Rov_Scam
1d ago
For the purposes of the law in question, the prohibition on giving a third part control over the user's occupancy goes hand in hand with the prohibition on agreements that require the property to be rented out. The big issue with the "second home as investment property" fraud was people buying beach houses and the like and saying that they're second homes when they're really investment properties. One of the surest signs of this is when they contract the business end out to a rental company that markets the property, arranges the rentals, collects the money, provides a cleaning service, and does all the other things that the true owner of a non-investment second home wouldn't do. The second home policy explicitly allows for leases, though, the idea being that an owner who occasionally used the property would also occasionally lease it out when they weren't there. If they're handling this business themselves, it's likely they're doing it in good faith. If they hire a management company to do it and are only guaranteed a week a year in the offseason for personal use, then it's almost certainly an investment property.
Rov_Scam
1d ago
As I made clear in a comment below, the window example would only apply in a situation where you had a casement window where the sill was less than 3 feet above the floor and more than 6 feet above the outside ground, which is basically nowhere. I don't think I have ever been in a building that has such a window. I don't even think I've been in a building with a double hung window that would meet these requirements, but at least in that case you'd be able to adjust it so the top part slides down and the regulation wouldn't apply.
Rov_Scam
1d ago
It still doesn't make much sense. Say you're on a 150 mile road trip. 50 miles are on normal roads where you can expect to average 50 mph accounting for traffic, hills, lights, stop signs, slowing down for curves, and all the other little things that keep you from maintaining constant speed. The other 100 miles are on open highway with a 70 mph speed limit. An hour is already accounted for either way. Strictly doing the limit will get you through the stretch in 86 minutes. Averaging 90 will get you through in 66 minutes. So 126 minutes vs 146 minutes, or about a 20 minute savings over more than 2 hours.
Except most people would bump that up to 75 and not consider it speeding, so now you're down to a 15 minute advantage. Which completely evaporates when you realize that if you do 20 over the limit for 100 miles straight your chances of getting pulled over are close to 100%. Plus you're now skittish and won't drive over the limit. If it happens halfway through the stretch you got dinged 33 minutes in, and it will take you an additional 43 minutes to complete the stretch. So you've completed it in 86 minutes, saving a grand total of 10 minutes in travel time, less the 10 or 15 minutes for the traffic stop, less the cost of the fine, less the additional fuel you used going 90 miles and hour. If there's a benefit here I'm not seeing it.
Rov_Scam
1d ago
The reason for the 0–100 uptake in ski helmets is that once you've worn one, you can't imagine going back to not wearing one. The safety advantages are controversial. The comfort advantages are not. On most days the helmet is all the insulation you need. On unusually cold days they hold underlayers in place better than a knit cap possibly can. On warm days they have vents that open up. On all days things are much more put together than they were in the days when you'd try to cinch all your headgear down with the goggle strap, and if you were unfortunate enough to crash, lose everything and get a nice crush of snow on your neck and head. And then have to pick up a hat that was covered in frost inside and out. And when you go inside, the snow doesn't melt and soak your helmet. And you can put bluetooth speakers in the ear pockets and have headphones that you can easily control with a gloved hand.
Helmetless biking is fine if you're riding on bike paths or flat roads with little traffic. If you're riding in traffic or on more topographically interesting terrain they're a good idea, and if you're mountain biking they're a necessity. Every once in a blue moon I'll see someone in the woods without a helmet and it's almost always a guy with a cheap bike not suited to the trail and nothing else to indicate he has a clue what he's doing. Either that or kids in West Virginia who can't really ride anything to begin with because the trail is too rugged.
Rov_Scam
1d ago
I serve on a nonprofit board that does work in a state park, and while I can sympathize with this guy's plight, I understand why the parks people acted the way they did. The explanation they gave him about parks in poorer areas, etc. was bullshit. Not without some truth, but bullshit in the sense that there's more to the story and it was a simple explanation they could give him for why they were saying no. The grain of truth was that if people who live in low income areas (whose parks may be in worse condition) see that a higher-income area is getting new playground equipment, they're going to bitch to the board about it and that's a headache the board doesn't want to have to deal with. But that's not really the reason.
