An Angry Dad gets ordered to have his kids, or be angry... but not both. (Family Law Matters)

Do you have a First Amendment right to disparage your ex online?

Maybe. I'm no First Amendment lawyer. A better question might be: should you be disparaging your ex-wife online during the divorce, while also fighting for custody?

That's the question posed by The Psycho Ex-Wife Blog. Here's the background:

A Doylestown Township man is claiming a Bucks County judge violated his freedom of speech and his right to due process by ordering him to shut down thepsychoexwife.com, a blog he began in 2007 to discuss his bitter divorce and child custody battle. ... [The Judge] Gibbons... made her ruling in an effort to protect the two children of Anthony and Allison Morelli, according to her statements in transcripts of court proceedings. In doing so, she made it clear that violation of the no-blog ruling could jeopardize Morelli’s standing in the custody case. Court records show Gibbons told Anthony Morelli and his girlfriend, Misty Weaver-Ostinato, who created the website, are wrong if they believe the order infringed on their free speech. “This is about children,” said the judge during a June 14 hearing. “You may say anything that you would like to say. You may publish it. You may put it on a billboard. But you will not have your children, because that is abusive.”

(Source.) Morelli's defenders are claiming the First Amendment protects his right to say what he wants, and comparing him with that recent U.S. Supreme Court case that said it's okay to let kids shoot people (electronically) but not to talk to them about sex. And they've even started a site to help raise money to fight the claim. I won't link to that, because I don't support them.

Saying this is about First Amendment rights is fighting the wrong battle -- again, I'm no First Amendment scholar, but I am a family law lawyer (sometimes) and what's at stake is not the right to speak, but rather Morelli's behavior vis a vis his ex-wife and kids. The kids are aware of the site, the article notes, so they know that Morelli claims his ex is "psycho." (There's no word on whether the kids have read the site.)

You expect a certain amount of animosity in divorce cases -- and kids can handle it. Kids need to learn that not everyone gets along, and I've never been one of those people who expects divorcing spouses to even be nice to each other (I tell my clients to be professional, and to refrain from doing or saying mean things, but never counsel them to be nice.)

A person who goes beyond that risks interfering with the other parent's relationship. I'm not a believer in parental alienation syndrome, either, for a variety of reasons -- but you can affect how kids view the other parent, and parents have an obligation, in Wisconsin, to support the children's relationship with the other parent.

How far that goes is an open question -- but in this case, the judge made references in her interim order (it's not a final order at all; the results of competing petitions are not yet decided) to Morelli's girlfriend being called mom and it also appeared from the hearing transcript that Morelli had encouraged his kids to come do something with him on Mother's Day, which two facts alone suggest that he's actively working to undermine their relationship with Mom.

None of those details appear in the story about Morelli and his free-speech-advocating blog; just as no actual posts from the blog appear in those stories.

But I know something that some of those people don't. I know about The Wayback Machine, which has preserved 25 posts from www.thepsychoexwife.com, and I checked them out. Here's what people paying to defend psychoexwife.com are supporting:

From January 4, 2008: Morelli accuses his ex of having "BPD" (bipolar disorder?) and the maturity of a 10-year-old, suggests that she use more board games and less computer games, posts the entire text of an email he sent (but not her emails) and finishes one post with this bon mot:

The bigger issue is, they spend so much time with her and her family of dysfunctional fucktards that I have a hard time believing that they will not grow up with some sort of "interpersonal relationship" problems, if not worse.

That post continues with topics like "Child Support? Or state windfall?" ("Child Support. These are two of the ugliest words in our language.")

Then there's this: "I decide to break no/low-contact in order to make sure she's clear my position on the order," about which I'd say, Morelli may have a First Amendment right to write about violating a no contact order, but the First Amendment doesn't grant the right to actually violate the order.

Here's a screencap of what the site looked like before it was championed by First Amendmentists:



And here's Morelli's description, under "Characters" of his ex-wife:

PEW = Psycho Ex-Wife, She’s on the precipice of 40 and probably looks all 50-years of it. Imagine if you will, Jabba The Hut, with less personality. She spends her time with her bipolar sister (PP, see below) drinking her days away bemoaning her victim status, when she isn’t stuffing the children with fast food, buying them toys, or pushing them towards the TV or computer.

