Another futile NFL suit; at least it gives us a football-related thing to talk about.

While the rest of the world pays no attention to Brady v. NFL (a good explanation of which is beyond the scope of this blog but which can be found here) and simply hopes that super-rich athletes can find a way to divide an incomprehensible amount of money up with their super-duper-rich bosses, reg'lar folks like us have to settle for run-of-the-mill hopeless lawsuits, like the one that was filed this week against the Cleveland Browns:

A Cleveland businessman is suing the National Football League and its teams, claiming his right to buy tickets through his personal seat license has been violated because of the lockout. Ken Lanci, a self-made millionaire, has asked the Cuyahoga County Common Pleas Court to overturn the lockout that is threatening the 2011 NFL season.

He is seeking $25,000 in breach of contract from the Cleveland Browns and the same amount from the league and its teams for contract interference.

(Source.) I don't know much about Ohio state law, so let's hear from someone who does:

"He has effectively no chance of winning," said Ohio State University contract law Professor Larry Garvin.

(Source.) Kind of like the Browns themselves, right? The plaintiff isn't asking just for damages -- $25,000 -- but also for an order ending the lockout, making this the first time, ever, that someone has demanded to watch the Browns play football.

Among the problems that Professor Garvin (and others) noted with this suit is that the fan bought the "permanent" license in 1997, so at best he's losing a fractional amount of the value, and also that the contract for purchasing the PSL includes a clause about what to do if there's labor disputes.

A more serious problem that went uncommented-on in the articles I read was this: he wants damages of $25,000 for not having to watch the Browns play? If you ask me, the NFL should countersue him for ingratitude. Now he can do something fun with his Sunday afternoons.

Why are credit card agreements so long and hard to read?

Short answer: Because of you.

Long answer: Project Money's story on this details the reasons, in as much detail as 4 minutes on the radio can give you. The story talks about why credit card agreements have to have language requiring that you pay your bill ("Roberta says that if she doesn't write "you have to pay us back," borrowers may try to get out of paying their bill") and why legalese can shorten up a contract (saying "herein" as opposed to "as set forth in this agreement"). Congressional requirements expand credit card agreements, and the need to include whitespace (because people won't read large blocks of text, as The Onion once pointed out) makes the agreement itself physically longer.

But the upshot of all of that is, if they weren't so long, you wouldn't pay them, or you'd hire people like me to sue the credit card companies for violating some legal requirement to include something that nobody read anyway.

It's the FIRST EVER Wisconsin Consumer Act case.

It wasn't always the case that the moment a law was passed, legal challenges flew like ticker tape at a parade; back in the 1970s, it could take years before an appellate court was able to rule on even a small portion of the law -- but there's always a legal challenge to a law, and thank God for that, or I'd need to get a real job that actually contributes to society.

Today, for your reminiscencing (probably not a word, but so what?) I've taken a look back to those golden days when it took four years for a consumer to complain that a bank had wrongfully taken back the car he couldn't pay for... and got to keep, free.

The case is Wachal v. Ketterhagen Motor Sales, Inc., 81 Wis.2d 605, 260 N.W.2d 770 (Wis. S. Ct. 1977), and it's a pretty simple case in which the parties agreed on almost everything involved: they agreed that Wachal had bought a used car on credit, that he'd failed to make payments as required, and that he'd received a notice of right to cure default and had not cured that default.

After that, there was a bit of a divergence about what happened when Wachal and the lender's officer got together in a parking lot to discuss the situation.

The defendant’s officer testified that he had simply said something needed to be done about the situation (the situation being that Wachal wasn't paying for the car), and that Wachal had asked for a day to get his things out of the car, after which he’d give it back.

Wachal, meanwhile, said that the defendant had threatened to take the car if he didn’t pay, and that in response to that Wachal had told him he could make a payment the next day, when he got his paycheck.

What happened next was that the next day came, and Wachal didn't make a payment on the car. The defendant's employee went to Wachal’s house with a spare set of keys and asked Wachal’s wife to consent to his taking the car. Wachal’s wife refused, and the officer used the spare set of keys to drive off in the car, with Wachal’s stuff still inside.

That exchange -- with the wife, and driving off -- turned out to be the clincher in the question the whole case revolved around, that question being Did Wachal surrender the car voluntarily? Because if he did, then his lawsuit must fail -- but the circuit court ruled in Wachal's favor, describing the taking as a “snatching” of the sort prohibited by the almost-just-enacted WCA, and not a voluntary surrender at all.

The circuit court apparently heavily relied on the fact that Wachal’s wife refused to surrender the car and that Wachal’s things were in the car as proof that Wachal's version was more accurate: if Wachal had really told the bank officer he'd turn the car over the next day, he'd apparently forgotten to tell his wife that and forgotten to then take his stuff out. Of course, it's also possible that Wachal said he'd turn the car over and then changed his mind, but the circuit court decided that wasn't the case, and found for Wachal, giving him the car, his money back, plus fees.

It's not clear how that ended up at the Wisconsin Supreme Court, since it was a factual issue that shouldn't have been appealed, at all, really -- but it did end up there, and the Wisconsin Supreme Court affirmed in what was almost a per curiam opinion.

So Wachal was the first WCA case ever to be appealed, and the first case of a consumer getting a car -- free -- because a creditor couldn't be bothered to do things the right way.

Sealed with a what now?

Slate Magazine had an interesting article on why we sign contracts to make them enforceable and noted that wasn't always the case:

Other, more casual agreements were also made in physical form. Cutting off a lock of hair and giving it to someone else was one way to seal a contract. Around the 13th century, agreements were sometimes marked with a slap, or some other traumatic act. The theory was that both parties would remember not only the injury but the accord that was reached on its infliction.

There would be far fewer settlements these days if that practice was still enforced... although maybe if litigants were allowed to slap the lawyers?

That comment also makes it seem that the Three Stooges might have been history's greatest lawyers:

Zenni's in the news, and here's why.

I'm all about value, especially when it comes to prescription eyeglasses. Eyeglasses, after all, are NOT the fashion accessory every one makes them out to be. If you need glasses, then you know: they're like crutches for your eyes, an absolute medical necessity, but a necessity that everyone ends up paying hundreds of dollars for.

Hundreds of dollars unless you go through Zenni. By now, you have probably heard of Zenni, which is getting more and more positive press because of the incredible values they provide, but in case you're STILL in the dark, let me update you: Zenni Optical gets you glasses for practically nothing.

That's why people are paying attention to Zenni, and why more and more news stories, like the one WZZM did recently, are picking up on the company: People can get glasses for about $11 a pair.

And the glasses are STYLISH, too -- so you get the medical necessity while still looking sharp.

