Bill Text: DE HB313 | 2009-2010 | 145th General Assembly | Draft
Bill Title: An Act To Amend Titles 25 And 29 Of The Delaware Code Relating To Manufactured Home Communities And Consumer Protection Advisory Councils.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Introduced - Dead) 2010-03-31 - Reported Out of Committee (MANUFACTURED HOUSING) in House with 4 On Its Merits [HB313 Detail]
Download: Delaware-2009-HB313-Draft.html
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SPONSOR: |
Rep. Longhurst & Sen. Ennis |
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Reps. Atkins, Carson, Q. Johnson, Kowalko, Schwartzkopf, Walls; Sen. Bunting |
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HOUSE OF REPRESENTATIVES 145th GENERAL ASSEMBLY |
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HOUSE BILL NO. 313 |
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AN ACT TO AMEND TITLES 25 AND 29 OF THE DELAWARE CODE RELATING TO MANUFACTURED HOME COMMUNITIES AND CONSUMER PROTECTION ADVISORY COUNCILS. |
Section 1.Amend § 7001A, Title 25 of the Delaware Code by deleting the language currently existing therein and substituting in its place the following:
"§7001A.The
(a)The purpose of the Delaware Manufactured Housing Alternative Dispute Resolution Act is to provide a means to resolve disputes without first resorting to litigation by using alternative dispute resolution methods ("ADR").The Act requires the use of ADR by the parties if the Consumer Protection Division, or its successor, of the Attorney General's Office determines that an existing dispute or grievance between a manufactured home community owner and a tenant or a group of tenants should be referred to ADR.A broad interpretation of the provisions of this section is intended so as to further the purpose of the Act.
(b)As used in this section, unless the context otherwise requires:
(1)"ADR" means the alternative dispute resolution methods provided for in this section, unless the parties to a dispute adopt by written agreement some other method of ADR, in which event "ADR" refers to the method the parties adopted.The ADR method provided for by this section, in the first instance, is mandatory mediation.If mandatory mediation is not successful, a party or the parties, if they want to pursue further action, must then choose between binding arbitration or to initiate a cause of action in a court of competent jurisdiction.
(2)"ADR conference", as used throughout this section, shall apply to mediation as well as to arbitration, unless the context indicates otherwise.
(3)"ADR request" as used throughout this section shall mean a request from any person under subsection (d) of this section to the Consumer Protection Division requesting that a dispute be approved for ADR.
(4)"ADR specialist" means an individual who has the qualifications described in subsection (h) of this section to conduct an ADR proceeding.The ADR specialist shall, in all respects, be an objective, disinterested person, appointed by the Director of the Consumer Protection Division, or its successor, of the Attorney General's Office.
(5)"Arbitration" is an ADR method wherein the parties to a dispute are referred to an ADR specialist, who reviews the case and imposes a decision to which the parties have agreed to be legally bound.
(6)"Arbitration Hearing" as used in this section refers to any binding arbitration hearing agreed to by the parties if mandatory mediation has failed to resolve their issue.
(7)"Consumer Protection Division" or "CPD" means the Consumer Protection Division, or its successor, of the Attorney General's Office.
(8)"Director" as used in this section shall refer to the Director of the Consumer Protection Division, or its successor, of the Attorney General's Office.
(9)A "dispute subject to ADR" means a dispute that is not the basis for a pending action for summary possession in accordance with §5702 of this title.
(10)"Mediation" is a method by which an ADR specialist facilitates the parties in reaching a mutually agreeable resolution of a dispute.It includes all contacts between the ADR specialist and any party or parties until a resolution is agreed to, the parties discharge the ADR specialist, or the ADR specialist finds that the parties cannot agree.
(11)"Notice of Unsuccessful Mediation" shall refer to the notice from the ADR specialist to the Consumer Protection Division as delineated in subsection (i)(8)"
(12)"Person" means any individual, corporation, association, partnership, statutory trust, business trust, limited liability company, or any other legal, commercial, or governmental entity, whether or not organized for profit.
(13)"Tenant Legal Fund" shall be understood to mean a legal fund for tenants as created heretofore or hereinafter by the General Assembly, or a similar fund as deemed appropriate from time to time by the General Assembly.
(c)The Director may adopt such regulations, not inconsistent herewith, as the Director may deem necessary or appropriate in the administration, interpretation and enforcement of this chapter.
(d)A person who files an ADR request provided for in subsection (e) and (f) of this section agrees to submit all disputes between the parties that are ripe for resolution by ADR, at the time of the ADR request filing, to an ADR specialist.Upon the filing of an ADR request, the filer is bound by the provisions of this section.
