The world continues to not be black-and-white. Imagine that.

As I've pointed out on prior occasions, very few pieces of legislation, or news, can be described as "good" or "bad" objectively. So this piece of news about loans many people think are predatory isn't good or bad for consumers; it's just news.

And the news is that H&R Block may or may not be able to offer "rapid refund' taxpayer refund anticipation loans -- a move brought on by re-regulation of HSBC. Says WTOL.com:

Millions of H&R block customers will no longer be able to get short-term loans backed by their tax refunds. The program is know as Rapid Refunds. The tax preparer's banking partner, HSBC Bank, has been forced by federal regulators to stop offering the high-interest loans.

Some news stories say that H&R Block can't offer the loans at all; H&R Block disputed that, in an AP story:

Block said it will continue to offer customers refund anticipation checks, which are funded through H&R Block Bank, along with direct deposit accounts through its Emerald Card program. Block also provides other programs to its tax preparation clients, such as its Emerald Advance revolving line of credit. Lines of credit have been used by more than 4 million customers, the company said. But during a conference call last month the company said they would not be used to replace RALs.

H&R Block itself is spinning this as a denial of credit, which is about right. Others, like the Illinois AG's office, point out that refund loans carry a high price tag and says that many low-income customers can take advantage of free tax-preparation services -- but access to those services may be limited. In Wisconsin, you can get free taxpayer assistance through the "Volunteer Income Tax Assistance" (VITA) program. But there were only seven places in the entire state to get that help in 2008, with two in Madison alone. (And one of those Madison sites was open only 5 hours.)

By contrast, H&R Block had 15 offices within shouting distance of my ZIP code alone. While it'll cost more, it's more accessible, as well -- so people who use the refund anticipation loans service from tax preparers not only get their money faster (at a higher price) but they get access to professional tax preparers who will file their returns online for them. That's not necessarily a bad thing, making it not necessarily a good thing that the loans are not available.

What was it Dickens said about what kinds of laws would say such a thing?

I made a comment the other day to a insurance defense lawyer at a hearing that to a plaintiff's lawyer, there's always someone to blame for things going wrong.

Apparently, that rule applies to parents, as well, judging by the threatened lawsuit from a Mom who has trouble saying no to her kids:

A California woman is suing McDonald's claiming the fast-food giant uses toys to market directly to young children. Monet Parham, a Sacramento, California, mother of two small children filed the lawsuit Wednesday in San Francisco along with health, nutrition and food safety advocates Center for Science in the Public Interest . CSPI is seeking court approval to proceed as a class action.

So toys are marketed directly to kids? And that's now the basis for a lawsuit? I guess so -- the harm being that the mom in this case must be a parent:

Parham, a 41-year old state employee, says her kids repeatedly ask for Happy Meals, mainly for the toys. "We have to say no to our kids so many times and McDonald's makes that so much harder to do. I object to the fact that McDonald's is getting into my kids' heads without my permission and actually changing what my kids want to eat."

Here's the official word from the hopeful-class-actionistas backing this:

Michael Jacobson, CSPI's executive director accused McDonald's of "one of the most insidious marketing practices–dangling a toy in front of a small child." Jacobson called the practice "unfair, deceptive and illegal' in California and many other states. "The food industry has a responsibility not to intrude into families by using sleazy marketing techniques getting kids to pester their parents."

The gist of the claim, as I understand it, is that by making toys kids want, and food kids want to eat, McDonald's has created class-action liability for itself. What am I missing, here?

Other than how the rules of ethical responsibility can let that lawsuit be filed in the first place, I mean. I don't know what California's consumer protection laws say, but I doubt very much that they protect consumers by making it illegal for consumers to get what they want.

Also, to keep this blog's PG rating, I'm only going to link to the Dickens quote referred to in the headline.

Finally, robots do something besides threaten humanity's future and/or rock 'em and sock 'em.

Ever get a text message that got you so angry/interested that you remembered it for a full five-plus years?

If so, you might just get $200.