I was reading the WZZM news story -- you can find it at this link:

http://www.wzzm13.com/news/specials/13onyourside/158403/216/Super-Saver---Buying-glasses-online?odyssey=mod|newswell|text|FRONTPAGE|p

About a woman who decided to try Zenni to get her glasses because she didn't want to pay $300 or more for a pair of glasses, so she went ahead and ordered through Zenni online, and paid $11.90 for her glasses. She even said that she didn't worry about getting a refund because it was so cheap, and that contrary to what people claimed, she didn't need a special fitting or anything like that. She just needed a couple of simple measurements and less than twelve bucks.

You can't buy glasses anywhere else that I know of for that low, and you can't buy the kind of publicity that Zenni gets from offering glasses at less than the cost of lunch.

Like horror stories?

You can read free, serialized horror stories on AFTERDARK -- stories like I Am In Love With This Cruel Ocean, up now: A young girl almost drowns one stormy night, forever linking her to the boy who thought he was saving her...

Other stories include cannibals trying to take over Hell, magicians who inadvertently bring about the end of the world, and more!

Click here to go to AfterDark.

Click here for more books by your favorite author (me!)

To live and die in the airport lounge

Saoirse's life didn't really begin until it ended...

...when she dies in a plane crash, Saoirse ends up in a new existence where everything is exactly what you want , unless what you want is to not be there. Unsatisfied with her new existence, Saoirse joins forces with William Howard Taft to find The Tree and get everyone, including herself, expelled from this new garden -- but will her husband's decision change her mind, too?

Click here to tead the web novel the After, serialized at "5 Pages."

And don't forget to check out these other great books from your favorite author. (Me.)

Interesting Judicial Comments

"Grammar needn't trump sense."

-- Chief Judge Posner, Seventh Circuit Court of Appeals, writing in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, and Clark, LLC, 214 F.3d 872, (7th Cir. 2000) about the appropriate time to construe what's a "debt" under the FDCPA.

Lawyers run amok... or were they? A case that examines how you can lose but not be frivolous. (Debt Collection Matters)

In the law, frequently, "creativity" is treated as synonymous with "frivolous," and "losing" is, similarly, treated as "frivolous," with the result being that litigation is frequently sidetracked into battles about whether one side or the other is going to have to pay one side or the other's attorney's fees.

I've been critical of this type of thinking before, and remain critical of it now; in fact, I've come to the conclusion that a lawyer who makes a claim that an opponent's action is frivolous ought to be reported to the Office of Lawyer Regulation, if the claimant doesn't subsequently get awarded fees; reporting someone to the OLR is a serious matter, but so is making unwarranted threats for the recovery of fees.

The distinction between losing and creativity, on the one hand, and frivolous actions, on the other, is shown in a rather remarkable case, Perry v. Stewart Title Co, 756 F.2d 1197 (5th Cir., 1985), with the opinion beginning like this:

The creative efforts of plaintiff Robert Perry, a lawyer, and the intransigence of ten defendants turned this relatively simple breach of contract/tort case involving the sale of a residence into a enormously expensive brouhaha for all of the parties.

Not a good sign.

The plaintiffs the Perrys bought a house from a construction company; the company had built the house, as it turns out, so that it encroached on a power easement by about a foot, something that didn't come to light before the closing. At that closing, a survey had been supposed to be provided, but wasn't, and people went ahead with the close anyway.

Shortly after the closing, the Perrys got a copy of the title insurance commitment, which excepted the one foot encroachment, and they objected to it. The title insurer then got a partial waiver of sorts, but that didn't make the Perrys happy. The title insurer then got the power company to agree to a full release of the easement, but said it would take 60 days.

This is America, though, so you know what happens next: The Perrys lawyered up, demanded a full release within that sixty days, and when they didn't get one, moved... and sued. The appellate court's description of that complaint is worth looking at, too:

On December 1, 1978, the Perrys filed suit in state court against Friendswood, Greiner, Hammond, Stewart, STG, Rod, and three other defendants. In that suit, the Perrys asserted nearly seventy claims against these nine defendants for the following: breach of contract, breach of warranty, statutory and common law fraud, negligence, deceptive trade practices, usury, loan disclosure violations, violations of state and federal truth in lending and debt collection acts, and violations of related federal and state acts.

That paragraph is not complete. Right after "related federal and state acts" this sentence appears to close out the paragraph:

On December 12, 1978, two weeks after the Perrys filed their suit, HL & P executed a complete release of all rights to that portion of the easement upon which the Perrys' garage and driveway encroached. The cost of securing this release was $100, and Stewart paid the fee.

Game over, right? You can't go on suing after you've won, right?

Weren't you listening when I said "this is America?" OF COURSE the problem wasn't solved by solving the problem. Instead, the whole case had to be tried to a jury, which found for the plaintiffs.

I, as a general rule, would not have tried this case to a jury, because I don't think a jury would be very sympathetic to the plaintiffs' claims. But that just goes to show what I know about Texas juries in the 1980s, because the jury sided with the plaintiffs on all claims that went before it, awarding over $100,000 including fees, and doing so even though there was little to no evidence that the power company was going to ever do anything about the easement and despite the fact that by then the Perrys didn't even live in the house.

The victory was short-lived: the remaining defendants (some had been dismissed out on a directed verdict) moved for judgment n.o.v, and got it -- and on appeal, that reversal of the jury verdict was mostly upheld, with the Court of Appeals basing most of its upholding on the fact that the Perrys' claims were largely based on their presumed right to rescind the contract.

The Perrys had moved out, after all, claiming that the contract for sale of the property let them rescind the contract if the title commitment wasn't satisfactory, and most (if not all) of their claimed damages related to moving and finding a new house... a house they wouldn't have had to buy if they'd simply waited for the release that arrived two months after they moved, and two weeks after they sued.

So the Court of Appeals looked first at whether the Perrys could move, and found that they had no right to rescind the contract, because the warranty deed merged with the contract for sale, and the warranty deed had no right to rescind for title evidence problems.

With that taken care of, the remainder of the decision was easy -- the Perrys lost on almost all counts, except for two.

First, they had their verdict for violating Texas consumer laws restored; the jury found that the mortgage servicer had made a harassing call to them, and the Court of Appeals held that even though the evidence was sketchy, it's a juries right to believe sketchy evidence and rule against the defendant, so the Perrys won that claim.

And, second, and the point of this post, the Perrys (and their lawyer) won on a claim that their FDCPA actions were not frivolous or in bad faith. The Perrys had sued (in part) the servicer and assignee of the loan for FDCPA violations, but the Fifth Circuit noted that neither was subject to the suit, both having come into their positions before the debt was in default.