The real reason is that the guy knows that there's no way in hell that this is happening if they say yes and it's easier to just say no and stop it right there than to let this progress any further and waste time and money. The way this guy rambles my thought was that if he came across to the parks guy the way he comes across in the video there's no way he's getting anywhere. I don't know what you mean by him being given the run around for weeks. It's hard to get the timeline down because of the rambling, but it looks like he followed up after not hearing a response for 12 hours, and was then given the option of a phone call or in-person meeting. He then said he declined the meeting because he didn't want to drive to the guy's office, which shows his lack of seriousness right there, and schedules a phone call which he then postpones, possibly because he actually was busy, possibly because he wanted to waste the guy's time, it's hard to tell, and was then disappointed that the guy offered to reschedule it for the following business day.
I honestly don't know what the guy's strategy was, or what he was even looking to do. At one point he seems sure that the guy s going to tell him it's going to cost hundreds of thousands of dollars to install a $500 slide. No, not quite, but it's clear that this guy is clueless. You can't just buy a slide from Home Depot, sink a few holes in the ground, and call it a day. I mean, you can, but that slide isn't going to last a full season without falling apart. I have catalogs of various park products our private group orders with their own money for public use, and while I don't normally look at the playground equipment, a slide costs $5,000 on the low end for small one for toddlers up to about $15,000 for a fancy deluxe one. A typical basic 8 foot slide would run around $10k. Then there's installation, which is going to involve digging post holes for concrete footings on the supports, which is going to run at least another few thousand. And that's American. Northernlion, of course, has no idea where one even buys this kind of thing, or knows whether these supply houses even deal with the general public or if you have to have an account and a sales rep assigned to you, or what kind of contractor you call to even do this work.
He wants to blame all this extra expense on bureaucrats lining their pockets, but prices are what they are, and contractors charge what they charge. What does he expect the parks department to do, install a slide and send him a bill hoping he pays it? Waste time going through the equipment selection and ordering process only for him to back out when he finds out he can't afford it? The reason they asked him if he wanted to buy naming rights or ad space or a brick or whatever was because if this guy actually has enough money to pay for a slide installation then he has enough money to contribute to the capital projects the park has prioritized. If he'd expressed interest in that then they may have taken him more seriously about the slide since he'd obviously have the money, and they aren't going to ask how much he's willing to spend because they don't want the meeting to end with him being humiliated or assuming the high totals are due to corruption.
So they give him an excuse that is partially true. One of the things that any private group needs to take into consideration is that the agency they are dealing with is governed by a long-term plan. They have a vision of what they want the parks system to look like in five years, or ten years, or whatever, have an idea of how the vision is going to be funded, and how they're going to implement things. This is a process that the public is invited to collaborate in, but few do. The people who do collaborate are more influential than people like this guy will give them credit for; public comments are taken seriously. Just because you offer to pay for something doesn't mean they're going to let you do what you want. They may be willing to deviate from the plan, but it's not like any Tom, Dick and Harry can just submit proposals and get the green light.
I've spent the last decade trying to get trail built. The park has about 80 miles of existing trail, most of it built in the 1960s on old logging roads. These are in rough shape and vary between swampy and eroded due to poor design. They require a lot of maintenance just to stay passable, and many are beyond repair. The biggest hurdle we had with any proposals that we would build and pay for ourselves were along the lines of "We already have 80 mile of trail we can't maintain, so you have to show us that you have the manpower to take up some of that burden before you can add mileage." This is the kind of goodwill that takes years to establish. They don't want a group that comes in with enthusiasm and builds ten miles of trail, only to have that enthusiasm fade over time and end up with overgrown, unmaintained trail. It's happened in other places. If you want to be taken seriously you have to do it as part of an organized group that demonstrates that it deserves to be taken seriously. This isn't beyond the capability of anyone who is willing to put in the time. But too many people aren't, and bureaucrats are wary of people with ideas that they can't commit to. Saying "If you want to help here are some projects you can donate money to" is easy because he can donate to his ability or desire, and it doesn't require any follow up. Building a playground feature immediately puts him on the hook for more than he likely realizes, and commits him to possible future obligations (Is the park going to be expected to maintain this equipment, or does he have money for that too? Will they be able to send him a bill for repairs? Is he willing to donate to a capital fund? Will he get fixed if it breaks a few months after opening and the park doesn't have money allocated to fix it?)