I came across an advertisement in Entertainment Weekly this past weekend (and why wouldn't a consumer lawyer spend his time reading Entertainment Weekly, I ask you?) with this intriguing headline:

If you received a text message advertising the DVD release of the motion picture ROBOTS in September or October, 2005, please read this notice carefully as you may be entitled to a $200 payment from a class action settlement.

The notice goes on to say that there's a class action suit that claims a violation of the Telephone Consumer Protection Act and has been settled for $16 million -- of which the lead plaintiff gets $15,000, everyone else gets $200 or less, and the lawyers get $3.75 million in costs and fees.

I'm ordinarily opposed to class action suits on the grounds that they don't benefit the actual people who are harmed, and serve primarily to transfer legal fees from defendants to plaintiff's attorneys -- and also on grounds that most defendants, I expect, would rather face one lawsuit with one set of lawyers than try to defend hundreds or thousands of smaller lawsuits with hundreds or thousands of local counsel -- but in this case, I'm all for this suit, because, hey, two hundred bucks for getting a text message? That'll offset the fine I'll pay for replying to it while driving.

If you've been stewing for the past five years about that unwanted Robots solicitation, click here for more information on the $200 that might be coming your way.

Generally speaking, you're not as clever as you think you're being.

I'm not really a businessman -- one of the reasons I stopped running my own firm and joined the firm I'm with now is that I didn't like the business side of practicing law. (Although, to be fair, the business side of being a sole practitioner was primarily hoping that my clients would pay me in time for me to go get new ink from Office Max so that I could print up the brief I needed to file.)

So it might be my lack of business background that makes me sometimes wonder why anyone bothers with LLCs or corporations or other business organizations anymore. (Beyond the ability to contribute an unlimited amount of money to independent political ads, that is.) I run across, in my practice, numerous cases where people have a corporation or LLC and yet are personally on the hook for debts of that business because either they've messed up the formalities of the business, or they've personally guaranteed the debts of the business -- in either case, making it largely irrelevant, for liability purposes, whether they had a corporation or had just been self-employed.

While I might question why a person would have one business organization, though, it often seems obvious to me why they might have two, or more -- and that obviousness became both apparent and legally actionable with the recent Court of Appeals decision in Crown Castle USA v. Orion Construction Group LLC.

The background of the case is simple: Crown Castle got a judgment against Orion Construction and got a supplemental examination order requiring Orion to disclose assets that Crown Castle might use to satisfy the judgment. Orion Construction provided some personal tax returns of its sole member/owner, and a note showing that Crown Castle owed Orion Construction $210,000.

(As an aside: I am grumpy this morning from shoveling snow for an hour before I came into work. So I'm assuming that Orion Construction included that spreadsheet showing the $210,000 owed it by Crown Castle as a snarky or smug move on the part of Orion, a move Orion likely thought was clever. But since Crown Castle had gotten a default judgment against Orion -- for $496,000-- it was not only likely but almost certain that Orion was owed nothing, absolutely nothing by Crown Castle, because issue preclusion rules would have barred Orion from ever asserting that claim against Crown Castle. So it wasn't a clever move. It was the exact opposite of clever: By including that note, Orion simply showed a complete ignorance of legal procedures and substantive rules of law. If I were on the receiving end of that note, I'd realize that my opponent didn't really have a very good understanding of the law at all, and I'd feel pretty comfortable that I was going to win.)

Okay, I'm back. Crown Castle didn't believe that Orion had made no money and had no assets, and, becoming aware that Orion's owner/member, Douglas Larson, owned another company called "Orion Logistics," sought to look at the records of that company. A court commissioner ordered that exam, and Orion Logistics appealed.

The Court of Appeals found for Crown Castle -- noting that nobody had ever examined this question before, so that it was an issue of statutory interpretation

Interestingly, the Court framed the question narrowly as:

Whether [the supplemental exam] statutes permit the court commissioner and circuit court to order a third-party company under common ownership with the judgment debtor to produce its books and disclose its finances...