So there was no right to sue under the FDCPA, period. The defendants weren't debt collectors under that law, and those defendants maintained that they were entitled to fees under a provision of the FDCPA that lets debt collectors get reimbursed for attorney's fees incurred on a bad faith claim. But the district court didn't award fees to anyone, and the Fifth Circuit said that was okay:

To recover attorney's fees under the FDCPA, the prevailing defendant must show affirmatively that the plaintiff brought the FDCPA claim in bad faith and for the purpose of harassment. 15 U.S.C. Sec. 1692k(a)(3). Although we do not approve of the Perrys' "everything but the kitchen sink" approach to litigation, we find that the district court did not abuse its discretion in holding that the Perrys were not in bad faith, so an award of attorney's fees against them was not justified.

In other words, even though they lost, and even though the evidence showed the defendants were not subject to the claim in the first place, it wasn't bad faith under the law.

That proves again the high standard that courts should -- but often don't -- employ in determining whether an action was in bad faith or frivolous, and proves again that lawyers should be more careful -- but often aren't-- in making such claims. And one reason why its appropriate to consider reporting lawyers who make, and then lose, such claims, is because litigants often have no other remedy: they must worry that in pursuing their claims, they will be liable to the other side, and simply making the threat can often serve as a wedge between a litigant and a lawyer -- while a litigant such as the Perrys, who prevailed on the fees issue, not once, but twice, does not get awarded fees (necessarily) for doing so -- so they incur extra costs fighting to avoid incurring extra costs.

And the Perrys weren't even a particularly sympathetic plaintiff; it would have been easy to say at no point, really, did you have much of a claim here -- but the courts (rightly) didn't do that.

In fact, the courts didn't even award fees where the contract allowed them to do so, and that was okay, too. The mortgage lender and servicer argued that they were entitled to fees based on the note and mortgage, but the courts rejected that claim, too:

With respect to FNMA's and Hammond's contractual basis for an award of attorney's fees, we conclude that while the district court's discretion was somewhat limited, since the deed of trust authorized an award of attorney's fees, the court exercised that discretion properly. ... The Perrys alleged substantial claims against FNMA and Hammond for violations of the Federal Fair Debt Collection Practices Act and the Texas Debt Collection Act. Although the Perrys did not prevail ultimately on the FDCPA claim, they raised sufficient questions of fact for the jury on the TDCA claim. Against this factual background, we cannot say that the district court abused its discretion in concluding that an award of attorney's fees in favor of FNMA and Hammond and against the Perrys would be inequitable and unreasonable.

Didja see that? The contract allowed for fees, the lender and servicer won on all but one claim (and that one was pretty minor, a one-phone-call violation of Texas law), and still the lender and servicer didn't get fees under the contract.

This case should be required reading for all litigants and judges. Maybe lawyers could take some time out from improperly threatening litigants with violations-that-aren't and use that few minutes to read it.

Time to share a story... yep, it's another pun.

The other day, I had to call a law clerk who was applying for a job with our firm, to interview him over the phone -- he's in southern California, the lucky dog -- and I was supposed to call him promptly at 10:30.

I called him, but I'm not sure it was "promptly" at 10:30: the clock on my phone said "10:40," while my computer clock said "10:31," and the Buffalo Bills clock on my wall said it was 10:34, while my watch told me it was 10:45.

Is it any wonder I'm never on time for anything? I don't know how I can live in a world that has four different time zones in my office alone.

So I started thinking maybe I ought to get a new watch, one that'll keep accurate time, and I think I've picked it out, too: the Invicta subaqua watch from Blue Dial.



That one, specifically -- there's about 10 or more of Invicata subaqua watches, and they all manage to be sporty and nice looking at the same time.

I need a watch like that -- a watch that I can wear to the office and court and around town, but which will still hold up when I wear it to go grocery shopping and end up chasing Mr F down the snack aisle while he's holding a torn-open bag of Cheese Puffs; I usually have to tackle him, because even at 4 he's pretty fast and tough.

(You didn't know what lawyers go through in their off-hours, did you?) So I've got to have a watch that'll hold up to milk spills and still say to aspiring law clerks, "This is the man you want to learn to practice law from. Just ignore the spaghetti sauce on his tie, and look at this fancy watch, instead."

The spaghetti sauce is why I do interviews by phone.

Blogger must pay $60,000 to fired community leader who sued him.

NO, it's not me. I don't make anywhere near that kind of money. The blogger in question goes by the name "Johnny Northside" (that's him at the right) and he was sued by an ex-community leader who claimed he was fired because Johnny Northside's blog linked him to a mortgage fraud scandal:

Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.

The jury awarded Moore $35,000 for lost wages and $25,000 for emotional distress. The civil verdict culminated a nearly two-year legal scuffle between John Hoff, whose blog, The Adventures of Johnny Northside, has 300 to 500 readers daily, and Moore, former director of the Jordan Area Community Council.

Moore was fired by the University of Minnesota in June 2009, the day after Hoff's post.

(Source.) The suit apparently was premised on five statements on the blog; the judge threw out four of the claims, but the fifth one went to a jury:

Moore, after being fired by the Jordan Area Community Council in January 2009, was hired at the U of M's Urban Research and Outreach/Engagement Center to study mortgage foreclosures. When Hoff found out, he wrote a post accusing Moore of being involved in a "high-profile fraudulent mortgage," one of several that resulted in a 16-year prison sentence for former real estate agent Larry Maxwell. Moore was not charged in the Maxwell case.

Hoff said he told the truth and had documentation.

.... the jury agreed with Clark's claim that Hoff had committed "tortious interference" by meddling with Moore's employment. Clark pointed out to the jury that Hoff, in a later blog post, took partial credit for Moore's firing.

(Same source.)

I'm not sure what the Minnesota law provides; in Wisconsin, as a general rule, transmitting truthful information can't constitute improper interference with a contract, but I've defended tortious interference claims raising truth as a defense and was forced to go to trial, so it's not unusual in my mind that the case went to a jury. Whether the verdict stands is another question.

You can find Johnny Northside's blog here. He appears undaunted by the verdict.

Man pays more than a million in legal fees, objects to paying $220,000 in child support.

One thing I'll never understand is when people fight over money that is, essentially, irrelevant. Take Tiger Woods' divorce. Tiger paid lawyers to fight to avoid releasing more than about 1/6 of his income to his now ex-wife Elin, and regardless of what he paid the lawyers, it was too much, because Tiger could have simply consented to giving Elin one-half and not been any worse off.

This serves as more than just an excuse to put Elin's picture in this post; it also serves as a stepping off point for today's child support case.

If Tiger was worth $600 million at the time of the divorce, and he'd just simply given Elin 1/2, then he'd be left with $300 million. Tiger finalized the settlement in October, 2010, so if he'd paid Elin 1/2 and then, starting in October, 2010, had invested his $300 million in money market accounts and other safe investments earning 5% interest per year, he'd earn $41,095 in interest per day -- or $14,999,999 per year in interest alone, even if he never played golf or did another endorsement again.