As for the window thing, the code only requires those guards to be placed on windows that are below 2 feet above the floor and 6 feet above ground; i.e. it doesn't apply to most windows people have in their homes., i.e. it only applies to the kinds of windows a toddler would be liable to crawl out of without the assistance of a chair or something. If your windows do not fit this description than it's on the landlord, not the municipal government. I'm not sure where you're getting the 90 cm from.
Rov_Scam
2d ago
No, it doesn't. It wasn't really something I thought about until I had my own business and tried to switch to LibreOffice to save money, but I started getting flashbacks to when I was in college and doing something that's relatively simple these days meant navigating a ton of menus and submenus to find what I was looking for. I'll never get the ribbon hate. All it is is consolidating menus and toolbars into a series of tabbed toolbars. Not having a ribbon meant that if they wanted to add a new feature they'd either have to bury it in a submenu where nobody would find it or add it to a toolbar where it would take up an inordinate amount of space. Ignoring customization, I can't think of a single thing that's harder to do with a ribbon than it was to do with the mess of an interface Word used to have.
Rov_Scam
3d ago
Unless, like me, you like to watch videos on an actual television, and don't want to figure out how to side load apps. That being said, I don't pay for You Tube, just suffer.
Rov_Scam
3d ago
It depends on what you're using it for. For basic shit, Google Docs is okay. When using it for work, it's impossible. I had a job a few years ago where they wanted us to do everything in Docs so a current edition of our work was always available on the cloud. I flat out refused to do this and just did it in Office and uploaded everything, much to my bosses' consternation. It was a 1099 job so they technically couldn't tell me how to do my work, and now I use Office at work. But my early attempts to comply with Google Docs led to me slamming my head on the desk.
Rov_Scam
3d ago
You still have to use crappy Linux-equivalent software designed by the kind of people who are convinced that Office 97 was the best Office.
Rov_Scam
5d ago
To be clear, he wasn't a backup at that point. Denver had given up their 2nd, 3rd, and 4th round picks to be able to draft him (even though they probably could have drafted him later), and once Kyle Orton was benched there was no expectation that he was going to be anything but the starter. The team received a lot of criticism at the time for giving up essentially their entire draft to reach for a guy who nobody else was seriously interested in. The idea initially was that he could be in some kind of RB/QB/TE/WR combo role, but after he was drafted he made it clear that he was only interested in being quarterback. People who knew football could tell that he wasn't the answer, but Tebow fans only saw the Ws piling up. As soon as the Broncos signed Manning the following offseason Tebow was promptly traded to the Jets in a move that their then-GM admits was a mistake, especially since the circus he would bring was unneeded on a team that was probably going to lose anyway, especially in a media environment like New York. To be fair there were other reasons why they had to trade Tebow that are strictly football-related, but his career fizzle in New York, and even though he had been demoted to third string by the end of the season, he was still the subject of disproportionate media and fan interest.
Rov_Scam
5d ago
I don't even know who this person is or why I should care. I googled the name and nothing about any controversy came up. Google news was all about the woman she portrayed in the movie that flopped defended her performance after someone else involved in the true story criticized it. Whatever this is, it isn't news.