But in answering that narrow question, the Court broadened the scope. Relying on an earlier case that had held, rather narrowly, that a judgment creditor could examine a spouse about marital assets "where... the judgment debtor pleads ignorance," the Court of Appeals held that the purpose of the supplemental statute allows the examination sought here:

Property not wholly exempt from execution may be subject to a fraudulent transfer action.... Property transfers between a judgment debtor and related business entities present the same risk of fraud as those between spouses.

But then, the Court finished up that paragraph with a broader-seeming rule:

Examination of the alleged third-party recipient may be the only method available to a judgment creditor to ascertain whether a fraudulent transfer has occurred.

Which is interesting because it appears to expand the rights a judgment creditor has beyond the question at hand -- the Court's ruling clearly allows examination of related entities when it's possible there's a fraudulent transfer involved, but that last sentence leaves open the possibility that a supplemental examination could be had even for unrelated entities -- suppose, for example, that Orion Construction had transferred property not to Orion Logistics but to an unrelated party -- ABC Logistics -- to prevent Crown Castle from getting that property. That transfer might be fraudulent, and "[e]xamination of [ABC Logistics] may be the only mehtod available" to determine whether it was fraudulent.

The Court then finished up with two more paragraphs seemingly designed to ensure that Crown Castle, which has been recommended for publication, be read as broadly as possible: It cited an 1885 Supreme Court of Wisconsin case holding that supplemental examinations are to be "comprehensive and searching," and then finished up by noting again that the scope of a supplemental examination is very much a discretionary decision -- the type of decision that's very hard to overturn.

The Crown Castle decision came out on December 7, 2010 -- but for Larson and his companies, even the delay of an appeal seemed not to have worked, as Crown Castle sued him and his companies in a separate civil action currently set for trial on May 31, 2011. So in the end, Larson's plethora of companies didn't help him avoid the supplemental examination, and didn't avoid him being named personally in a lawsuit brought by a judgment creditor.

Other stuff to do, plus the song of the week.

What I'm reading, what I'm writing, and the Song Of The Week, down below:

Cam Newton Awarded Temporary Custody of Heisman Trophy (Nonsportsmanlike Conduct!)


Dead birds on a pole and a wraith made of blood: It's the Fifth Best Christmas Song (That Has Nothing To Do With Christmas) (The Best Of Everything)

I support providing free and low cost lawyers to people, and it could easily be done. (Pagel For Judge)

Hamlet mentioned Christmas? Boy, Shakespeare really was great. (Thinking The Lions)


Hey, it's that free-lawyers-for-people thing again. Plus some articles on debt collection. (Family and Consumer Law: The Blog.)

Saoirse's life didn't really begin until after she died. Now, she's got to find The Tree before William Howard Taft gets everyone sent back... somewhere? It's the web novel the After, only on 5 Pages.

He rescued her from drowning, and now his dreams of her are sending him back to the ocean. Read I Am In Love With This Cruel Ocean, a uniquely haunting story, on AfterDark - your home for scary stories!

Your Song Of The Week:

For Judge Vote Pagel by brianefp
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The State Bar may ask the Wisconsin Supreme Court to appoint counsel in civil cases-- but lawyers could already do that.

In Gideon v. Wainwright, the US Supreme Court first established that criminal defendants were entitled to a lawyer -- and that the State must provide a lawyer if the defendant couldn't afford one.

Now, Legal Action of Wisconsin, through the Right To Counsel Task Force, has filed a petition with the Supreme Court of Wisconsin to ask that civil litigants in extreme circumstances be appointed counsel. The Task Force includes prominent lawyers and judges and filed, on September 30, the petition signed by 1,320 people.

The proposal apparently would apply to people who meet certain characteristics and are extremely poor -- below 200% of the federal poverty guidelines. (That would be a single person making less than $22,000 a year in 2009, or a family of four making less than $45,000.) It's expected that it would cost about $58 million per year in its current form.*

My question is: Why wait for the Supreme Court to order this? There are about 23,000 lawyers in the State Bar of Wisconsin. That's about $2500 more per year per lawyer in membership dues to fund this program right now -- so just by charging lawyers $200 per month we could fund a program that would appoint lawyers to represent people at a reduced (but guaranteed) rate.

