09.09.09

INTRODUCTION: This is a short fluffy commentary on trends in the news which you might find entertaining or even thought provoking.

Signs of the Times on 09.09.09:

– September 9, 2009, with its unique numerology, was selected as the release date of the digitally remastered collection of the Beatles’ music for reasons too complicated to repeat here.

– Why was there a tempest in a teapot over the Presidential address to students, considering that we live in a media-rich world where it is impossible to protect anyone from any point of view? Don’t parents and school administrators know that you only make the message more interesting by banning it? Or do they?

– Later this month, TV news programs will give plenty of exposure to the opinions of G-20 protesters. They do so only because the news media is constantly searching for something different from yesterday’s report.

– The G-20 security perimeter around the convention center made the top of the front page of both papers. This recognizes the importance of traffic alerts in the Pittsburgh hierarchy of news value. Did you notice that 28,000 National Guardsmen (Guardspeople?) will be on hand, as PLBT had suggested some weeks ago? That should impede traffic, too.

– The Roethlisberger civil lawsuit is being conducted primarily in the media and only incidentally in the court dockets. We thought about covering the case in PLBT, but we don’t do sports or entertainment.

– The use of country and rock concerts to enhance sporting events has now become routine. PG headline: “McGraw, Black Eyed Peas kick off 2009 NFL season.”

– The Pirates finally set a much-predicted record for consecutive losing seasons. Yet the team is profitable and attendance is not too bad for a perennial loser. And how about that Jones kid? In this era of free agency, when it is possible to buy a championship in a hurry, our Pirates are committed to another path to the top. Good for them!

– The Gadgeteer reports that you can buy a personal sleep coach.

AND LAST BUT NOT LEAST, AN ECONOMIC-SOCIAL NOTE:

– Even the worst times do not reach everyone. The “Pet Menu” of a Chicago Hotel features a 10 oz. filet, available 24 hours by room service. Those lucky dogs! No champagne, though.

CLT

Category: Uncategorized

Mortgage Foreclosure: Beware of Mortgage Servicers’ Tricks and Dodges.

SUMMARY: Mortgage servicers are either fooling around without making workout deals, aggravating judges and stranding borrowers in foreclosure, or defaulting on their own workout plans. If this is happening to you, hire a lawyer who knows what to do about, pronto.

The New York Times reports that judges, particularly in Bankruptcy Court, are getting peeved with mortgage servicers, particularly mentioning Wells Fargo. Borrowers and their lawyers trying to arrange workouts are getting upset as well, with good reason. Here is a post on the subject that appeared on a listserve for real estate lawyers called “Dirt” that is pretty typical:

Out of work Borrower is in foreclosure. Borrower gets job and negotiates workout with servicer/lender (not sure who owns the loan but talking to HSBC). Foreclosure is cancelled and 60 days foreclosure hold is put on account.

In early July, HSBC sends email setting out terms of workout and requests “qualifying payment” within 30 days and then make August payment and modification paperwork will be sent.

Meanwhile, the collection arm of HSBC keeps calling and threatening to foreclose. Borrower tells them they have a workout and collection arm says “No, you don’t. and you are going to lose your home.” Borrower explains that apparently the left hand doesn’t know what the right hand is doing and asks them to get in contact with workout department.

Borrower wires qualifying payment and 2 weeks later HSBC returns the wire. When borrower calls regarding this return of the qualifying payment wire, supervisor in workout department tells them that “it hasn’t been changed in the computer yet (still showing in foreclosure), let’s start over and make qualifying payment and send me the Fed Wire No. Supervisor assures borrower that the wire will not be returned and that the computer shows 60 days hold on foreclosure. Borrower wires payment on August 4th, emails Fed Wire No and hears nothing further.

Borrower calls on August 31st to see if they are supposed to make Sept payment and is transferred to voice mail and leaves a message. No one returns their calls or email. Borrower goes ahead and wires payment on Sept 1.

On Sept 3rd, the qualifying payment from August 4th is returned with text on wire return “Rtn of your Fed wire ref (Fed wire no of Aug wire) dd8/04/09 Sender’s ref per BB K Req Per Default and Doreen Beza Res Holding Time. Most likely, whoever got the voice mail saw the wire and had it returned. (probably collection/default department).