Rov_Scam
6d ago
I was referring to the Epstein stuff specifically and make no comment on anything else that may have happened. I've written about this extensively in the past; suffice it to say that I don't think there are going to be any bombshells, and I doubt that there are any "lists" at all. I don't like Trump but I'm more suspicious of him than I was previously for the simple reason that he leaned into this whole conspiracy until it was time to release the files. There's obviously something in there he'd rather not make public, or, alternatively, he hasn't seen the files and there's something in his past that he's worried may come up. I don't think it would be criminal. My first guess was going to be that he stayed in contact with Epstein well after any decent person would have cut ties, but the recent emails seem to undercut that theory; in the "dog that didn't bark" email he talks about Trump in a manner that suggests they aren't in regular contact.
The thing that's weird to me about the whole thing is that anyone who has studied this closely and isn't a total hack like Daryl Cooper would be of the opinion that it's highly unlikely that anyone other than Epstein and a few select people were involved in the wrongdoing. Nothing about Trump came up in the civil lawsuits, and the 2020 report about the original prosecution made it clear that no one in the Justice Department even knew that Epstein had famous friends until his attorneys told them. To be clear, the "Epstein Files" as it pertains to this case only involve the files from the Federal Investigation, and the only investigation that could have possibly revealed anything spicy would have been the 2019 investigation.
Rov_Scam
6d ago
Any wolf crying on the part of Trump's opponents is a relatively recent phenomenon. The narrative among the conspiracy-minded for the better part of the past five years was that the Biden Administration was concealing the Epstein Files to protect prominent Democrats, and that Trump would release them so these people could face the music. Or at the very least everyone would learn how depraved they all were. The only comments about this I ever heard from IRL friends on the left was that the logic behind this was ridiculous because Trump was close with Epstein and it would take a lot of faith to believe in the conspiracy yet not any involvement from Trump. And it wasn't a topic that came up that frequently. I didn't hear Democrats talking about this much at all until Trump went out of his way to say there was no conspiracy and prominent Republicans started echoing that sentiment. People like Charlie Kirk reversed course on the whole thing. Now my friends on the left started saying that they weren't suspicious before but were now because otherwise why would Trump be so adamant about keeping these confidential?
Rov_Scam
6d ago
The Tebow hate had very little to do with politics. While he was vocally anti-abortion and his politics were assumed based on his religious affiliation, he never made any direct statements about Obama or anything like that, or even claimed to be a Republican. The religion thing is a bigger part of it, but still not as big as people make it out to be. He won two National Championships and a Heisman Trophy while at Florida, and was about as prominent a celebrity as exists in college football, which isn't quite the NFL but is still pretty big. Even when he was inspiring rule changes after putting Bible verses in his eye black, he still didn't seem to inspire too much hate.
When it came to the NFL, though, Tebow was an athlete, which in the pros is damning with faint praise. He had no special ability to play quarterback, but was able to be successful in college by relying on his natural athleticism. There's a YouTube clip of Ray Lewis and Ed Reed talking to rookies about the importance of watching film, and one of them says that in college they may have been able to run and jump their way to success, but in The League that wasn't going to work. Tebow was successful in college because he was a big guy who could plow his way forward on QB runs or out of a scramble, and played in a system where he wasn't expected to win games with his arm. He was regularly among the leaders in rushing yards among QBs in the top college ranks (and not too far from one of the top rusher's, period), and he led the SEC in all kinds of passing statistics, but pretty much everyone who saw him play could tell that his ability was limited. His footwork was terrible, and his throwing motion was so long it would make Byron Leftwich blush, resulting in high, looping passes that could work if the receiver was "NCAA open" but didn't have a chance at hitting the tighter windows in the NFL. He had no concept on how to read pro defenses. His decision-making was terrible. Even his rushing ability, his strong suit, was built less on speed and more on sheer power.
