the people must address their concerns through the chain of command: first, via local gov't, then the state SAAs, and lastly, federally through HUD". It is evident from this statement by his agent that the Secretary recognizes no power greater than his, or simply stated, he has anointed himself the absolute ruler over the kingdom of manufactured home owners.
The notion that the people’s power is subservient to his power is an utter abomination by him of the U.S. Constitution, for his power is derived from the people; hence, "federal power" is Constitutionally subservient to the power of the people, as stated in the "Bill of Rights".
42 USC §5414 has been construed by the Secretary in a manner that raises the bar for that which the manufacturers will be held accountable for correcting at their expense (lower liability), and changed what applies to one or more into more than one (even lower liability). In regards to raising the bar, he has done this by inserting the term "and" between paragraph (1) and (2) of subsection (g), and then promulgating his regulations based wholly on this his arbitrary, and capricious interpretation of this one subsection [endnote20].
[Ex antecedentibus et consequentibus fit optima interpretatio –
The best interpretation is made from what precedes and what follows]
One cannot read what comes before and after paragraphs (1) and (2) of subsection (g) of §5414, and reach the Secretary’s conclusion that, "and" appears at this point.
To clarify what was intended by Congress to appear at this point in the text, Congress provided a definitive answer to this substantial federal question in their definition for "manufactured home safety" [endnote8]. By legal definition, a manufactured home that contains a defect resulting from an error in design or construction, or contains a defect that poses an unreasonable risk of injury or death to the user, would be if either one of these conditions existed, unsafe. To argue that it is must be the combination thereof, is to argue that if it is discovered that a manufactured home contains a defect that poses an unreasonable risk of injury of death to the user, but because such defect is not related to an error in the design or construction of the home, the manufactured home is safe (emphasis added).
In accordance with the Secretary’s regulations, no one is required to notify the purchaser that their home contains a defect, which poses and unreasonable risk of injury of death to them or their family, unless such is also related to an error in the design or construction of the home.
In the final analysis, common sense dictates that the only answer that makes common sense, or that is logical, is that, "or" appears between paragraph (1) and (2). Any part of what lies in what the Secretary refers to as subpart I of 24 CFR part 3282 of his regulations, related to his arbitrary and capricious interpretation of 42 USC 5414(g), is as well arbitrary and capricious.
Raising the bar for the kinds of defects that the manufacturer would be required to correct was still insufficient to appease the manufacturers and the Congressional members of their "Congressional manufactured housing caucus" (direct quote from an industry trade association president). This dilution alone still meant that while the manufacturers would not have to correct errors in the design or construction of their product, the manufacturers would still have to issue notifications for errors in the design or construction of the manufactured home, which did not pose an unreasonable risk of injury of death. The contents of such a notice could be used in a State court by a purchaser, to gain remedy from the manufacturer for the defect(s) in their home of the manufacturers making.
The Secretary to put himself in a favorable light with those who could help further his own political ambitions, lowered the manufacturer’s liability under 42 USC, Chapter 70, even further. To accomplish this, the Secretary changed that in the statute, which applied to one or more to more than one, in his regulations. What is of even greater alarm is the manufacturers and the members of their Congressional manufactured housing caucus are still not satisfied with what little liability they have, and are currently seeking to have the Secretary use his regulatory authority to further dilute, the purchasers rights under this chapter.
The Secretary has undermined Congress’s order to the manufacturer to issue a notification for defects in their products, in so many different ways, that to discuss them all would be a huge undertaking. For this reason, only one of the Secretary’s regulations will be addressed, which goes hand-in-hand with his destruction of 42 USC §5414(g), and is the axis for much of what lies under subpart I of 24 CFR part 3282.
Citing the Secretary’s regulation at 24 CFR 3282.404(a), remembering that remedy is dependent on notification (EMPHASIS ADDED):
"The manufacturer shall provide notification as set out in this subpart with respect to all manufactured homes produced by the manufacturer in which there exists or may exist an imminent safety hazard or serious defect. The manufacturer shall provide such notification with respect to manufactured homes produced by the manufacturer in which a defect exists or may exist if the manufacturer has information indicating that the defect may exist in a class of manufactured homes that is identifiable because the cause of the defect or defects actually known to the manufacturer is such that the same defect would probably have been systematically introduced into more than one manufactured home during the course of production."