As of today, the Sept 1st payment has not been returned.

Sounds like the work out and collection arms of HSBC are not communicating and the collection/default department returns the borrowers’ wire as soon as they see it.

This is Missouri property, so it is non-judical foreclosure state. Borrower is concerned that they collection/default department is going to start foreclosure as soon as the 60 days is up and of course, the fee is added to the loan balance.

Any suggestions or solutions? Does borrower need to file law suit to get HSBC to “change their computer” and finalize the modification and if so what causes of action do they have?

The short answer is that there is a breach of contract by the servicer. The servicer made a deal, then refused to honor it. In such a situation is absolutely imperative for the borrower to get the matter before a judge in a context where the court can grant relief to the borrower. How that happens will vary from state to state. However, the homeowner cannot do it alone. An experienced lawyer (experienced in this field of the law) is required. And yes, if you can afford to pay under a reasonable workout plan and have equity in the property, you can afford a lawyer. The alternative is to lose the house. Do it and don’t wait.

CLT

Category: Uncategorized

The Value of a Good Introduction.

SUMMARY: Summaries of fact and even argument should be added as a formal introduction to many written communications, including legal pleadings.

If you read the immediately previous post about the complaint filed by the tobacco industry against government advertising regulation, you may have noticed something curious. The complaint contained an introduction.

In six fairly succinct paragraphs, the plaintiff tobacco companies presented their argument in summary format. But it was more than a mere summary. It was a mini-brief of their case, one that was intended to persuade or at least enlighten the reader.

We lawyers are accustomed to placing summaries at the head of appellate briefs, but why not complaints?

I discussed the subject with an experience trial lawyer last night, who objected that summaries are not provided for in the Rules of Civil Procedure. Perhaps not, but what is the judge going to do about it? Strike it as impertinent? Most likely, he/she will simply read it. And most likely, this compact statement of the lawyer’s case will make an impression. When filing an Answer, insert your own introduction. But make it to the point, brief and persuasive.

In some situations, such as motions or at an arbitration hearing, where the pleading is being hurriedly read, it gives you an important opportunity to communicate your theory of the case — the big picture. Note how the plaintiff tobacconeers were able to work in case citations, something that is not usually considered proper in pleadings. After reading just six paragraphs, we had the gist of a very complex case. Then, as we read the rest of the document, we are not preoccupied with trying to figure out where the argument is going. The plaintiffs have already laid out the path they intend to take. The reader’s understanding is greatly improved and misunderstanding greatly reduced.

Moreover, in light of the recent requirement that pleadings contain more than the bare bones to withstand a motion to dismiss, a well-written summary may help.

I was so impressed with the skillful use of the introduction in the tobacco case, that I have decided to write summaries at the head of every appropriate communication, including blog posts. And so, this is the first.

CLT

Category: Uncategorized

First Amendment: Tobacco Industry Suit Claims Regulations on Advertising Go Too Far.

A case to watch was just filed in a U.S. District Court in Kentucky. Health and safety versus free speech is a recurring theme in Constitutional Law. However, it is too soon to say whether this challenge to legislative regulation of commercial speech will ultimately be a candidate for the Supreme Court docket. This may depend upon how roughly the District and Circuit treat the government regulations at issue on the way up. However, one would suppose that the industry’s lawyers must have seen something encouraging in the emerging First Amendment case law to encourage them to risk the challenge. See Jurist, September 1, 2009.

The introduction to the complaint in Commonwealth Brands, Inc. et al. v. United States of America, sets forth the industry’s First Amendment argument in concise form in an Introduction:

“[S]o long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001). On June 22, 2009, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (the “Act”), which does not outlaw tobacco products, but which imposes unprecedented restrictions on Plaintiffs’ First Amendment rights by limiting their ability to disseminate truthful information about tobacco products to adult consumers. Plaintiffs do not challenge portions of the Act that materially and directly address tobacco sales to minors.[Footnote omitted] However, Plaintiffs do challenge a number of restrictions that circumscribe their rights to communicate truthful information to adult consumers who have an interest in receiving such information. Prior to the passage of the Act, existing federal and state laws already severely restricted Plaintiffs’ ability to speak truthfully and freely to adult tobacco consumersâ€”the Act now adds layer upon layer of additional restrictions, thereby virtually eliminating the remaining few avenues for protected speech.
2. The Supreme Court has explained that limitations on commercial speech, at a minimum, must directly advance an asserted substantial government interest and must not be more extensive than necessary to serve the government’s interest. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980). The Government “bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so ‘to a material degree,'” and “‘speculation or conjecture’ . . . is an unacceptable means of demonstrating that a restriction on commercial speech directly advances the [Government]’s asserted interest.” 44 Liquormart, Inc. v. R.I., 517 U.S. 484, 505, 507 (1996) (plurality op.)(emphasis added) (citations omitted). The Act cannot pass muster under this standard.
3. While the Act is purportedly intended to reduce youth tobacco use, a number of its provisions broadly restrict all speech by Plaintiffs about tobacco products, including truthful speech intended for and received by adults. For example, the Act prohibits Plaintiffs from conveying any speech through the use of color lettering, trademarks, logos, or any other imagery in most advertisements, including virtually all point-of-sale and direct-mail advertisements. Another restriction renders completely ineffective the one place where such color imagery can be used: Plaintiffs’ packaging. The top half of the front and back of all cigarette packaging is appropriated by a Government-drafted anti-tobacco message, including shocking, color graphic images and other mandated information, leaving Plaintiffs with just a small portion of the bottom half of their cigarette packages to communicate with adult consumers. The obvious purpose of this is to force Plaintiffs to stigmatize their own products through their own packaging. Given that consumers in many retail establishments generally must view tobacco products from across a counter-top, the only thing adult consumers are likely to see is the Government-drafted message; the bottom half of the cigarette packaging, to which Plaintiffs’ branding is relegated, will be difficult, if not impossible, to see. Together, these restrictions leave Plaintiffs with virtually no means of effectively communicating with many adult tobacco consumers through advertisements, and the Act substantially impairs the value of their trademarked logos on packaging. These speech restrictions are particularly egregious as the population has, for decades, been well informed of the harms of tobacco use and the Government cannot demonstrate that the restrictions will further increase consumer awareness or reduce youth tobacco use.
4. The Act goes so far as to prohibit Plaintiffs from making truthful statements about their products in scientific, public policy, and political debatesâ€”speech that receives the highest level of protection and is subject to strict scrutiny review. For example, one key provision of the Act prohibits Plaintiffs from making truthful statements about the relative health risks of tobacco products to “individual tobacco users,” if the FDA determines that such truthful statements would not “benefit the health of the population as a whole.” Pub. L. No. 111-31, sec. 101(b), §911(g)(1), 123 Stat. at 1784, 1814 (amending the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., to insert 21 U.S.C. § 387k(g)(1)). This restriction, moreover,is not limited to advertising, promotion, and other traditional forms of commercial speech, but rather, applies to “any action directed to consumers through the media or otherwise.” Id., sec.101(b), § 911(b)(2)(A)(iii), 123 Stat. at 1812-13 (amending the FDCA to insert §387k(b)(2)(A)(iii)) (emphases added). Plaintiffs would be barred from disseminating this truthful information if, in the FDA’s view, it would not “benefit the health of the population as a whole” because it may offer current tobacco users a level of reassurance that might encourage them to consume less harmful tobacco products rather than to quit altogether. Pub. L. No. 111-31, sec. 101(b), § 911(g)(1), 123 Stat. at 1784, 1814 (amending the FDCA to insert 21 U.S.C. §387k(g)(1)). Yet the law provides absolutely no criteria by which such judgments shall be made, and thus relegates Plaintiffs’ truthful, non-misleading speech to vagaries of subjective, standardless assessments by Government officials.
5. These are but a few of the Act’s many flaws and they do not pass muster under either intermediate or strict scrutiny review. Congress, having repeatedly chosen not to ban tobacco products altogether, cannot now prohibit Plaintiffs from truthfully speaking about their lawful products to adult consumers. See, e.g., Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 192-93 (1999). As the Supreme Court has emphasized, “regardless of the strength of the Government’s interest in protecting children, [t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Reno v. ACLU, 521 U.S. 844, 875 (1997) (internal quotation marks and citation omitted).
6. In short, while each of these provisions individually violates the Constitution, collectively, the Act’s provisions cut off nearly every currently-available avenue of tobacco advertising and marketing. In so doing, they run afoul of Plaintiffs’ rights to free speech and due process, and effectuate an unconstitutional taking of private property, in violation of the First and Fifth Amendments by, among other things, chilling Plaintiffs’ right to participate in scientific and political debates surrounding their products, unduly restricting Plaintiffs’ right to engage in commercial speech, and confiscating Plaintiffs’ packaging, advertising, and intellectual property for an anti-tobacco message drafted by the Government. Plaintiffs therefore respectfully request that this Court declare the challenged provisions of the Act in violation of the First and/or Fifth Amendments to the United States Constitution and enjoin the Government from enforcing these unconstitutional provisions.