the NFL at that time was at one of its various low-ebbs when it came to dual-threat quarterbacks. The last one drafted of any consequence had been Michael Vick in 2002. The last one drafted period had been Pat White, the year prior. And though his time at West Virginia was successful enough that fans wore white in honor of him at their last home game, he only lasted one year in the pros, never completing a single pass. The tide would start to turn the following year with Cam Newton, and reach its crescendo after the success of Josh Allen and Lamar Jackson led every head coach to salivate over what could be done with a raw mass of pure athleticism. But that tide is turning now after the failures of guys like Trey Lance, Malik Willis, and Anthony Richardson. And Tebow had less obvious ability than any of them. After he graduated, there was talk that he'd have a future in the NFL as a tight end or maybe a fullback, but Tebow was having none of it. This had been suggested before, but he insisted on playing quarterback. Coaches had been trying to fix his mechanics since high school, but he could always fall back on his athleticism so he had no incentive to change. By the time he got to the NFL, these problems had become so ingrained that they were beyond coaching; even if he made improvement, if under pressure he could only be expected to revert to what he knew from muscle memory.
All that being said, quarterbacks are at a premium in the NFL, and in a draft class thin on QBs, Tebow was taken by the Broncos in the first round. He didn't see the field much in 2010, but the following year, with Kyle Orton being terrible, he was given a shot, and he made the most of it. That isn't to say he was good, exactly, but he won games. He'd pass for like 16 yards in the first half but the defense would keep the game close and Willis McGahee would get yards on the ground and in the fourth quarter he'd get a few good completions, march down the field, and win the game in the final minutes. He even won a playoff game, and though the Broncos promptly lost the following week, he now has more playoff wins than Justin Herbert, Andy Dalton, and hall-of-famer Y.A. Tittle.
In other contexts, this wouldn't have been a problem, but Tebow's existing public profile and relationship with the media did him in. If the same results were had by a nobody like and Easton Stick or Sam Ehrlinger type, the story would be about the defense and the running game and how they're winning despite expectedly poor QB play. If it was a guy like Duck Hodges who was working on a sod farm or something before getting the call to the big leagues, it would be a story about determination and never giving up. If Tim Tebow is the same person, except his personality is such that he's arrested for firing an unlicensed handgun during an altercation outside a nightclub, it wouldn't have made him more likeable, but the story would be about how he's a gritty guy who can take a sack and run for a first down on third and three.
But what doesn't fit is a guy who has won two national championships and a Heisman, who was drafted in the first round, who had a big enough public profile to do endorsements, to play so poorly and be rewarded for it by winning. He was already enough of a national celebrity by that point that whatever he did in a game was going to be newsworthy, and the Christianity threw the whole thing into overdrive. The fact that he was openly Christian wasn't the issue; there are plenty of pro athletes who have made their religious beliefs known. Phillip Rivers is also an Evangelical, and no one seemed to ever give him shit for it. But, aside from being a far better athlete, Rivers was also never as in-your-face about it as Tebow was. He went out of his way to make his religion a story, thanking God in every interview and genuflecting in the end zone. It became cloying, and in the light of the Broncos continuing to win in spite of his poor play, one could be forgiven for getting the impression that he was specifically attributing his teams success to divine intervention. Furthermore, he became a lodestar for people who cared more about religion than sports. His jersey was among the best-selling in the NFL. The people who wished him the most success, though, apart maybe from people in Denver, were those who weren't so much impressed with his playing ability as they were his evangelism.
Tim Tebow was hated because he completely upended puplic perception of what a pro athlete was supposed to be. If he had played better the religion would have seemed less important, and his success would be deserved. If his poor play cost his team games, he'd be another bad quarterback on a bad team and nothing special. Maybe Orton gets his job back.If it turned out his personal life wasn't as squeaky clean as he made it out to be, then the ensuing scandal would overshadow anything about his play or his religion, and the holy rollers who were buying his jerseys would be disowining him, and even if the Broncos continued on their trajectory, fewer people would care. But the right combination of things happened to allow religion to overpower sports, and fans don't like that. I'd talk about Kaepernick more, but it's more or less the same story, except with politics—a player with an existing public profile from (college, making the Super Bowl) ignites a national discussion about (religion, politics) far out of proportion to the player's actual ability. People have limited tolerance for these things being allowed to creep in where they don't belong, and to the extent that it's inevitable, they prefer that it at least involve someone whose value as an athlete justifies cutting them some slack. When the catalyst is a mediocre to awful player, and those most invested in taking the player's side aren't those typically invested in the game itself, things can turn ugly.
