A Lender Who Fails To Provide Free Parking Must Advance Token To Boardwalk?

When you were a kid, what were the rules for "Free Parking" on Monopoly? We always had all fines and taxes and payments put into the middle of the board, and if you landed on "Free Parking" you got the collected money.

I bring that up because sometimes free parking can really hurt your game plan; I'd have my brother on the financial ropes, hotels all over Ventnor and such, and he'd hit "Free Parking" and the game would go on for hours.

In other venues, like the courts, parking can hurt you, too. Like, say, in keeping you from foreclosing after your buyer doesn't pay. Just ask Ashwaubenon Boardwalk, LLC, who found that out the hard way in Ashwaubenon Boardwalk, LLC v. Rosenthal, three (consolidated) foreclosure cases recently decided by the Court of Appeals.

Back in 2005, Rosenthal bought a marina from Boardwalk (both I and the Court of Appeals refer to the plaintiff as "Boardwalk." I'm doing it not just because it fits in with my Monopoly them, but because it's hard to type Ashwaubenon.)(I bet the Court used "Boardwalk" for that latter reason, too.) The total cost was $1,000,000. Rosenthal put $300,000 down and had two installments to make on the loan.

Part of the contract required Boardwalk to put in improvements, including repairs to the boat slips, and a transfer of land for additional parking. Rosenthal was to pay an additional $156,000 for that.

With one installment left, and still owing the $156,000, Rosenthal stopped paying, and Boardwalk declared a default. Rosenthal then sued Boardwalk for misrepresentation and breach of contract, and Boardwalk countered by filing two separate foreclosure actions in two different counties. All three cases were consolidated.

A jury found for Rosenthal on breach of contract, rejecting the misrepresentation claims, and awarded him $185,000. The judge hearing the foreclosures -- foreclosures don't get jury trials -- held that the failure to provide parking was an "act of bad faith" that together with the breach of contract allowed Rosenthal to refuse to pay. Denying foreclosure, the court reformed the contract to hold that Rosenthal was required to pay only after Boardwalk provided the parking and paid Rosenthal's damages.

Boardwalk then appealed, but did a bad job of it. One argument apparently intended to claim that the judge had exceeded his powers. The Court of Appeals said of this point that Boardwalk

contends the court had no authority to instead reform the contract to condition Rosenthal’s payments on Boardwalk rectifying its breach and act of bad faith. We reject Boardwalk’s argument, however, because Boardwalk fails to provide any legal authority for what a circuit court may do in a foreclosure proceeding. Boardwalk contends that “foreclosure is a statutory right,” but nowhere identifies what statute provides that right or explains how that statute applies to this case. We decline Boardwalk’s implicit invitation to ferret out statutory, or any other, authority to support its argument.

Boardwalk then argued some points about Rosenthal's tort claim; since the jury rejected that claim, the Court of Appeals held Boardwalk's appeal moot.

Boardwalk finally argued that it should offset the damages against its own judgment -- again without providing legal authority to require that -- but the Court of Appeals noted that Boardwalk hadn't gotten a judgment, so there was no offset to be had.

This all makes me glad I'm not on Facebook.

I don't have a Facebook account; I was kicked off for making too many friend requests. Facebook wants you to be social, but not too social, as I found out. I haven't missed it, though, because while Facebook gets upset if you try to make friends with people to promote your blogs and writing, they don't care if you create a fake profile to help violate federal law in the course of debt collection.

They don't say that, of course. Officially, the Facebook rules say you can't use the profile information you find on their site for commercial purposes, but unofficially, Facebook has allowed debt collectors to violate the FDCPA by contacting relatives and engaging in deceptive practices to collect debts.

It's not necessarily a new problem; the first report I found was from May, 2009, when an Elk Grove woman who claims a debt collector duped her into thinking he was a college student when he friended her; her attorney filed suit. It's not made clear from the article what the harm was or how the woman found out, and I couldn't find any other information on that case, but then, just a few days ago, I heard about "Jeff Happenstance," a guy who is alleged to be a made-up profile used by debt collectors on Facebook. According to that article, Jeff Happenstance contacted the debtor's mother and cousin via Facebook, apparently asking them information about her that caused them to worry and get in touch with her.