Here is the entire Complaint.

CLT

Category: Uncategorized

Buried in Debt, but Not For Eternity.

There are at least two ways of determining value of property. The first is to measure the value of a thing by its utility. The other is by what other people will pay for it.

Under the first measure, the value of similar grave sites in the same cemetery is more or less the same. You may swap one for another, since they are all equally suitable for their purpose, burial.

On the other hand, some people (the kind with extra money) may wish to pay a substantial premium for a particular grave site. Here’s why.

Quite practical, that widow who moved the decedent across the cemetery, selling the burial plot next to MM to pay off the household mortgage. The old man would have been proud of her business skill. But, as the Canadian website points out, some jurisdictions wouldn’t permit this lucrative transaction because they recognize rights in the person entombed there. This adds a third category of value, one conferred by vested legal right.

Of course, it is sometimes possible to be buried in a unique and much coveted site simply for the asking. Pennsylvania Supreme Court Justice Michael A. Musmanno is buried in Arlington National Cemetery quite close to John F. Kennedy, Robert F. Kennedy and now Edward M. Kennedy. He wrote a codicil to his will requesting that he be buried at Arlington as close to JFK as possible. Musmanno was qualified for burial in Arlington by virtue of his military service. When Musmanno died on Columbus Day in 1968, his executor asked Congressman Jim Fulton, a member of the Veterans’ Affairs Committee, to arrange it. And so he did.

CLT

Category: Uncategorized

Looking For Errors and Finding Them: One Judge’s Experience With Mortgage Foreclosure.

The New York Times ran an article today that should be instructive to people who wonder why there is so much controversy over mortgage foreclosures.

Judge Arthur M. Schack frequently dismisses mortgage foreclosure petitions on his own motion because the pleadings are just not right. Every one of the defects mentioned in the article appear with regularity in mortgage foreclosure pleadings, which are basically forms containing bare-bones numbers that beg for inquiry. Read the article.

CLT

Category: Uncategorized

Here’s a Happy Thought.

W. C. Fields may have said, “Everyone needs to believe in something and I believe I’ll have a drink,” but he didn’t say:

“I’d rather have a bottle in front of me than a frontal lobotomy.”
Tom Waits, quoted in Creem Magazine, March 1978, did.

Thanks to the Yale Book of Quotations as featured in the Freakonomics Blog.

But was it Mark Twain who complained that Shakespeare was overrated because it was full of cliches, or does it simply sound like something he’d say?

CLT

Category: Uncategorized

Pittsburgh Legal Newslog: Mylan, Inc. sues PG in WV Over Articles Alleging Quality Control Guidelines Were Overidden by Employees.

The West Virginia Business Litigation Blog is carrying the story of a lawsuit filed in Monongalia County, WV titled Mylan Pharmaceuticals, Inc v. PG Publishing Co., Civil Action No. 09-C-592 (August 19, 2009). The Post Gazette had reported that workers were overriding QC rules in the manufacturing of pharmaceuticals. This report caused Mylan’s stock price to suffer a severe jolt. Mylan alleged in the suit the PG’s allegations were untrue and were based upon documents “misappropriated” by the newspaper. Various other theories are expounded in the Complaint, which can be accessed by a link in the story.

You can look for updates by clicking on the West Virginia Business Litigation Blog in our blogroll.

CLT

Category: Uncategorized

Are Bank of America and J P Morgan Chase, et. al. Accounting to Anyone for How They Spend Billions Appropriated to Save Homeowners from Foreclosure?

Here’s an interesting story, courtesy of DSNews.com, a daily email newsletter about the business of servicing defaulted mortgages.