Which means that if Tiger were to invest his one-half after his hypothetical settlement, he could then spend $41,000 per day, or $1,708 per hour, every day for the rest of his life and at the end of his life, he'd have more money than he had on the day he settled with Elin.

So whatever Tiger paid his lawyers, he paid them too much, because whatever he paid Elin, he was left with more money than any person should have and/or could spend in a lifetime, even if he never worked again.

I bring that up because in family law, people frequently pay lawyers to fight when they'd be better off paying their spouse or their children money -- but paying lawyers seems less objectionable, many times, to paying an ex, and so lawyers continue to have jobs and get paid, diverting money from ex-spouses and current spouses and children and other more productive, happy efforts.

That's the main lesson I got from Lyman v. Lyman, a decision handed down on January 19 of this year upholding a circuit court's order requiring child support payments from a lawsuit settlement.

The Lymans originally divorced in 1994 after being married seven years. Scot Lyman had a good living then, but got a better living in 2002, when he was hired by St. Jude Medical, S.C., as a sales rep with a guaranteed commission minimum of $725,000 per year for the first four years of his contract. (And yet again I'm in the wrong business.) Sally, Scot's ex, moved to increase support and the court commissioner initially awarded $10,275 per month, but the circuit court reduced that to $6,250 per month.

Scot then got fired by St. Jude, and sued them -- and during the Scot-and-St. Jude lawsuit, child support was twice modified, once based on his firing and once based on the oldest of their two children graduating.

In 2008, the St. Jude suit settled, and Scot got $3,490,000. The Court of Appeals notes that Scot spent $1,180,000 in attorney's fees on that lawsuit.

Back in family court, Scot and Sally stipulated to shared placement of their youngest son, who was almost 18, and then fought over what to do with the $3,490,000 that was really only $2,310,000 after payment of attorney's fees used to generate it.

Scot said it wasn't income, and that if it was income the Court should order support be put into trust for the sons. The circuit court disagreed and found that all $3,490,000 was income for child support purposes; the court then deducted the fees Scot paid to generate the settlement --thereby doing Scot a huge favor that is not given to many dads-- and ordered, using a previously-stipulated order, that Scot pay $220,000 to Sally.

Scot appealed -- paying lawyers to avoid paying Sally -- and lost, largely because the Court of Appeals held that Scot hadn't met his burden of proof. Correctly noting that all income is presumed child support income, the Court found that Scot hadn't proven that any portion of the settlement wasn't gross income, noted that Scot had declared all of the settlement as income on his tax returns, and denied the appeal.

(The Court also noted that the circuit court wasn't bound by the 2005 order that Scot wanted to use to set his support obligation, given that child support is always modifiable and that there had been two other stipulations intervening between that order and the new one -- one stipulation using Scot's preferred "high income payor" formula, a formula he now wanted to abandon.)

The Court of Appeals also upheld the circuit court's decision not to deduct the taxes Scot paid on the settlement, which was proper: child support is calculated based on gross, not net, income, but didn't comment on (and Sally didn't appear to argue) the circuit court's decision to let Scot deduct his employment-suit fees from the gross award, a curious omission that deserves some explanation.

While money used to generate income can be deducted from gross income in the case of self-employed child support payors, nothing in the opinion suggests that the circuit court treated Scot's lawsuit as self-employment or deducted those expenses because of that. And beyond that exception, there's nothing I'm aware of that would let a court allow a child support payor to deduct legal fees from gross income; other payors who have traditional W2 incomes may incur legal fees, too, in a variety of contexts that may be job-related, but because child support is gross-income, not net-income, based, other payors are not allowed to deduct those legal fees.

Assuming the circuit court treated Scot's lawsuit as a form of self-employment, it might be appropriate to deduct those legal fees, but, again, that's not mentioned or discussed as a rationale for allowing the deduction, and that deduction was a $120,000 benefit to Scot, a deduction that Sally didn't appear to challenge on appeal.

Scot also lost on his argument that the $220,000 be put in trust for his sons, an argument that almost always loses but which continues to be made by parents who would rather see money go to lawyers than to their ex-spouses; trusts can only be imposed when the primary custodian either consents to it, or when the primary custodian is "incapable or unwilling to manage the child support money," as the Court of Appeals noted. The fact that this was retroactive child support didn't change that rule, and Scot has to fork over the money to Sally.

Unless, of course, he appeals to the Wisconsin Supreme Court. No, just kidding: he only had 30 days to do that, and court records show he didn't, so it really is over... which is too bad, for the lawyers.

Electronic cigarettes might be better than the real thing.

I quit smoking six years ago -- 17 years too late, really, but better late than never -- so I have no use for electronic cigarettes, but if you're a smoker who's trying to quit, or cut down, or who's worried about getting a horrible disease as a result of smoking, you SHOULD be considering alternatives to smoking.

There's nothing good about smoking. Even if it didn't kill you -- and it does, make no bones about it, tobacco kills you -- it colors your teeth and fingers and makes you stink and leaves cigarette butts all over and can kill your kids and wives and husbands from second-hand smoke too.

But smoking, even with all those drawbacks, is hard to quit. Believe me, I know: it took me over a year and a half and it's easy to backslide.

Electronic cigarettes-- or e-cigarettes-- can help reduce smoking and the harmful effects of smoking by getting you nicotine without tar and tobacco. They work by heating up liquid nicotine so that you can inhale and get the physical feel of a cigarette, and the nicotine, without as many harmful side effects.

Electronic cigarettes, then, can be a boon to people who don't want to expose kids to smoke, or stink up their house or office, and especially to people who don't want lung cancer, emphysema, and other fatal effects of smoking.

To find out more information, including what might be the best electronic cigarette for you, you can click the links in this post. I'm not suggesting that you smoke, or that you smoke electronic cigarettes; just the opposite: I'm saying that if you DO smoke, you should quit, but if you can't quit (yet) then electronic cigarettes might be a better choice for you. So go check out the information and see for yourself.

Take my debt collector... please! (Debt Collection)

I probably shouldn't reveal where I found the latest case that I'm going to talk about, the case that answers a question we've all wondered from time to time, that question being "Can debt collectors subtly threaten to kidnap or kill your child to get you to pay for your car?"

But I will tell you. It found it on Cracked.com, which has a very interesting, funny, and mostly correct article called "5 Disturbing New Ways Debt Collectors Are Getting Your Money."

The first new way the article relates debt collectors have found to get money is what Cracked calls "Social Network Shaming," something I already knew about way back in September. ("This all makes me glad I'm not on Facebook.")

Cracked does a pretty admirable job explaining how debt collectors use "social network shaming" to get paid, without explaining what might go drastically wrong (for debt collectors) in using that technique, which is okay because Cracked isn't there to provide legal advice, and they don't try to do so. I'm here to provide legal advice -- although the many serious disclaimers on this blog can now be joined by:

this post isn't intended as legal advice." I only provide legal advice to people who are my clients, and you'll know you're my client because you'll have signed a written agreement saying so; if you haven't signed such an agreement, then this isn't legal advice; it's just for fun.