Not the OP, though I'll tag @MadMonzer, but I am an attorney and there are a few things here that we need to clear up. There are three categories of mortgages: Primary residence, second home, and investment. We can forget about primary residence since nobody is claiming that this was a primary residence. The question we are therefore dealing with is whether this is a second home or an investment property; there are no other categories available.
Primary residences get the most favorable treatment. Correspondingly, the most common type of mortgage occupancy fraud is mischaracterizing an investment property as a primary residence. Second homes carry higher interest rates than primary residences; if you fall on hard times you're going to prioritize keeping a roof over your head over making payments on the ski condo. Investment properties traditionally carried even higher interest rates (note the past tense) because, as investments, the borrower's ability to repay is often contingent on the success of the business. The disadvantage of the higher interest rates and down payments was offset by the ability to use projected income off the property to qualify for the loan. The risk to banks of mischaracterizing an investment property as a primary residence or second home was that the bank wouldn't be properly pricing in the additional risk profile of the borrower, who may be able to afford the property on paper but may in fact be relying on rental income to make the payments.
Keeping that in mind, there are two critical weaknesses to the prosecution's case. The first is that they have to prove that James knowingly and intentionally made a misrepresentation to bank officials. The only evidence they have of this is her signature on a boilerplate rider that was signed at the closing along with a sheaf of other documents. Anyone who has ever purchased a home, including the people who will be on the jury, knows that the documents you sign are selected by the bank based on their understanding of the situation. The borrower isn't drafting these things themself and presenting them to the bank as representations. They are simply memorializations of what is already understood. In other words, everyone on the jury is going to understand that the bank included that rider based on conversations they had with James regarding the use of the property.
If have read that the investigators uncovered witnesses who corroborate James's story that she was forthright about what she wanted to do with the property. Unless the prosecution can produce someone from the bank who is willing to testify otherwise, this case is dead in the water, and even if they do produce such a witness, it muddies the waters but doesn't necessarily mean there's enough to convict. One guy who doesn't remember something that five other people remember isn't going to move the needle much, unless that one guy was in a better position to know. I haven't been able to find details about this evidence, so tke this with a grain of salt, but assuming it does exist, it more or less ends the prosecution right there unless they have something big.
Even without this evidence, though, the case still isn't a slam dunk. Fraud is unusual in the criminal world in that the intent requirements are very specific, and honest mistake is a defense. If nothing was said about the use of the property other than the signed rider, and the decision to use that particular rider was entirely on James, she could credibly argue that she didn't represent the property as an investment property because it wasn't an investment property and was never intended to be. This is supported by the evidence, considering that her proceeds from the deal have thus far amounted to $1,300 in 2020 and nothing since.
But even going beyond that, if we assume that indeed she did intentionally make a misrepresentation to the bank, for it to be fraud that misrepresentation has to be material. Say you're buying a used car from a private seller. Certain things would be material to your decision to purchase: Age, mileage, accident history, repair history, etc. Suppose the seller claims he drove it cross-country last year and everything went well, and you found out later that this was a lie. He may have intentionally lied to you in order to mislead you into believing that the car was more reliable than he had any reason to believe it was, but if this statement didn't influence your decision to buy the car, there's no fraud. The upshot for James is that she doesn't even need witnesses to remember conversations from five years ago, only witnesses who will testify that if they had known about her true intentions at the time it wouldn't have changed anything.