About twenty one of the top twenty five participants in the Home Affordable Mortgage Program were big-time subprime lenders who were the originators of about one trillion bucks worth of high interest loans that nearly caused the economies of the word to . . . well, you know. A few of them have been forced to settle large suits involving chicanery committed during the subprime heyday or were closed or merged by regulators in its aftermath. Now the feds are giving this gang $50 Billion or so to fix what they broke.

So, B of A gets $6.9 Billion of “incentives” to modify mortgages with J. P. Morgan Chase and Wells Fargo not far behind. Fascinating, but is anyone verifying on an adequate scale that these lending giants are doing what they say they are doing? That means a large number of qualified individuals must begin reviewing files — millions of files. That also means asking questions and getting answers from people who may have something to hide.

I am willing to bet a month of lunches that there is no plan for adequate oversight of this activity. How could there be? What army of auditors has been mustered to do it? Don’t say federal bank examiners can do it in their spare time. They don’t have any. Not on this monumental scale.

When Billions are thrown around without controls in place, it is only a matter of time before the “F” word will start to circulate. It is inevitable. You’ll hear it in Congressional investigations, on the news and all over the country. So, why wait — we’ll say it out loud right now.

Fraud!

CLT

Category: Uncategorized

O. Max Gardner III on Teddy Kennedy and Overcoming Our Greatest Mistakes in Life.

A friend and colleague, who would probably not want to be identified by name, sent me a comment made by O. Max Gardner III, a nationally known bankruptcy lawyer from North Carolina with deep family roots in the Democratic Party. Gardner knew the Kennedy brothers for over 50 years, including while working in the JFK White House.

Gardner says that Ted Kennedy was, unlike his two brothers, a natural compromiser and deal maker. This, he believes, was the secret to his remarkable output of important legislation. Here are a portion of his remarks on Ted Kennedy’s fall and redemption:

“Forty summers ago, on a warm night, the car he was driving on Martha’s Vineyard skidded off the bridge into 8 feet of water at Chappaquiddick. The passenger, Mary Jo Kopechne, who had worked in Bobby’s presidential campaign, drowned in the car. Kennedy later called his decision to swim to safety and abandon the scene “indefensible”. He could have used the same term to characterize his own description of the incident. It was a tragedy for the Kopechne family and should have ended Teddy’s career and certainly doomed any realistic hope he ever had to become President.
But, in my view the true measure of Ted Kennedy is that he found redemption from Chappaquiddick in his work in the Senate. He survived a tragedy of his own making that would have unmade any other politician. He understood how the Senate is supposed to work and he made it work. He made his deals and compromised positions and passed some of the most progressive legislation of the past 30 years.
We have all made our share of mistakes in this life. The longer we live the more we make. The true test of a man or woman is what they do with themselves after the mistakes. What do they do after they have been knocked down? How do they get up and what do they do when they are back on their feet? Ted Kennedy, with a gilded name in politics and the weight of one family tragedy after another, was able to overcome it all, to turn the boat around, and to run it hard with the wind in his face for the last 30 years. In this life, all of us are broken down more than once. A few of us are able to turn these breaks into positive events. Many more of us never get over them at all. Teddy Kennedy was one of those rare individuals who was able to overcome a litany of rotten fate, bad luck, bad judgment, and errors of character to remold himself into one of our greatest United States Senators.”

CLT

Category: Uncategorized

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

Pittsburgh Legal Back Talk

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09.09.09

Mortgage Foreclosure: Beware of Mortgage Servicers’ Tricks and Dodges.

The Value of a Good Introduction.

First Amendment: Tobacco Industry Suit Claims Regulations on Advertising Go Too Far.

Buried in Debt, but Not For Eternity.

Looking For Errors and Finding Them: One Judge’s Experience With Mortgage Foreclosure.

Here’s a Happy Thought.

Pittsburgh Legal Newslog: Mylan, Inc. sues PG in WV Over Articles Alleging Quality Control Guidelines Were Overidden by Employees.

Are Bank of America and J P Morgan Chase, et. al. Accounting to Anyone for How They Spend Billions Appropriated to Save Homeowners from Foreclosure?

O. Max Gardner III on Teddy Kennedy and Overcoming Our Greatest Mistakes in Life.

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