(e) (1)An ADR request to submit a dispute to ADR must set forth:
a.The name of the person filing the ADR request;
b.The address of the person filing the ADR request, including the street, number, city, state, and zip code, which will be used to give any required notice in a dispute;
c.The name of the person(s) and/or entity subject to the dispute;
d.The address of the person(s) and/or entity subject to the dispute, including the street, number, city, state, and zip code, which will be used to give any required notice in a dispute; and
e.The nature and substance of the dispute in sufficient detail to permit a reasonable understanding of the circumstances and issues involved in the dispute.
(2)A provision in an ADR request that purports to limit the scope of ripe disputes subject to ADR, other than an action for summary possession, is void.
(f) (1)An ADR request must be filed with the Consumer Protection Division, and a courtesy copy of such request, to remain confidential as noted herein, shall be provided to the opposing party.
(2)The Consumer Protection Division shall keep appropriate records regarding all disputes which have been referred to ADR pursuant to this section, including records of who filed an ADR request, the date of the filing, whether the request was accepted or denied, and the date of acceptance or denial.In addition, the Consumer Protection Division shall maintain a record, accessible to the public on the Attorney General's website, indicating every landlord's involvement in ADR pursuant to this subchapter and the results of the case.
(3)An ADR request is to be accompanied by a payment of $30 to the Consumer Protection Division to be paid into the Tenant Legal Fund.One half of the $30 is to be paid by the manufactured home community owner and the other half is to be paid by the tenant or a group of tenants.The payments will be refunded if the CPD does not submit the dispute to ADR.At the sole discretion of the Director, all or part of this fee may be waived.
(g)If the Director determines that an ADR request or any other dispute or grievance between a manufactured home community owner and a tenant or a group of tenants should be referred to ADR, then ADR shall be mandatory.A manufactured home community owner or a tenant or a group of tenants who are the respondents in a dispute for which an ADR request has been filed with the Consumer Protection Division, shall submit to an ADR conference.Failure to participate, in good faith, in an ADR conference shall be punishable by a civil penalty as set forth in subsection (i).All civil penalties are to be paid into the Tenant Legal Fund.
(h)The ADR proceeding shall be conducted by an ADR specialist who:
(1)Has successfully completed at least twenty-five (25) hours of training in resolving civil disputes in a course or program approved by the Delaware State Bar Association; or
(2)Is registered as an active member of the Delaware Bar, together with a minimum of five (5) years of experience as a practicing attorney.
(i)The ADR conference.An ADR conference must be scheduled in consultation with the parties within thirty (30) days of the date of determination by the Consumer Protection Division, or its successor, of the Attorney General's Office that the dispute shall be referred to ADR, and the ADR conference must be held by the ADR specialist and the parties within sixty (60) days after scheduling, unless otherwise agreed by the ADR specialist and the parties.Before an ADR conference begins, the ADR specialist shall provide the parties with a written statement setting forth the procedures to be followed therein.
(1)All persons necessary for resolution of the dispute must be present at the ADR conference.All parties must participate in good faith in the ADR conference.If a party fails to participate in the ADR conference in good faith, as such term is commonly understood and as determined at the discretion of the ADR specialist, the ADR specialist shall immediately terminate the ADR conference and file a report with the Director setting forth the reasons for such termination.After reviewing the ADR specialist's report, the Director may hold an administrative hearing to determine good faith participation by such party.Any party that is determined, at such hearing, to have intentionally failed to appear for at ADK conference and/or has failed to participate in the ADR process in good faith shall be subject to a civil penalty of not less than $250 and not more than $1,500, for each instance charged, dependent upon the egregiousness of the party's conduct.All fines are to be paid into the Tenant Legal Fund.
(2)In conformity with procedures established by the ADR specialist, the parties to a mediation shall each be required to provide, to the ADR specialist only, a Confidential ADR Conference Statement fourteen days prior to the start of a scheduled mediation conference.The ADR specialist may impose requirements as to the content of the ADR Conference Statement.
(3)The ADR specialist shall provide all parties with a list of agencies that may be able to assist an unrepresented party, such as the Delaware Volunteer Legal Services, Inc. (DVLS); Community Legal Aid Society, Inc. (CLASI); and Legal Services Corporation of Delaware, Inc. (LSCD).
(4)Prior to commencement of the ADR conference, the parties and the ADR specialist shall sign a written agreement that must include an explanation of the following:
a.The rights and obligations of parties to the ADR conference; and
b.The confidentiality of the ADR conference.
(5)All memoranda, documents, work product, and other materials contained in the case files of an ADR specialist or a court related to the ADR proceeding are confidential.Any communication made in or in connection with an ADR conference, relating to the dispute, whether made to the ADR specialist, a party, or to any person, is confidential.The ADR request is confidential unless the parties otherwise agree in writing.Confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding except:
a.If all parties to the ADR conference agree in writing to waive confidentiality;
b.In an action between an ADR specialist and a party to the ADR for alleged damages arising out of the ADR;
c.Statements, documents, memoranda, materials, and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in, and were not used in, the ADR conference; or
d.In an action by the CPD to recover civil penalties pursuant to this section.