Like Cracked. Only with a law degree.

Anyway, Cracked mentions, in social network shaming, a case captioned, innocuously, Sohns v. Bramacint, LLC, but which should be called, Encylopedia-Brown-esquely, "The Case Of The Overbearing Investigator," or some similarly interesting case title. How much more fun would law be if we as lawyers called cases things like that? Then, maybe clients (and judges) would listen, because instead of saying "Your honor, in Sohns v. Bramacint..." we could say "Your honor, in the case of the overbearing investigator..."

Well, it would be fun to me.

In Sohns, Tosha Sohns sued Bramacint LLC and "Jane Doe" for FDCPA violations and related claims for what Cracked calls "social network shaming" but which seems far worse than simply posting "call me" on someone's Facebook page.

Sohns had bought a car in 2006, and fell behind on the payments in 2008. Bramacint was hired by Chrysler to collect the debt -- companies having not yet figured out that the FDCPA doesn't apply to people collecting their own debt, and so being willing to risk derivative and indirect liability in some cases for what rogue collectors do -- and Bramacint began calling Sohns and her husband.

Bramacint didn't just call, though: they spoofed, a term that I wasn't familiar with until I read this case because while I like funny case names, I don't like Internet or hacker jargon. "Spoofing" turns out to be "using a special service to make it look like the call is coming from one number when actually it's coming from another." What Bramacint did was call a special line which then let it enter the number it was calling, and then enter the number that should show up on the Caller ID -- so that Sohns would look at her caller ID and not realize that it was Bramacint that was calling.

That's bad enough -- but it gets worse. The number Bramacint had appear on Sohns' caller ID was Sohns' mother-in-law.

(Debt collectors are apparently under the impression that people will take calls from their mothers-in-law. Have they never heard a 1950s comedian?)

Once Bramacint's people got through to Sohns, they claimed to be "investigators," which is sort of true, if you give a broad enough definition to "investigator," but refused (according to Sohns) to reveal the name of the company the investigator worked for -- and, according to Sohns, too, said that they'd get an arrest warrant for Sohns if she didn't turn over the car.

In fairness, Bramacint's people denied both those latter allegations. But what Bramacint didn't deny is that the "investigator" made a reference to Sohns' daughter. Detailing what the "investigator" said to her, Sohns testified:

She then stated that she googled me and I said good for you. I'm glad that you googled me. What did you find out?

She said that she went to my web site and saw that I had a daughter, a beautiful daughter. And I then said what do my kids have anything to do with this conversation about my Sebring?

She then said wouldn't it be terrible if something happened to your kids because you were getting hauled off by the sheriff's department.

Bramacint's "investigator" didn't cop to all of that -- but agreed she made a reference to Sohns' daughter. The "investigator" didn't have a good reason why she'd brought the daughter up:

Well, I mean, she did have a beautiful daughter... And I did tell her that she had a beautiful daughter. And I was trying not to be threatening, but, you know, intimidating to her that I knew or tha tI had found her and I would find the car.

Isn't that reassuring? She wasn't trying to threaten but merely to intimidate.

The District Court -- this is in Minnesota -- reviewed FDCPA case law and noted that Caller ID disclosures must meet with the requirements of the FDCPA, and that the "meaningful disclosure" of identity required by the FDCPA is met by accurately reflecting the name, number or alias of the debt collector -- and not by having the debtor return a call. The Sohns court noted that it was more egregious to not only hide your identity, but pretend to be a relative, and found the fake-name and "adversarial" nature of the conversation to be violations of the FDCPA.

The parties later appeared to come to a resolution of the case, dismissing it on its merits according to the Court's docket entries, so it's unclear what compensation Sohns got (if any).

So if you're taking anything away from this case, here are some lessons we've learned today:

1. When I appear to be spending my time in the office watching old episodes of The Simpsons or otherwise just surfing the Internet, that's really valuable research.

2. You now have a reason to never ever take a call from your mother-in-law again.

I was going to franchise this great idea I had for "Everlasting Gobstoppers," but it turns out this guy Willy Wonka stole my idea.

These days, even though people seem to think the economy is recovering, it's a good idea to have a backup plan, some extra income for retirement, or even a second job -- who knows, maybe the Republicans won't steal it all and give it to the Koch Brothers before our latest "experiment in democracy" wears off and Tea Partiers go back to remembering fondly the days when Plessy v. Ferguson was the law of the land.

If you're looking for just such a second income opportunity, consider one of the vending franchises available through Franchise Clique, a directory of franchising opportunities for you to get involved in.

Now, starting any business, like any investment, should be done only after carefully considering all alternatives and talking it over with the important people in your life (not to mention professional advisors like accountants, lawyers, and the Better Business Bureau), but a franchise opportunity -- running candy vending franchises, or back massage/massage chair franchises, or more -- can be a unique (and potentially profitable, if you do it right) way to earn a little extra cash, or maybe even switch careers if you do it successfully enough.

DVD rental kiosks, ice cream treat trucks... it looks like they have a lot of different vending opportunities to check out. So, like I said, think it over carefully, invest wisely, and, if you think it's a good idea (and your WIFE thinks it's a good idea), maybe you could have some extra income or a new job.


Candy Vending franchises such as Allstate Investment Group Vending to back massing chair franchises such as the Back Rubber Vending Massage Chair franchise. Get started today

"Oh, well, that's all right then." (Mortgage Issues.)

Sometimes I feel as though I fell asleep and woke up in an alternate reality. Did the entire Earth slip through a wormhole in November 2010, I wonder? I hope so, because I'd hate to think that we just elected a bunch of dumb sycophantic people who are bound and determined to send us right back to the time when the entire economy was being siphoned into the pockets of investment bankers... and I'd hate to think even more that the people we put in power in 2008 because of that were simply going along with them, now.

My fears rise from the fact that GOP politicians -- taking time off from passing laws allowing people to legally rape 13-year-olds -- have reversed course and are no longer calling for investigations, or regulations, of mortgage lenders who managed to profit immensely off the bad loans they made, and who now want the taxpayers to keep on footing the bill.

Speaking from the fifth circle of Hell... oh, wait, he hasn't arrived there, yet... "Senator" Richard Shelby said that efforts to regulate the mortgage industry were a "shakedown." What is it, exactly that he's opposed to? Proposed regulations on how mortgages are serviced, and a financial penalty. And he's serious, if hypothetical:

Just last year, I warned that the new Bureau of Consumer Financial Protection would prove to be an unaccountable and unbridled bureaucracy. I did not expect to be proven correct so quickly," Shelby said. "Under the guise of helping homeowners hurt by improper foreclosures, regulators are attempting to extract a staggering payment of nearly $30 billion for unspecified conduct. The $30 billion would most likely fund a new slate of housing programs long sought by the administration, but previously rejected by Congress."