Scattered with links to things like "Why Co-parenting doesn't work," the blog includes posts like "A Father Begs For Time With His Children, Part 3." In which Morelli claims that his wife never produced receipts for "alleged" expenses, and complains that her having to parent the children is a "a burden that exists because [the ex] wanted the divorce."

That post, by the way, detailed an exchange that was four years old.

Making those kinds of comments available for the children is itself problematic in a divorce situation, and goes beyond simply not liking your ex (which I think is fine) to actively running her down and posting about it publicly.

Even if the children did not see it, though (and remember, they were aware of it, so who can imagine they did not go read these things) the posts I read were suffused with hatred and bitterness, all of it directed at his ex and her family.

Although the court system takes its hits, too. Referring to a court hearing, Morelli writes:

I just discovered that the money machine that is our family court system is operating at peak money-taking efficiency. It was my mistake as I read the court order, which indicated that the matter was “generally continued and consolidated with the matter scheduled for conference on 6/24/2009.” I interpreted that to mean that the hearing was continued until that date and the usual and customary post-conference hearing would take place when we couldn’t come to an agreement.

The post goes on to reveal that he had his sister-in-law (who he also refers to as "psycho" and "Aunt DUI") subpoenaed to the non-hearing -- and decided to leave the subpoena in force, even though it was just a child-support conference.

Then he writes "15 Things Stepmoms Not-So-Secretly Want To Say To Moms." Here, Morelli exercises his First Amendment rights to say things like:

Don’t forget, most of those gifts are paid for with your child support that comes from our home and our hard work. You get paid well. He gets paid better. We have 50/50. What we send isn’t really child support, it’s free money for you to do with what you please

Hard to misinterpret that. And

Yes, the kids need a roof over their head. You should think about that the next time you’re at the mall shopping for goodies for yourself.

The final few posts accuse the ex-wife of filing for custody to get a "payday" because she was in foreclosure trouble, calls the ex "deranged" and says she's been drinking, and posts highlights of what Morellis decides is bad behavior, including putting the kids publicly in the middle of it by quoting them and saying what they're reporting.

Did I mention that Morelli's blog contained advertising? One thing I know about commercial speech is it's easier to regulate than purely personal speech.

So Morelli, as a so-called "concerned dad" exercising his First Amendment rights, spent years badmouthing his kids' mom and publicly embarrassing them and her-- apparently for profit. He has allowed his kids' parents' divorce to be publicly available on the Internet for years, so that not only will they see it but their friends will see it -- apparently for profit. And he's used that entire time to make money (apparently) off his kids' and his own angry dad-ness.

Like I began: I'm not a First Amendment lawyer. But I have trouble seeing most of Morelli's actions- which are appparently commercial and not familial -- as protected constitutionally.

On the other hand, I have little trouble seeing the potential harm (and possibly actual harm) that can come from his actions. In Wisconsin, the court must consider, in deciding custody issues, whether one parent is likely to support the other parent's relationship with the children. Morelli's blog makes abundantly clear that he cannot do that.

Angry dads have every right to blog. But they don't have every right to inflict their bile and anger on their kids... apparently for profit.

Sorry, Kansans. (Interesting Judicial Comments.)

"Talk Kansan."

-- Judge William D. Johnston, circuit court judge for Lafayette County, Wisconsin, telling a lawyer to slow down when he talks.

Does the State of Wisconsin have to pay for a lawyer for your ex-husband to avoid his support obligation? (Family Law Issues.)

I'm a bit behind the curve on this, but that's because (a) I do less family law nowadays than I used to and (b) I like to think about things a bit before I comment on them -- which probably comes as a surprise to many judges, but it's true.

What I'm thinking about today is Turner v. Rogers, the U.S. Supreme Court case decided about a month ago that's being heralded as "No Civil Gideon." Which is surprising, because the reporting that Turner doesn't serve as a civil Gideon doesn't in any way tell people what a remarkable decision it is, in two contexts -- and how its ramifications may be heard for years.