(6)The ADR specialist shall assist the parties to an ADR conference to reach a mutually acceptable resolution, if any, of their dispute through discussion and negotiation. If the parties involved in a mediation conference reach a settlement, the agreement must be reduced to writing by the ADR specialist, unless the parties otherwise agree as part of their settlement that they will prepare the written agreement.The written agreement must be signed by the parties and the ADR specialist.The ADR specialist shall encourage unrepresented parties to the mediation conference to consult with counsel prior to executing any ADR agreement.A party is not bound by anything said or done at the ADR conference, except by a settlement agreement, if a settlement is reached.A settlement agreement must set forth the terms of the settlement of the disputed issues and the future responsibilities of each party to the agreement.Once signed by the parties, the settlement agreement will constitute the entirety of the binding settlement.The agreement shall be binding on all parties to the agreement.
(7)The ADR specialist may terminate the ADR conference if the parties are unable to reach agreement, despite the parties' good faith efforts.Such a termination is without prejudice to either party in any other proceeding.A sanction or penalty may not be imposed on a party based solely on a party's good faith inability to reach an agreement.
(8)If the ADR specialist terminates the ADR conference after determining that the parties involved are unable to reach a settlement, the ADR specialist shall, within thirty (30) days of such determination, file with the Consumer Protection Division a Notice of Unsuccessful Mediation and serve a copy on each of the parties, by registered mail, advising that mediation was not successful.
(j)The outcome of the ADR conference must be reported to the Consumer Protection Division.Memoranda and documents submitted to an ADR specialist, statements made during the ADR, and notes or other materials made by the ADR specialist or any party in connection with the ADR conference shall remain confidential, unless the parties have agreed otherwise, and, accordingly, are not subject to discovery, may not be introduced into evidence in any proceeding, and may not be construed to be a waiver of any otherwise applicable privilege; notwithstanding the preceding, nothing in this section limits the discovery or use as evidence of documents and other materials that would have otherwise been discoverable or admissible as evidence but for the use of those documents or materials in the ADR conference.
(k)The ADR specialist has the same immunity that an ADR specialist would have if the ADR specialist were a judge acting in a court with jurisdiction over the subject matter and the parties involved in the ADR.
(l)Subsequent to mandatory mediation, if the parties are unable to reach a settlement, and decide to pursue further action, the parties shall choose between:(i) binding arbitration and (ii) filing a complaint with a court of competent jurisdiction.If the parties opt for binding arbitration, the parties must make a joint request to the Consumer Protection Division for an Arbitration Hearing, in writing, within 10 days of receipt of the Notice of Unsuccessful Mediation.Similar to the initial ADR request for mandatory mediation, the request for an Arbitration Hearing must be accompanied by a payment of $30 to the Consumer Protection Division to be paid into the Tenant Legal Fund, with such payment waivable at the discretion of the Director.The ADR specialist shall rule on the parties' dispute within 30 days after the Arbitration Hearing is concluded.Such ruling shall be binding on the parties.
(m)The initiation of ADR under this section suspends the running of the statute of limitations applicable to the dispute that is the subject of the ADR from the date of the referral of the issue to ADR, until fourteen (14) days after the later of:(i) the date of denial of the ADR request by the Consumer Protection Division; (ii) the date of the ADR specialist's Notice of Unsuccessful Mediation; or (iii) the date a request for an Arbitration Hearing was denied by the Consumer Protection Division.".
Section 2.Amend Chapter 25, Title 29 of the Delaware Code by striking section 2519 thereof in its entirety.
SYNOPSIS
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This bill amends existing section 7001A, Title 25 of the Delaware Code by making several revisions to the existing alternative dispute resolution methods ("ADR") that are to be followed by the parties.Among the improvements to this section, the bill clarifies that:the ADR specialist must be an objective, disinterested person; the parties must attempt to resolve their differences first by taking advantage of the ADR procedures existing in the Code, prior to initiating litigation; the parties must attempt in good faith to resolve the dispute or, if they do not make a good faith effort to do so, sanctions will be imposed, and all persons necessary to resolution of the dispute must be present at the ADR conference. Then, after attempting mandatory mediation, a party or the parties, if they want to pursue further action, must choose between binding arbitration and filing a cause of action in a court of competent jurisdiction.Additionally, this bill strikes section 2519, Chapter 25, Title 29 of the Delaware Code relating to the Council on Manufactured Housing. |