There's another aspect to materiality that goes to a similar defense; while showing lack of financial benefit isn't a great defense in the sense that it doesn't negate an element of the offense, juries in general are unlikely to convict for fraud if the alleged perpetrator didn't benefit from the lie, or if the benefit was minimal. The two benefits one gets from classifying a property as a second home as opposed to an investment property are a reduced down payment requirement and reduced interest rates. The reduced down payment isn't a factor here because James put the same amount down as she would have on an investment property. The only possible motivating factor was the reduced interest rate. A representative for the bank told investigators that had the property been classified as an investment it would have increased the interest rate by a quarter point to a half point. One thing that hasn't been covered much, though, is how little money is involved. This house sold for $137,500. She put 20% down. Classifying it as an investment property would have cost James an extra $15–$30/month. These are not exactly the kinds of benefits one typically makes intentional misrepresentations over.
The Justice Department tried to dress this up as best they could and claimed that she defrauded the bank out of more than $17,000 over the 30-year life of the loan, but this is disingenuous. First, they didn't like the number the guy from the bank she actually used gave them, so they got another expert to testify to the grand jury that the rate increase would be closer to 0.8%. Then rather than use an average length that one would expect her to own the property, they assumed that she would live to age 92 and wouldn't sell, die, refinance, or pay off the mortgage in the meantime. They also assumed that a dollar in 2050 would be worth the same as a dollar in 2020; they should have applied a discount rate based on expected inflation.
All of that is before we even get to whether she violated the terms of the rider itself, which it is not clear that she did. The first thing the rider requires is "Borrower must occupy and use the Property as Borrower’s second home." Unfortunately, neither the rider nor the Federal mortgage regulations define any of the operative words including "occupy", "use", and "second home". A gander of the 1983 edition of Black's Law Dictionary in my office doesn't define "second home" but defines "occupy" and "use" in general terms suggesting some sort of control but without imposing any specific requirements that would be relevant here. Luckily, we can look at the rest of the language to get some clues as to what this means.
The next section states "Borrower will maintain exclusive control over the occupancy of the Property, including short-term rentals, and will not subject the Property to any timesharing or other shared ownership arrangement or to any rental pool or agreement that requires Borrower either to rent the Property or give a management firm or any other person or entity any control over the occupancy or use of the Property". Now we're getting somewhere! I flesh this out in another comment, but if you've ever rented a vacation property, you probably haven't dealt with the owner directly. The way this is typically done is the owner enters a management contract with a rental company that handles the business end of things including marketing, payments, repairs, cleaning, booking, etc. in exchange for a hefty percentage of the rental price. They aren't going to enter such a contract without access to the most profitable days in peak season, so the owner's ability to use the property himself under these contracts is often limited to a couple selected weeks during the offseason.
A guy I went to law school with bought such a property near a lake that he let the group I was with stay in for free a couple times for bachelor parties. By "free" I mean that he charged us $500/night; he wasn't getting anything himself, but there was a minimum "friends and family" rate that the rental company required him to charge to cover the costs of having the house occupied. Everything was still handled through the rental company, even though we knew the owner. In other words, the type of occupancy the clause requires is more of a constructive occupancy than a physical presence. James did not delegate the rental of the property to a third party; any agreement she made was directly with the occupant. She had control over whether her grandniece could stay there. People elsewhere have mentioned that the occupant was subject to eviction laws, but this isn't dispositive. While eviction proceedings can be drawn out, the arrangement James had was a tenancy at suffarance under Virginia law (no written agreement, no rent paid), and the tenant was only due three days notice.
The relevant part of the clause concludes "Borrower will keep the Property available primarily as a residence for Borrower’s personal use and enjoyment for at least one year after the date of this Security Instrument...." Again, we have language that implies a requirement of control, not of actual possession. There is no requirement of any particular personal use, only that the property is kept available for such use. Aside from the minimal three day notice requirement mentioned above, there is nothing that would have precluded James from using the property while her grandniece was living there. When a landlord and tenant enter into a normal lease, the lease typically precludes the landlord from entering the property except in specific situations; he can come in if he needs to fix something, but not just to hang out. People living in the homes of relatives for free without written lease agreements do not enjoy these same privileges. Ask any 23-year-old who moved back in with his parents after college if he can limit their use of the property. Even if they spend most of the time at their condo in Myrtle Beach.