The article doesn't say that "Jeff Happenstance" communicated details about the debt to the relatives, but the debtor's lawyer says that just contacting the family members was wrong because the company knew how to get in touch with her. And, of course, debt collectors can't engage in debt collection communications that are deceptive or that fail to meaningfully disclose their identity.

Another company, "CBV Collections" is alleged to use a "cute girl" to friend debtors to help skip trace them. (The alleged cute girl is the picture on this post.) I'm not sure what to make of that claim -- it doesn't ring entirely true for me, and reports around the net about "Jenny Anderson" appear to be all linking back to the one initial story, and I couldn't find any confirmation.

It's not just Facebook, either. Two debt collectors are alleged to have used MySpace (who still has a MySpace account?) to harass debtors. One woman sued, claiming that the collector had posted information on MySpace about how much she owed, leading her to sue. Another man's daughter was allegedly contacted via MySpace to ask the daughter to discuss turning over the dad's car. That led both dad and daughter to sue (although the company says it was going to countersue.)

And, perhaps worst of all, one debt collection company allegedly created an entire web page about a debtor -- buying a domain in her name and posting it on the web with content from their site but headlined "[Debtor's name] isn't paying for her Cavalier."

The bottom line: never go anywhere on the Internet except to one of my blogs.

HAMP Helps the Unemployed Save Their Houses And Avoid Foreclosure.

The federal government expanded, effective August 1, the benefits of the HAMP program. Now, borrowers who are unemployed can qualify for a forbearance period during the time they're unemployed.

Mandatory on all HAMP servicers, the Unemployment Program offers minimum forbearance periods of 3 months and prohibits initiating foreclosure proceedings (or completing them) while the application is pending or during the forbearance period.

The monthly mortgage payments, during the forbearance period, must be reduced to no more than 31% of their gross income, but can be less.

Click here to go to the HAMP site and learn more about the program.

I was right about HAMP and 3rd party contracts-- and a federal court just said so.

In Wisconsin, I was, to my knowledge, the first lawyer to file a pleading arguing that the federal government's HAMP program conferred 3rd-party beneficiary status on borrowers, giving them the right to sue if their lender or servicer didn't comply with HAMP.

Although I've plead that several times so far, only one case made it far enough to get a Wisconsin circuit court ruling, and that circuit court said no way -- denying the claim and saying HAMP doesn't confer third-party beneficiary status on borrowers.

Now, along comes the Southern District of California federal court, which recently-- August 12, 2010-- ruled that HAMP does indeed confer third party beneficiary status.

Considering a suit brought by a borrower, the judge in Marques v. Wells Fargo, 09 CV 1985 (S.D. CAL) ruled that when it comes to the contract between the servicers and the government which governs HAMP:

it is difficult to discern any substantial purpose other than to provide loan modification servicers to eligible borrowers...The Agreement on its face expresses a clear intent to directly benefit eligible borrowers.

The Court then held that

Under the unambiguous terms of the Agreement, [the homeowner] at the very least had a right to have his loan considered for modification.

This is the first case I'm aware of that held this -- but it goes to show a couple of things. First, homeowners need to be more aggressive in pursuing their rights under HAMP, and, second, I'm always right.

Of safety glasses, Elvis Costello, and jellybeans (oh, and Cyclopses and aliens, too, for good measure.)

You only get one set of eyes in this world-- and Cyclopses don't even get that. But, then, aliens get more than their share of eyes, so it all evens out in the end, I guess.

Anyway, what I was saying was that you only get one set of eyes in this life, so you'd better have one set of safety goggles, too -- because your eyesight is to precious to risk to a flying chip of wood or rebounded nail or dirt and dust whipped up by trucks or acid or whatever it is that's flying at your eyes.

(I'm not actually sure what risks there are for eyes in the real world, as the riskiest thing that happens to my eyes is occasionally I toss a jellybean in the air to catch it in my mouth and miss -- SCARY!)(But I don't miss often, so I'm not TOO worried.)

And to get your safety goggles, you should check out Magid. They sell pretty much every kind of safety goggle, and yeah, there ARE different kinds: Splash resistant and direct vent and indirect vent and softer pairs and larger pairs and even a pair that looks like the kind of safety goggles Elvis Costello would wear if he were to stop being a musician and start being a chainsaw sculptor, which he just might; he's a pretty weird guy.