Shelby called for the banking committee to start an inquiry into the settlement talks. He also asked the Obama administration and banking regulators to "refrain from entering into any settlement agreement until Congress has had an opportunity to conduct appropriate oversight on this matter."

(Source.) "Proven correct?" Your own statement admits being unsure what the proposed settlement is for and how it would be used. "I'm totally guessing here, but if I'm right about what I'm not specifying, then I was totally right a year ago about that thing I might have said."

It's not clear what Congress might want to investigate, though -- maybe whether mortgage servicers were getting illegal abortions for the 13-year-olds Congress wanted to allow them to rape? -- because the Fed, working for a One-Term Obama Administration that desperately wants to avoid ever offending the GOP-- announced this week that it couldn't find even a single wrongful foreclosure... ever:

In a recent meeting of the Fed's Consumer Advisory Council, the nation's central bank came under intense criticism by consumer advocates for an upcoming report that's expected to claim that after an investigation, they've determined that no wrongful foreclosures have been carried out by US banks.

(Source.) Which either means that the Fed doesn't have Google, and can't find this story about a soldier whose home was wrongfully foreclosed while he was fighting in Afghanistan on their series of tubes, or that the Fed was very, very narrowly defining wrongful:

Huffington Post reporter Shahien Nasiripour was at the meeting and caught a number of key remarks, namely council members attacking how the Fed's investigators had defined what a wrongful foreclosure is. According to Nasiripour, they defined it as a foreclosure which happens when a home owner is not significantly behind on payments -- leaving out a litany of other situations and acts that consumer advocates call criminal behavior.

(That's from the same source.) So you see? As long as you define things the right way, like passing an abortion law that lets a man rape a 13-year-old girl, you've got no problem.

"Wrongful foreclosures? That seems so harsh. Let's go with Inadvertent Housing Dilemmas, and give Wall Street another $33 Trillion."

Click here for more posts on this topic.

Here's a way to reduce or eliminate your disgusting habit. No, not THAT one. The OTHER one.

One of the hardest things to do when quitting smoking is breaking the psychological habit of when you smoke. Trust me, I know: I quit smoking 6 years ago and each day was a battle to not smoke at all those times that I would ordinarily smoke -- in the car, or when I just got up in the morning, or just after a court hearing.

There's something that may help you with that if you're trying to quit smoking, or cut down: CiGRX.

CiGRX -- you can read the cigrx reviews here -- is marketed as a mint-flavored lozenge that you can use to avoid smoking in situations where you shouldn't or can't smoke -- movies, meetings, busses, the like. And lots of people have apparently been using it for just that.

But I think that if CiGRX works that well on occasions where you can't or shouldn't smoke, you could use it for those times you don't WANT to smoke, as well: maybe you don't want to smell like smoke at a job interview so you use it on the way there, or before you meet a girl for a first date. You could use a CiGRX when you're about to go to bed, instead of that last cigarette of the day, or when you wake up in the morning, instead of that first one. In short -- whenever you can't, or shouldn't, or DON'T WANT to smoke, you can try a CiGRX.

I wish I'd had something like that to help me break those psychological ties to when I LIKED to smoke; it might have been easier (and not taken years) to quit.

So go read those reviews and decide if CiGRX can help you avoid smoking in socially unacceptable situations, or avoid smoking altogether, maybe.

A four-year-old lawsuit demonstrates how unfair things are for homeowners. (Mortgage Issues.)

Summary judgment is supposed to be both a drastic remedy not easily invoked, and a time-and-cost saving procedure when facts truly aren't in dispute and the only questions before the court are legal questions.

That's a pretty simple idea -- so how did summary judgment, like offers of settlement, get twisted into something expensive, time-consuming, resource-wasting, and, as often as not, ultimately unsuccessful?

The answer lies in a case that shows just how muddled and mixed-up litigation is getting -- especially foreclosure litigation, which is getting muddled and mixed-up because banks are muddling and mixing it up and courts are letting them, and the result is a system that punishes homeowners and rewards lenders -- while letting lenders do nothing and forcing homeowners to do everything.

The case is Bank of New York v. Cano, a less-than-two-months old unpublished Wisconsin Court of Appeals decision that shows how stupid litigation can be.

In Bank of New York, the bank filed a foreclosure suit in 2007, and at least one of the defendants (according to CCAP records) filed a response in May 2007.

Nothing then happened for over thirteen months until the Court entered an order for dismissal, which online records say would take effect in 20 days unless good cause was shown otherwise. More than 20 days later, on October 15, 2008, the Court dismissed the action. The reasons aren't online, but the Court of Appeals' opinion says that the dismissal was "based on the parties' agreement to work on repayment."

That, though, differs with what Bank of New York said the dismissal was for: Bank of New York, in an unusual move, argued that the court had dismissed the order because Bank of New York had not prosecuted the action or otherwise failed to comply with court rules.

Why would Bank of New York argue that it had its foreclosure case dismissed because it had failed to prosecute it properly? The answer lies in what Bank of New York did next, and what Bank of New York did next was move to reopen the case, claiming that the Canos were in violation of an agreement to keep repaying.

That's the first part of stupid litigation: nowhere in the case does it say whether Bank of New York had tried to work out a payment arrangement with the Canos before filing suit, or after, or both. We simply know that Bank of New York filed suit and then did absolutely nothing for 13 months before agreeing to let the action be dismissed.

From that, it's possible to infer that Bank of New York didn't view the foreclosure as all that pressing, and was willing to work out a deal with the Canos... but first, Bank of New York wanted to make sure that it tacked on some legal fees to what the Canos owe, put them into the stress of litigation, and tie up our public court system.

Why not work out a deal before filing suit?

The second stupid part of litigation is that the motion to reopen was premised expressly, according to CCAP notes, on a claim that the agreement to repay had been breached -- and on a claim that Bank of New York needed to conduct discovery.

That's what CCAP says, anyway, and what the opinion says, and that's my source of information on those two.

CCAP says on the day of the motion to reopen hearing,

Case called at 10:24 am Attorney Christina E Demakopoulos appears by telephone for Plaintiff BANK OF NEW YORK. Defendant Mario Cano SPOUSE OF DIANE G CANO in court. Court reviews case file documents and gives status update of the case including dismissal order of 8/08. Mr. Cano-doesn't oppose, just wants credit for payments to other mortgage company Atty Demakopoulos-Request to reopen to conduct discovery. From August - present, been attempting to resolve without success. Court grants motion and reopens case Recess: 10:28 am

The Court of Appeals said "The bank later moved to reopen the case, asserting that the Canos were not meeting their payment obligations under the mortgage."