Even still, several witnesses told investigators that James did use the property when visiting family in Virginia, though she did not stay at the house overnight. Prosecutors seized on this as evidence that she did not occupy the property, but this is a rather specious argument. It's already ambiguous at best whether the language in the rider actually requires the borrower to be present on the property at all. But they want to read into the statute a requirement that a certain number of overnight stays are required. They also want to extend the damage period to the entire 30 year term of the mortgage, even though the restrictions are only in operation for one year, consistent with the idea that someone relying on rental income wouldn't be able to afford to wait a year before leasing the property. the $17,000+ they want to claim she defrauded the bank of goes down to $10,800 if you use the bank's actual high-end numbers, which goes down to $5,400 if you use the bank's actual low-end numbers, which goes down to $800 when you realize that they can only claim the first year of payments as damages (the math is goofy since the amortization schedules are front-loaded).
As for how this compares to Trump, he was charged with hundreds of instances of misstating property values to obtain favorable mortgage terms. Yes, there's some uncertainty with regard to valuations, but he did stuff like inflate square footage and factor in potential development that was prohibited by deed restrictions. And this wasn't a one-time occurrence but a pattern of behavior that went on over years. He saved hundreds of millions of dollars in interest fees. And with his organizations going into bankruptcy six times over the years, he wasn't exactly a low-risk borrower. The fact that he made intentional misrepresentations of material facts in order to achieve a significant financial benefit was undisputed, even by his supporters. The argument was simply that because he paid the money back, no harm, no foul. Well, notice that in the preceding 2,000 words I made no mention at all of the fact that James (presumably) paid the money back according to the terms of the loan. I don't even know if she did, because it isn't relevant. And neither is the fact that this isn't usually prosecuted, another typical Trump defense line.
One final thing I would caution. Remember how back at the beginning I said that the past tense was important? Well, that's because second home mortgages don't get preferable treatment anymore as compared to investment properties. It used to be that using a rental company was the only way to consistently guarantee short-term rental income, and their use was barred by the rider, and a contract with one significantly curtailed the owner's rights to control the property. Then Airbnb came along, and it quickly became relatively easy for the aspiring investor to get significant short-term rental income while maintaining control of the property. Since Airbnb doesn't really have to do anything other than act as a marketing platform and handle payments, they aren't going to insist on a great deal of control. If you only want to rent the place out for a few weeks in the shoulder months, that's okay. If you decide after the first rental that allowing strangers on your property isn't for you, that's okay. Listing your second home on Airbnb didn't violate any explicit prohibitions. But banks weren't stupid, and realized that the opportunity afforded by the short-term rental platforms greatly increased the number of people who were interested in "second homes". The upshot was that when it becomes hard to tell who is relying on rental income and who isn't, everyone pays the higher rates, and the advantage of a second home classification disappears.
If the prosecution's interpretation wins the day, the Democrats can easily take this ball and run with it. The practice of buying Airbnbs for investment purposes and getting second home mortgages on them was widespread between 2019 and 2022, when banks raised second home rates to curtail the practice. Such fraud was much more apparent and easy to prove than whatever it is they're accusing James of, and it shouldn't be too hard for FHFA to cross-reference a list of second home mortgages with a list of Republican donors from swing states and swing districts. You can argue that James's suit against Trump was politically motivated, but at least she had the courtesy to pick something that only a guy like Trump would be guilty of. Trump just gave a future Democratic administration license to run roughshod over a not-insignificant percentage of the donor base. Claim it's politically motivated. Claim a huge scandal. Fine. James is doing the same thing and it's getting her nowhere; only vindication that she didn't violate any actual laws will get her off the hook. My reaction to such a series of events would be one of satisfaction. If Republicans want to pretend that this is actually a Serious Crime that needs to be prosecuted, then their own tribe can pay the price for their indiscretions. The Republicans can feel free to do the same once they get back in power, except the statute of limitations will be up by that point on the period where misclassification made sense. I guess you can't win them all.
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