Lawyers create more work for themselves in a new foreclosure case.

If you don't appear in an action in the time allowed by law, nobody has to tell you what's going on later on in the case. That's the message of Wells Fargo v. Biba, a brand-spanking-new case from the Court of Appeals that reaffirms what lawyers already know -- and rejects creative arguments to avoid the application of that old rule -- thereby engendering more expense for Wells Fargo, which learned the hard way that sometimes it's cheaper to just play fair.

James Biba and Lisa Clason were sued for foreclosure in the case, and never filed an answer. Because they were in default, Wells Fargo got a judgment of foreclosure and sold the house. Then, because James and Lisa were in default, Wells Fargo wrote the Court and asked the Court to sign an order confirming the sale. Wells Fargo didn't file a motion and didn't notify James and Lisa.

Three weeks after the confirmation of the sale by the Court, James and Lisa filed a motion seeking to vacate the order.

The circuit court and the Court of Appeals promptly, and correctly, decided that James and Lisa were out of luck -- Wells Fargo wasn't required to give them notice of the confirmation at all, because they hadn't appeared in the action.

That ruling itself wouldn't prompt comment at all -- but the reason that ruling was made deserves some attention, since the whole argument appears to have been needlessly caused and pointlessly made.

The argument was needlessly caused in the first place for two reasons. If James and Lisa had really wanted to save their home -- more on that in a bit -- they should have filed an answer; then they would have appeared and been entitled to defend the action and get notices and require a motion hearing. Even if they didn't want to defend, they simply could have put in a notice of appearance and nothing else -- a one page piece of paper -- that would then have entitled them to get notices the remainder of the way.

But from the other perspective, Wells Fargo picked a fight it didn't need to pick. It wrote the Court, but didn't copy in James and Lisa, and why? To save a buck-fifty on postage? Notice of a confirmation hearing can be sent registered mail, which has got to be less than ten dollars. While it wasn't required that Wells Fargo give notice to James and Lisa, why not give them notice anyway? The only reason I can think of for not giving them notice is to avoid having them come and object at the confirmation hearing. If James and Lisa had gotten notice and had shown up, the Court might have spent a half-hour on the case (assuming it let them object at all) but confirmation hearings are generally easy to win and require little evidence to prove fair value. So to save on that possible half-hour (and ten bucks for postage), Wells Fargo didn't send them a letter at all.

(And, I might add, while not legally required, sending the letter anyway would be a nice, fair, thing to do. You're taking away someone's house. Can't you just send them a letter anyway?)

The fight after the fact was pointlessly made, though -- or so it seems to me -- because not only are confirmation hearings very easy for the lender to win, but if you do vacate the order confirming sale, then you don't get your house back, you get a chance to have a new sheriff's sale. CCAP records don't show that James and Lisa filed a motion to vacate the actual judgment of foreclosure (although they could have done so), so the best they would get from a new sale is a little additional time to live in the house, or the chance to redeem (since redemption rights continue until confirmation.)

So neither side had much of a reason to fight this one, and both could have avoided the attorney's fees and costs that go along with an appeal. Had either party done the most minimal thing that they were required to do-- file a notice of appearance or simply mail a letter to the other side -- the case likely may have never gone to an appeal and all that trouble.

A new Publisher's Clearing House settlement won't directly benefit you, but will provide employment for a rich lawyer. (So, that's good, right?)

Hot on the heels of his worthless-default-judgment against a defunct mortgage company, Wisconsin AG J.B. "Van" Hollen continues to prove that he's looking out for consumers in the most minimal way possible, this time by tagging onto a 32-state lawsuit that made it even more illegal for Publisher's Clearing House to do what they've been doing since the last time they got sued.

Longtime observers, and people who don't understand you can buy magazines directly from the publisher, may recall that current Governor Jim Doyle once announced that he'd solved the PCH problem and did so by carrying (if I recall correctly) a large check to something or other. (Maybe I imagined that last part, though.) Doyle at least got some customer refunds, and an agreement that PCH wouldn't use illegal tactics.