In the first part, he addresses the first limitation that he imposed on the remedial right of the purchaser, to relieve the manufacturers of their liability under this chapter, which was discussed earlier. In the second part, he introduces a phrase, which never appears in the NMHCSS Act of 1974 – CLASS OF MANUFACTURED HOMES.
To further dilute the "remedial right" of the purchaser, he limits the manufacturers responsibility to issue a notification for what he considers lesser defects (see Secretary’s amendment to Congress’s definition for "Defect") to only those that would have been introduced into more than one home. As per 24 CFR 3282.406, a manufacturer only has to correct a defect in their product if such defect poses an imminent safety hazard, or contains a serious defect that poses an unreasonable risk of injury or death to the occupants, but only if such defect relates to an error in design or assembly of the manufactured home.
Therefore, even in the event that a defect, which the Secretary considers a lesser one, requires that the manufacturer issue a notification, there is no legal requirement under the Secretary’s regulations for the manufacturer to correct such design or manufacturing defects in their product, at no cost to the owner.
Any part of what lies in what the Secretary refers to as subpart I of 24 CFR part 3282 of his regulations related to his arbitrary and capricious interpretation of 42 USC §5414(a), as it excludes or precludes the individual’s right to timely and equitable relief, is as well arbitrary and capricious
In the end, in accordance with the Secretary’s regulation, a manufacturer only has to issue a notice for defects, which pose an unreasonable risk of injury or death to the occupants, or if a defect would have been introduced into more than one home.
The manufacturer only has to correct those defects that pose an unreasonable risk of injury or death to the occupants, but only if such is related to an error in design or assembly, regardless of whether the manufacturer violated federal law or failed to comply with the MHCSS. Read 42 USC §5414 for yourself and it will become apparent that the only way the Secretary could have come up with what he has written, was to change Congress’s definition for "defect", change one or more to mean more than one, and insert the term "and" between paragraphs (1) and (2) of subsection (g) of §5414.
[Parte quacumque integrante sublata, tollitur totum – When any essential part has been removed, the whole is removed (or destroyed)].
Given this system of remedy provided for by the Secretary is so far from what has been written by Congress, and that it is the Secretary who is responsible for assuring the purchaser is afforded their remedial right, it is beyond a reasonable doubt that the Secretary has worked in collusion with the manufacturers, to violate both the primary and remedial right of the purchaser, under this chapter.
For this reason, it would be inappropriate for the courts to promulgate the notion that the perpetrator of such an act could fairly judge his own actions, and even in determining they were wrongful, if he would ever admit that his wrongful actions have resulted in injury, or even death, to the purchasers of manufactured homes. (Not the way to further his own political career).
While the Secretary of HUD has purposely avoided his duty by purposely breaking the remedial right of each purchaser under this chapter, to this date, the federal judiciary has as well refused to do their duty in providing an alternative to the remedial system broken by the Secretary, for restoring the "primary right" of the purchaser under this chapter. In addition, he has taken away from the States approved under §5422 of the Act any authority vested in them by this same section, to direct remedy, therefore, he has taken purposeful measures to assure his power is absolute in every regard to directing remedy [endnote21]. This quagmire of the Secretary’s making leaves the majority of individuals with defective or noncompliant manufactured homes, with nowhere to turn, leaving such persons living in conditions that can be described as none other, than despotism.
[Qui male agit odit lucem – a person who does wrong hates the light (of discovery)].
As discussed in the first part of this paper, the Secretary has thwarted efforts by consumer advocates and States to obtain information in regards to his administration of this program, superintendence of this industry, and the manufacturers level of compliance or lack thereof with this law. This has enabled the Secretary’s manufacturer protectionism of these manufacturers to flourish unabated, to the detriment of the purchasers of this product.
James Madison wrote to Thomas Jefferson:
"Whenever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful and interested party [in a republic] than by a powerful and interested prince [in a monarchy]."
One should ponder long on this important and powerful political maxim, for it is a warning of a formidable danger that is to great for a casual glance.
Endnotes:
1 42 USC §5413(g)(1) at each location where any such manufacturer's manufactured homes are offered for sale by a person with whom such manufacturer has a contractual, proprietary, or other legal relationship and in a manner determined by the Secretary to be appropriate
2 42 USC §5402(10) ''purchaser'' means the first person purchasing a manufactured home in good faith for purposes other than resale.