So was it that no workout was achieved, as the CCAP notes state? Or was the action reopened because no payments were being made under the mortgage, as the Court of Appeals said? Or was it that the Canos didn't "cure their default as contemplated under the dismissal order," as the Court of Appeals said the Bank argued in reopening the case?

(On a related note: Here, Bank of New York's attorneys, the Blommer Peterman firm, moved to reopen a case that had been dismissed to work out a loan modification or cure; in a case I was involved in, that same firm representing a different lender opted to file a new action rather than reopen the old case under identical, or nearly-identical, circumstances. One difference between the two cases: In Cano, the Canos were pro se litigants at the time the case was dismissed and when it was reopened, so Bank of New York's lawyers were not dealing with a lawyer. In my case, the defendants were represented by counsel when the action was dismissed, so a motion to reopen would have been required to be served on a lawyer, rather than a pro se litigant -- whereas a complaint must be served on the defendant personally with no requirement to provide me a copy. In other words, it appears as though some lawyers are actively trying to avoid letting homeowners have legal help, which is partially what I argued to the Court in my case -- and avoided a default judgment.)

Back to Cano, where it's unclear, remember, on why Bank of New York wants to reopen the case rather than file a new action... or simply work out a deal with the Canos, who appeared before the circuit court and said they'd been making their payments.

And back to stupid litigation part number 3, Bank of New York's claim that it wanted to conduct discovery. One might say "What discovery do you need to conduct?" After all, the only issue in the case (judging by the opinion from the Court of Appeals) was whether or not the Canos had been making payments -- and the Canos had already provided the Court with not only a claim they were paying, but documents showing they'd submitted payments, through 2007, to a servicer for the loan.

Still, maybe Bank of New York needed to conduct discovery -- maybe they needed to subpoena that other servicer, or get bank records, or maybe the Canos weren't complying with informal requests for proof of payment. Let's give Bank of New York the benefit of the doubt and see where that discovery takes them...

... because the Court of Appeals upheld the order reopening the case, saying that the decision was governed -- of all statutes-- by section 806.07(1)(h), Wis. Stats., the "catch-all" provision that's supposed to only apply when no other provision does; that alone is an extremely unusual ruling and bears some scrutiny, too.

Section 806.07(1)(a) lets a litigant reopen a case within a year of dismissal for excusable neglect. But this motion was filed more than a year later. Section 806.07(1)(g) would let a court reopen a case for equitable reasons, and that would seemingly apply to equitable cases like foreclosures. But the Court of Appeals didn't reference that section, and it looks like the circuit court analyzed the case under (1)(h), a rarely-used statutory subsection.

The Court of Appeals upheld that ruling, essentially ruling that under section 806.07(1)(h), a circuit court can reopen a case if the opponent fails to provide sufficient reason not to reopen:

"Thus, while the Canos asserted that the Bank was not entitled to foreclosure, they did not assert that there was insufficient reason that could justify relief from the operation of the judgment in the foreclosure action."

(Emphasis added.) That's a pretty big, and indirect, shifting of the burden of proof.

So the case was reopened, and Bank of New York was going to do some discovery, or so it had told the circuit court. And, like I said, we should give Bank of New York's attorneys the benefit of the doubt and believe they were sincere in claiming they wanted to do discovery.

The problem with giving someone the benefit of the doubt occurs when they go back and show that you should have just doubted them. As is the case here:

There's no record of what, if any, discovery was conducted. What there is a record of is that after the case was reopened, in February 2009, nothing else happened for another 8 months. At least not in court; maybe discovery was being conducted (although I suspect not, as we'll see in a minute.)

So now, Bank of New York has sued someone for foreclosure, then done nothing for 13 months. Then they've reopened that foreclosure... and done nothing for 8 months.

Lenders frequently complain (to me, at least, and to courts when I'm around) that all lawyers like me do is delay things. What you don't hear those lenders and their lawyers say is "Well, sometimes, judge, we file actions and then do nothing for about 2 years, other than leave homeowners in a sort of legal limbo where every day they have to worry that they might lose their house."

If it was so all-fired important to file this case, and reopen this case, and conduct discovery, why was it left sitting for 21 months?

And was discovery conducted, after all? Who knows? I suspect it wasn't, because that's where we get to the fifth (unless I've lost count) stupid litigation part: Bank of New York's faulty summary judgment motion.

Bank of New York, hit with a second order to do something or have the action dismissed, in October, 2009, did something: it filed a completely defective motion for summary judgment that didn't come near the standards for that motion, but which still required that the homeowners respond to it, and now in fact required that they hire themselves a lawyer.

The motion for summary judgment -- which was granted by the circuit court, it should be noted -- was supported only by a lawyer's affidavit claiming that a default existed and identifying business records, and by a servicer's affidavit which, in the Court of Appeals' words:

is similarly flawed... no financial documents are attached to the affidavit.... the affidavit fails to set forth the necessary facts.... The agent's affidavit does not contains any facts to show that the agent is qualified to testify.

(Emphasis added.)

Given that, it's hard to see why the circuit court granted summary judgment, especially because the Court of Appeals relied on the by-now-famous Palisades case.

Granted, the circuit court's decision was issued a month or two before Palisades came out, but Palisades wasn't new law at all; it simply reiterated the longstanding requirement that business records be admitted only by qualified testimony.

And, it should be noted, the circuit court had time to think it over; initially it denied summary judgment, only to reconsider and, two days before the new year, foreclose on the Canos' home-- and then had a chance to re-reconsider when the Canos filed a motion to reconsider, which motion was heard after Palisades was issued, and Palisades was big news everywhere I went in that period of time.

So the decision stood, and the Canos had to file an appeal, doing so on February 11, 2010, and waiting nearly a year to hear from the Court of Appeals that they were right -- and they're back in circuit court now, or will be, four years after a foreclosure was filed, incurring legal fees two ways -- because they now have to pay a lawyer, and Bank of New York is (no doubt) tacking its legal fees on to the mortgage, so that the Canos may ultimately have to pay Bank of New York's lawyers for its legal fees as well as their own, even though some (if not all) of those legal fees should never have been incurred and some (if not all) were incurred in violation of court procedures and longstanding rules of evidence.

Sound simple? Of course it doesn't. Sound cheap and quick? Of course it doesn't. Sound drastic? Yes -- but not in a good way.

So long as banks insist on barging ahead with foreclosures before working things out, so long as courts allow motions for summary judgment that clearly do not meet the standard for proceeding to be litigated, anyway, so long as courts let Banks reopen cases willy-nilly rather than incur new costs to re-file and re-serve, so long as courts let banks tack on legal fees even for efforts that didn't work and litigation that shouldn't have happened, banks will continue to do those things. It's lucky for the Canos that they got a lawyer and managed to appeal, and lucky that the Court of Appeals was having a good day and did the right thing. But all that did was land the Canos back into litigation in the circuit court, where they insisted they shouldn't have been all along because they keep claiming they've paid, and because Bank of New York has never submitted any evidence that they didn't pay.