Now, our current AG has gone after PCH again, this time with 32 states teaming up with him, and recently announced that PCH has AGAIN agreed it won't keep misleading people: the states alleged that PCH wasn't following the old agreements, and so to make sure that PCH obeyed the old deal, the states entered into a new deal where PCH promised this time to REALLY do what they'd promised to do twice before.

That's not ALL, though. The 32 states, led by 32 lawyers who may someday need a job, also got PCH to agree that it will hire a lawyer of national prominence to monitor how PCH is doing in complying with the new deal, and requires that PCH send out surveys to see if consumers understand that they're not very likely to get a giant check just because they ordered 15 years' worth of Boys' Life.

So, no refunds, PCH stays in business in Wisconsin, but a national lawyer gets a cushy job. Feel better, consumers?

I'm betting the PCH surveys include a notation at the bottom that by filling them out, the person may already be a winner.

Just bookmark this page under the tab "Important Work Stuff That I Do All Day Thereby Justifying A Massive Raise." Your boss'll never figure that out.

So what do YOU do all day at work? The odds are you spend about 3 hours when you first get in surfing the internet and drinking coffee, but by 11 or so, you've run out of things to waste time with and have to actually do some work.

(No, I'm NOT going off my own calendar. I get in at 8:30 most days, so there.)

Once you've read every blog, webcomic, and Twitter feed you can, don't despairingly go working on that spreadsheet (whatever that is.) Instead, check out the Free Online Movies you can get at Free Movie Page.

Free Movie Page helps you Watch Free Movies by showing you where to find the hottest, newest, bestest movies that you can get online. You can use them to See Movies Online at any of the pages listed... saving you from the drudgery of doing whatever it is your boss hired you to do in the first place.

Too many cooks spoil the brew, but too many would-be parents make for interesting procedural rulings.

Many of the thorniest legal problems arise in family law situations when too many people want to care for a child. Earlier, I looked at the Wendy M case and examined what happens when two women want to be considered parents at the same time -- but the law says they can't. That legal muddle is eclipsed by the Interest of A.E.H. case, in which an aunt, uncle, and father vied in courts in two states for custody of a child -- getting competing rulings that granted, for a period of time, both families rights to the child.

The best possible solution for that dilemma would be, of course, to use a procedural doctrine to settle things, right? Let's see how that worked out:

The child, AEH, was born in 1983. Mom and Dad weren't married and never lived together after AEH was born, and AEH lived with Mom for about a year before Mom went on active duty, then lived with the maternal grandparents for a year during that tour of duty. By 1985, AEH was back with Mom in California, living with her until Mom was murdered in early 1986. California juvenile authorities thought the dad was unknown, so a California court gave physical custody of AEH to the Aunt and Uncle, who moved back to Wisconsin.

Three weeks after arriving in Wisconsin, Aunt and Uncle petitioned for guardianship of AEH -- and got it from the Rock County Circuit Court. Two weeks after that, Dad surfaced and filed his own action for custody, in California.

When something like that happens, the "Uniform Child Custody Jurisdiction Act" takes over and is supposed to provide a set of simple rules that help two competing states decide which state should handle the custody matters. The problem with the UCCJA is that while it has simple rules, it has no procedures in place for handling situations where the two states continue to disagree, and that's what happened here. Wisconsin, through Rock County's circuit court, found that it was the "home state" for AEH -- an important designation, because "home states" get to make custody determinations.

But California found that it was the home state. Both state courts went on to issue orders about how much power they had to deal with this (Rock County actually ordered the California action stayed.) In Rock County, the Aunt and Uncle then filed to terminate Dad's parental rights, but a jury found no grounds to do so -- which didn't dismay Aunt and Uncle, who promptly filed an action for custody of AEH, in Rock County.

In California, meanwhile, Dad won his custody action -- and the Court of Appeals in California affirmed the court's ruling that California was the home state. Dad then filed a motion to dismiss the Rock County custody action (his third, by my count, the two previous ones having been denied.)

Aunt and Uncle then claimed collateral estoppel -- asserting that Dad's motion had to be barred, notwithstanding California's ruling, because Dad had already litigated this issue (twice) and lost (twice.)