3 42 USC §5402 (7) ''Federal manufactured home construction and safety standard'' means a reasonable standard for the construction, design, and performance of a manufactured home which meets the needs of the public including the need for quality, durability, and safety;
4 42 USC §5413(c)(5) to make available to the public any information which may indicate the existence of a defect which relates to manufactured home construction or safety or of the failure of a manufactured home to comply with applicable manufactured home construction and safety standards.
5 42 USC §5413(a) – He shall furnish the Attorney General and, when appropriate, the Secretary of the Treasury any information obtained indicating noncompliance with such standards for appropriate action.
6 42 USC 5402(5) ''manufacturer'' means any person engaged in manufacturing or assembling manufactured homes, including any person engaged in importing manufactured homes for resale.
7 42 USC §5402(1) ''manufactured home construction'' means all activities relating to the assembly and manufacture of a manufactured home including but not limited to those relating to durability, quality, and safety
8 42 USC §5402(8) ''manufactured home safety'' means the performance of a manufactured home in such a manner that the public is protected against any unreasonable risk of the occurrence of accidents due to the design or construction of such manufactured home, or any unreasonable risk of death or injury to the user or to the public if such accidents do occur;
9 42 USC 5401 “The Congress declares that the purposes of this chapter are to reduce the number of personal injuries and deaths and the amount of insurance costs and property damage resulting from manufactured home accidents”.
10 'Primary Right' – a right prescribed by a substantive law
11 "Remedial Right' – the secondary right to have a remedy that arises when a primary right has been broken
12 42 USC §5409(a)(1) No person shall - (1) make use of any means of transportation or communication affecting interstate or foreign commerce or the mails to manufacture for sale, lease, sell, offer for sale or lease, or introduce or deliver, or import into the United States, any manufactured home which is manufactured on or after the effective date of any applicable Federal manufactured home construction and safety standard under this chapter and which does not comply with such standard, except as provided in subsection (b) of this section, where such manufacture, lease, sale, offer for sale or lease, introduction, delivery, or importation affects commerce.
13 42 USC §5409(b)(1) Paragraph (1) of subsection (a) of this section shall not apply to the sale, the offer for sale, or the introduction or delivery for introduction in interstate commerce of any manufactured home after the first purchase of it in good faith for purposes other than resale.
14 42 USC §5409(a)(4) No person shall – issue a certification to the effect that a manufactured home conforms to all applicable Federal manufactured home construction and safety standards, if such person in the exercise of due care has reason to know that such certification is false or misleading in a material respect
15 Section 604 is in reference to 42 USC §5403, “The Manufactured Home Construction and Safety Standards”.
16 42 USC §5402(3) – ''defect'' includes any defect in the performance, construction, components, or material of a manufactured home that renders the home or any part thereof not fit for the ordinary use for which it was intended.
17 42 USC 5414(g) The Secretary shall approve with or without modification, after consultation with the manufacturer of the manufactured home involved, such manufacturer's remedy plan including the date when, and the method by which, the notification and remedy required pursuant to this section shall be effectuated. Such date shall be the earliest practicable one but shall not be more than sixty days after the date of discovery or determination of the defect or failure to comply
18 42 USC 5414 (e) If the Secretary determines that any manufactured home does not comply with an applicable Federal manufactured home construction and safety standard prescribed pursuant to section 5403 of this title or contains a defect which constitutes an imminent safety hazard, then he shall immediately notify the manufacturer of such manufactured home of such defect or failure to comply.
19 Inviolate – free from violation, not broken, infringed, or impaired.
20 24 CFR 3282.406 – A manufacturer required to furnish notification under Sec. 3282.404 or Sec. 3282.407 shall correct, at its expense, any imminent safety hazard or serious defect that can be related to an error in design or assembly of the manufactured home by the manufacturer, including an error in design or assembly of any component or system incorporated in the manufactured home by the manufacturer.
21 24 CFR 3282.405(b) If the SAA acting under paragraph (a) finds that a manufacturer has failed to comply with Sec. 3282.404, or if the SAA finds that the manufacturer has decided not to act under Sec. 3282.404(c) where the SAA believes the manufacturer is required to act, or if the manufacturer failed to fulfill the requirements of Sec. 3282.404(f) after requesting a waiver under that paragraph, the SAA shall make such preliminary determinations as it deems appropriate under Sec. 3282.407(b), except that if the affected manufactured homes were manufactured in more than one state or if it appears that the appropriate preliminary determination would be an imminent safety hazard or serious defect, the SAA shall refer the matter to the Secretary.