Emory Law Journal

Volume 65Issue 1

Are Fannie Mae and Freddie Mac State Actors? State Action, Due Process, and Nonjudicial Foreclosure

William E. Eye | 65 Emory L.J. 107 (2015)

This Comment considers whether the federal conservatorship of Fannie Mae and Freddie Mac transformed these entities into state actors subject to constitutional constraints. In particular, it analyzes whether Fannie Mae and Freddie Mac must provide homeowners with due process—namely notice and an opportunity to be heard—when they initiate nonjudicial foreclosures. Application of the state action tests from Lebron and Brentwood Academy most persuasively suggest that nonjudicial foreclosures initiated by Fannie Mae and Freddie Mac must satisfy due process requirements. Ultimately, this Comment concludes that Fannie Mae and Freddie Mac are state actors under the entwinement test. However, because courts are reluctant to find state action where the government regulates the secondary mortgage market, it remains unlikely that Fannie Mae and Freddie Mac will be required to provide notice and an opportunity to be heard to homeowners facing nonjudicial foreclosure.

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Changing the Rule Changes the Game: A Rule 68 Offer for Complete Relief Should Never Moot an Individual’s Claim

David Marc Rothenberg | 65 Emory L.J. 155 (2015)

Although Rule 68 was designed to facilitate settlements, defendants have attempted to use Rule 68 offers to moot individuals’ claims. These defendants argue that by offering their understanding of complete relief to a plaintiff, the claim should be mooted. In the past four decades, a circuit split has arisen over whether Rule 68 offers can moot claims and whether judgment should be entered for the plaintiff or the defendant. This Comment advocates for the adoption of the Ninth Circuit’s holding in Diaz v. First American Home Buyers Protection Corp.—referred to in this Comment as the Diaz approach—which states that a Rule 68 offer never moots an individual’s claim. This Comment explores relevant historical jurisprudence that has led to the various legal theories involving mootness in Rule 68 offers. Ultimately, this Comment concludes that by applying the Diaz approach to Rule 68 offers, courts will return Rule 68 to its intended goal: incentivizing settlements without burdening the courts.

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