The State Bar could easily set up a two-tier program -- a cap-and-trade for lawyers, if you will. Lawyers could either commit to doing X number of hours of appointed counsel work -- at the going rate -- or could pay their way out of it. So lawyers not willing to work for the indigent would pay higher dues, to support lawyers who would. And then almost everyone would have a lawyer -- reducing courtroom congestion and making sure that victims of abuse get injunctions, that people don't lose their homes, that nobody wrongly garnishes them, and more.

For more information, and to support this project, click here. The Bar is apparently going to refer this to the Wisconsin Access to Justice Board for review, and they can be contacted here.

*The original post said $8 million; that was based on a typo. The actual proposed cost is $58 million. The numbers have been adjusted accordingly.

Need A Tarp? I've got you covered. (Get it? Do you? It's a pretty subtle pun.)

It snowed last night -- and still a little this morning -- about four inches total. The snow didn't catch ME sleeping, though.

Well, okay, LITERALLY, it did catch me sleeping. It didn't start until probably 11 p.m. and I fall asleep early, so I was asleep when it snowed by METAPHORICALLY speaking I wasn't asleep because I'd already put canvas tarps over everything that needed to be protected outside: equipment, yard furniture, The Boy (who's not allowed in house except on holidays.) (What? He's messy.)

Most people never think about the need for a canvas tarp or two - -but when you need one, you need one, and that's when you'll realize that you don't have one. And that's when you'll have to go running around trying to throw your wife's comforter on the stuff you want to protect, and she's going to be all "What are you doing, that's my good bedspread!" and you'll be like "Look, I've got the boat and the gas grill out here and they're going to get wrecked in this snowstorm that for some reason also has hail and meteorites" and she'll say "If you don't get those bedsheets back in here I'm tossing out your entire collection of Sports Illustrateds going back to the 1981 issue when Robin Yount was on the cover," and you'll say "I didn't think you knew I'd stashed those in the garage," and she'll say "I didn't... until now..."

Trust me. Happens OVER AND OVER. At least at my house.

Anyway, my point is that you need canvas tarps for work projects, covering stuff, securing loads that you're hauling... and you need them NOW, not after the fact.

My Actual Case Results: Foreclosures, chain of title, and a litigant's right to depose witnesses.

In Columbia County case number 10 CV 746, the plaintiff, BAC Home Loans Servicing, filed a mortgage foreclosure, and I was retained to represent the defendants.

I noted that the purported assignment of mortgage was signed by an attorney representing the plaintiff, and filed a motion to dismiss and motion to disqualify that firm; I also informed the other side that I'd like to depose the lawyer who'd signed the assignment and asked them to waive personal service of the subpoena.

In response, the plaintiff filed a motion to quash the subpoena and argued that my request was frivolous; the issue was heard by Judge George in Columbia County yesterday, and the Court ruled in favor of allowing the deposition, holding that by signing the assignment of mortgage as a agent of MERS, the lawyer had placed himself into the chain of title.

The issue is important in this case, especially, because MERS' September 2010 assignment is supposed to be done as a nominee for a company called Millennia Mortgage -- but Millennia Mortgage seems to have gone out of business at the end of April, 2010. That raises the question of authority to assign the mortgage, period, since in California, dissolution of a corporation can be done involuntarily or voluntarily, but in either case requires the distribution of assets -- including loans held as accounts receivable, I assume -- and if the assets aren't distributed properly the transfer can be set aside or the asset is still owned by the dissolved, but legally-still-existing-for-that-purpose corporation.

So the motions to dismiss and disqualify haven't been decided (as of 12/3/10), but in Columbia County, at least, homeowners have been given the right to determine whether the lender suing them for foreclosure actually has the right to do that.