For four years. For four years the Canos have been fighting, and for four years they've supplied proof of payment and for four years Bank of New York has, both literally and figuratively done nothing.

Does that seem fair? Does that seem right? Does that seem like the way we want to work a court system or mortgage lending system?

Click here for more posts on this topic.

The SECOND thing they teach you in law school is never to say what the FIRST thing they teach you is. OOPS!

Being an amazingly handsome, supersmart, superright, funny, well-dressed lawyer doesn't come easy...

... no, wait, it does. It's amazingly easy. Or so I assume. I wasn't talking about me being the "amazingly handsome, supersmart, superright, funny, well-dressed lawyer". I'm only ordinarily handsome, not amazingly handsome.

So for me, I have to work at what I do -- just a little -- and that means that I'm looking to make things a little easier, a little faster, or a little cheaper. Which is why I have a bookmark on my home and work computers for Savings.com -- and this is that actual bookmark:

http://www.savings.com

Nice, isn't it?

I have that bookmarked because Savings.com makes it easier to find cheap stuff to buy and to save money on things I need for work and for home -- and to quiz people on where to get that stuff, too, which lets me use my cross-examination skills while saving money, and how often do you get to do that?

Pretty often, actually, if you use Savings.com -- and one of my favorite things is the Q&A section called "Ask, Answer & Save." I mean, I know how to look for deals on the things I already know I want or need -- if I'm looking for a movie for the Babies!, for example, I can click on the Books Music Video link and get 10% off an order at Barnes & Noble, or $5 off orders at Target. I can get 15% discounts on ink and toner simply by going to Office Supplies.

But "Ask, Answer & Save" gives me ideas I didn't know I wanted to have -- questions about the best way to book a flight, or discounts on entertainment attractions I didn't know existed can give me ideas about other things I want to do, and how to save money doing them. It's like having a whole list of great ideas I can take credit for. And taking credit for great ideas is the first thing they teach you in law school.

Do I ever get tired of being right? What do you think? (Consumer Law Issues)

This time, what I was right about was the passage of the "Credit CARD Act" that aimed to protect consumers but missed the boat. The final parts of the law went into effect last year, and at that time I said:

Overall, I'm not sure the bill helps or hurts. It's too easy to say "Yay consumers! Boo companies!" But companies have to make money, or they won't provide the services we want. If credit card companies find it too hard to make money, they won't be able to provide credit. ...there's been little discussion about ...whether it's better for consumers to have access to credit (albeit costly) or for our economy to stop supplying credit to all but the least-risky users.

So here's hoping that the relatively-toothless and over-informing regulations will help consumers in the long run; I'm not sure it does anything in the short run.

That was me then; here's the experts now:

"The affluent still have affordable access to credit cards and lucrative reward programs. The demographic the act was to protect finds it very difficult to receive credit, and whey they do, it's expensive. Overall, there has been a negative impact on consumers," says Tim Smith, senior vice president at Firstsource Solutions, a business processor outsourcing company.

(Source.) In fact, that article notes that some things haven't changed at all: credit card companies are still charging fees ranging from the now-discontinued $1-per-statement fee to receive a paper bill to inactivity fees, while students under 21 are still receiving (and getting credit cards.)

But other things have changed for the worse: there's been an 11% drop in average credit available, while interest rates are going higher (the article blames that on economic factors, but interest rates have been low until recently in other markets.) And, of course, the poor and middle class got hurt:

Perhaps the biggest losers are those with less-than-stellar credit. "There's been a double whammy as issuers have cut credit lines. This has lowered credit scores [line utilization is an important factor in credit scores], further worsening their condition," points out Scott Crawford, founder of ... an online service that helps people get out of debt.

The law, then, managed to help people with poor credit get denied credit at all, or pay more for the limited credit they could get. Yay for Consumers!

Click here for more consumer law matters.

So if you get a friend request from "John Claims Adjuster" you may want to investigate a little further.

I'll bet that not many people will be clicking "LIKE" on this one. (Is that enough Facebook jokes yet?) A Canadian judge ordered disclosure of Facebook records for a litigant, which in and of itself isn't very surprising. What is surprising is that it was done in possibly the most offensive way -- requiring that the litigants own lawyer trick her.

An insurance company has settled a personal injury lawsuit after a New Brunswick judge ordered a woman's lawyer to seize his client's Facebook photos.

The case arose after Erica Sparks was injured in a car accident in 2008 and sued the other driver for damages.

The insurance company of the other driver fought the claim, and wanted to see Sparks's Facebook photos to determine the severity of her injuries.

Court of Queen's Bench Justice Fred Ferguson worried she might delete some photos if she knew she was about to be ordered to turn them over.
The legal fight took a controversial turn when Ferguson, in a Feb. 4 ruling, ordered James Crocco, Sparks's lawyer, to hire another lawyer to summon Sparks to a meeting without telling her what the meeting was about. At the meeting, the second lawyer would tell Sparks she was under a court order to log in to Facebook and hand over her photos.

....

[T]he judge said in most cases a person can be relied on to not delete information from a social network site, such as Facebook, because if caught, it could hurt his or her legal case.

But the New Brunswick judge decided to issue the order anyway.

"The defendant has established that proceeding in the usual fashion by having both parties being present for the motion to preserve and protect the data sought would expose the currently unexposed data to an unacceptable risk that it may be removed from the profile(s) of the plaintiff before it can be secured," the judge wrote.

(Source). Lawyers involved in the case and others said the decision amounted to a "civil search warrant" and correctly pointed out that such an order likely required that the lawyer violate ethical duties including being honest with clients and providing legal advice on how to comply with discovery requests.

The article notes that the judge had previously ordered litigants to release information on how often they access Facebook, but didn't say why the judge felt the unusual order was required here -- especially when he could simply have ordered her not to make any changes to the site, to allow the insurance company access, and, if she was found to have violated the orders, could have dismissed the case as a sanction for violating his order. (At least, that's what could happen in Wisconsin.)

But you know what they say: You can't get to 500 million friends without violating a few ethical rules. They do say that, don't they? They should.

When life hands you lemons, take a quiz and see if you can do something about that.

Got a car that's not working like it should? You should check into whether it's a lemon-- and whether you can make a claim under your local Lemon Law. "Lemon Laws" in general are laws that require car manufacturers and/or dealers to repair or replace a car that has too many defects or problems in the first couple months (if not longer) of ownership.

Some enterprising Lemon Law Lawyers have come up with a questionnaire - -and a widget you can put on websites -- that will help you determine whether the Lemon Laws apply to you and what you can do.

Don't put up with a car that's not as good as it should be -- investigate your rights in a quick and easy way using those questionnaires.