Ordinarily, collateral estoppel might win the day, what with courts looking for ways to resolve disputes short of hearings on the merits. But here, the Rock County Circuit Court (maybe seeing a win-win, because either way this case would be over) agreed with Dad that there was no subject matter jurisdiction over the action and dismissed the Rock County custody action.

Aunt and Uncle then appealed, arguing their case again. The Court of Appeals first held that TPR and guardianship proceedings were "custody" cases under the UCCJA. Then, the Court held that a basic exception to collateral estoppel -- call it the plain error exception, because it has to do with when the jurisdictional error is so plain that ruling was a manifest abuse of authority -- applied, so that Dad wasn't collaterally estopped from moving to dismiss the custody action.

Then, the Court of Appeals held that there had never been jurisdiction here because the UCCJA prohibited Wisconsin courts from taking jurisdiction over this custody action, as this was never AEH's home state, so Dad's motion to dismiss was properly granted.

I wonder, though, how much trouble, though, might have been avoided if the California people had bothered to find Dad in the first place? Then again, if the job had been done right the first time, we all wouldn't know about the plain error exception to rulings applying collateral estoppel to later challenges to subject matter jurisdiction. And I think we're better off for that.

My understanding of economics may need a little tweaking.

Here's a thought, employers. If you want to move your business ahead, get your employees to quit stealing office supplies.

Sure, yeah, I know: America's economy right now is based on free office supplies -- if people couldn't take home yellow highlighters and sticky notes, we'd never have our grocery lists organized properly and society would fall apart.

But the preservation of our entire way of life is no reason to let your people keep ripping off the boss, not when there's sites like AnyPromo.com.

AnyPromo.com sells promotional items to you at great prices. They've got promotional products like daily planners (the one shown here) balloons, pens, highway travel packs... pretty much anything that exists can be turned into a promotional product advertising your company.

So how does getting high-quality office supplies with your company's name and logo on it keep your people from stealing the stuff? I'm glad you asked that, ma'am. Here's how: you can afford to get some for your employees, too: The prices are really super low, and so you can not only get promotional products for your business to give away to your customers, but you can also get them for your crew. So your guys can be carrying around stuff with your logo on it, not just when they're on the job, but when they're out in society. Constant advertising for you, less pilferage for them.

Another Day, Another Another Fraudulent Mortgage Scheme... and a worthless judgment entered.

It's not just the people originating loans that commit mortgage fraud -- it's the people who send you those junky, fake solicitations for help that can be guilty of deception, too. The other day, Wisconsin's Attorney General (remembering that part of his job is to enforce consumer laws, too) got a default judgment ("De-fault! The two sweetest words in the English language!", as Homer Simpson said) against the Federal Loan Modification Center, LLP. Reports LoanSafe.org:

According to the State’s complaint, FLM marketed purported loan modification and foreclosure rescue services to distressed homeowners in Wisconsin under the guise that it was part of a federal program, despite having no affiliation with the federal government. It informed homeowners that attorneys would work on their behalf, demanded up-front fees and even had the audacity to advise some homeowners to stop talking to their lenders and to stop making their mortgage payments in order to “expedite” the modification process. FLM collected as much as $3500 in up-front fees from Wisconsin homeowners then failed to provide the services promised or refunds.

The default judgment is for a little more than $105,000. It's not clear when the money will be paid, or if it will be paid, or what would happen to the money once paid. Googling the name of the company finds, in the top results, mostly legal actions against the firm, including a report from the same site noting that not only had the FTC earlier won a $10 million dollar judgment against the company, making Van Hollen's default an even-more-hollow victory, but also, the earlier report says, the judgment the FTC got was suspended because the company can't pay.

Another day, another fraudulent mortgage scheme.

A tax preparer pleaded guilty to setting up 51 fraudulent mortgages in 2006 and 2007 the other day. Gail L. Mendez, of "Mendez Connections" admitted to involvement in a scheme whereby she prepared fake tax returns based on information from a Park Bank loan officer, who told her and her partners-in-crime what income a borrower needed to have to qualify for a loan from Park Bank. Fake tax returns using EINs instead of social security numbers were then prepared.

It's not apparent to me from the stories about this whether the borrowers were aware of the fake tax returns. What is apparent to me is that there are 51 loans out there with borrowers who likely couldn't have afforded those loans based on their real income. What will happen to them? Wisconsin law allows for equitable defenses to foreclosure -- judges can stop foreclosures that aren't fair -- and Chapter 224 regulates mortgage brokers and allows for claims for damages for aggrieved litigants. But is anyone telling those borrowers they may have remedies? Or are they struggling to pay too-high mortgages and facing foreclosures on their properties?

Circuit court records show that Park Bank has filed 43 foreclosure actions in Dane County alone in 2009 and 2010; how many of those were loans originated by these defendants? Is anyone looking into that?

I think they should set these videos in the Texas "Can-Handle." (Yep, I still got it.)

I think pretty much everybody in the world maybe has heard about WD-40 - -and probably, like me, everyone has a can of it somewhere. Maybe, like me, you got a can of WD-40 because your DAD had a can of WD-40, and he used it when you were a kid, so when you bought your own house, you got yourself some basics to go with it, like a stepladder, a rake, and a can of WD-40.

I didn't think, then, that anyone needed to know about all the things you could use WD-40 for -- I mean, I use it around the house all the time, most recently to keep the springs on Sweetie's exercise trampoline from squeaking too much. But it turns out that even after a lifetime of having this stuff around, I don't know everything about it -- as shown by the WD-40 videos that are up to watch.

Labeled "Can Hands", this series of WD-40 videos is a funny, creative look at the various uses that WD-40 has:



Grandpa vs. the Garden Gnome -- a battle I never imagined could exist, and a battle I never knew could be helped by WD-40. And those videos are just part of the fun and information that's available through "The Official WD-40 Fan Club," a website that unlike most websites for products today isn't just a hacky site designed to up traffic. There's those fun videos, and there's tips, and actual information, making it a site worth going to not just for people who have WD-40 or think they might need it, but people looking for a little fun,too.

Well, THAT didn't take long. God Bless America! (And God Bless the lawyers, 'cause we're going to need it.) (Saturday Fun.)

Just about two weeks ago, I noted that Facebook was the victim of what (by my informal count) was the 13,000,000,000th scam foisted off on Facebook users -- the Dislike Button.

The "Dislike Button" scam arose in the wake of Facebook's controversial "Like" button, which users would (so far as I understand it) click on to show they liked something... only to then feel as though their privacy was violated when Facebook told people that the user liked something.

The "Like" Button came out in the spring of 2010. The "Dislike" button came about in the summer - -because scammers operate fast. But you know who moves almost as fast as a con artist? Lawyers.

Lawyers, leading society into the brave new world of tomorrow by filing lawsuits over the Like button. A class action suit has been filed claiming that the Like button is hurting the children. Says the suit:

Facebook encourages the participation of children on its social networking website, stressing the authenticity of the experience of communicating with friends. It then markets the names and likenesses of those children for us by advertisers, representing to advertisers that the use of the name and/or likeness of the child as an endorsement of the advertiser’s product can increase marketing returns by 400% compared to advertising that does not include an endorsement from the name or likeness of a child.

Facebook doesn't just hurt kids that way -- no, sir. They're the Internet equivalent of the Thuggee cult from that second Indiana Jones movie, judging by what the plaintiff's lawyer says:

When a teenager sees that their Facebook friends ‘Like’ an ad, it piques their curiosity, making them more likely to click the ad or visit the page...We believe it is a clear case of exploitation of children for the sake of profits.

Taking advantage of peer pressure violates consumer laws? I suppose I can see that. Which is why I should be at my office, right now, preparing a lawsuit against every clothing manufacturer, music producer and movie studio right now.

The lawsuit isn't the first one Facebook has faced; back in February, Facebook agreed to settle another privacy suit for $9.5 million.

I've been critical of class actions many times on this blog, and the facts provide me more opportunity to criticize... but I won't. I'll just provide the facts and let you draw your own conclusions.

Fact: Facebook settled a privacy suit in February 2010 for $9.5 million.

Fact: No consumer had a right to any of that $9.5 million.

Fact: Lawyers were entitled, as a result of that settlement, to ask for as much as $3 million in fees.

Fact: Six months later, a new class action was filed against Facebook.