Turner involved an appeal by a father who was locked up for civil contempt for not paying his child support. The case had arisen under South Carolina law when a clerk of courts as a routine matter issued an "order to show cause" to Turner asserting that he was behind on his support. Turner and his ex appeared in Court, where the judge briefly questioned Turner about his alleged contempt:

The hearing was brief. The court clerk said that Turner was $5,728.76 behind in his payments. The judge asked Turner if there was “anything you want to say.” Turner replied,

“Well, when I first got out, I got back on dope. I done meth, smoked pot and everything else, and I paid alittle bit here and there. And, when I finally did get to working, I broke my back, back in September. I filed for disability and SSI. And, I didn’t get straightened out off the dope until I broke my back and laid up for two months. And, now I’m off the dope and every-thing. I just hope that you give me a chance. I don’t know what else to say. I mean, I know I done wrong,and I should have been paying and helping her, and I’m sorry. I mean, dope had a hold to me.”

The judge then asked Turner's ex about the issue, and she apparently urged the court to lock Turner up. Turner was locked up, with the Court making no express finding of his "ability to pay," ability to pay being the significant factor in whether a person can be held in civil contempt.

Turner had been held in contempt five times previously; on four of them, he'd paid up to avoid jail. On the fifth, he did six months in jail.

Neither Turner nor his ex were represented at the hearing.

Turner appealed with pro bono help, and lost all the way up to the U.S. Supreme Court, which considered first whether the Sixth Amendment required the appointment of counsel to represent an indigent defendant in civil contempt proceedings.

Justice Breyer wrote the majority opinion, and immediately (as the dissent noted) changed the questions subtly, asking whether the Fourteenth Amendment required the provision of counsel, and analyzing the case under that area of law, identifying the interest in not being locked up as substantial, but balancing that interest by noting three competing factors.

First, and confusingly, Justice Breyer found that the determination of indigency is often straightforward -- and equated that with the determination of inability to pay, without explaining which way that factor tipped, in favor of (or against) requiring appointed counsel in civil cases.

Second, the Court noted that oftentimes the other person in court is not represented, either -- here, Mom had no lawyer by her side. So,

A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding.”

Which means it might slow it down or make it unfair.


But, before going on, I note that Breyer et al didn't bother noting that in this case, while Mom was theoretically the opposing party, the process had been initiated by the state, and all questioning was done by the judge, who had called the proceeding to determine why his order wasn't being followed.

Which means that it wasn't really Turner against Mom, but Turner against Judge, with the judge acting as the inquisitor and prosecutor. Breyer didn't address that apparent disparity -- and neither did the dissent. While the Court found it might be unfair to appoint a lawyer for Turner because of the advantage it would give him over Mom, it didn't comment on whether that would even the field in how Turner dealt with the judge.

Thirdly, the Court pointed out that there are other procedural safeguards that can be used:

Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.

About that, I'll say this: Turner did use such a form, Turner did have the opportunity to respond to questions about his status, and while the Court did not make an express finding, in any case where the Court does not make express findings of fact, typically appellate courts will uphold the factual findings if the record shows that the finding could be made.

In other words, Breyer's suggested other procedural safeguards existed in Turner (aside from the first), which makes this all the more amazing:

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank.

The Court then reversed and remanded (a hollow victory, as Turner had already served the sentence.)

So, about that majority opinion then. Over on Wisbar, the State Bar of Wisconsin's website, this was the headline and opening paragraph for the story about the case:

Argument for Civil Gideon fails, petition still pending with Wisconsin Supreme Court

Argument for Civil Gideon fails, petition still pending with Wisconsin Supreme Court June 24, 2011 – Criminal defendants have a right to state-appointed counsel under the Sixth Amendment, as held in Gideon v. Wainwright, 372 U.S. 335 (1963). Recently, a petitioner from South Carolina tried and failed to argue that, as a matter of due process, state courts must also provide court-appointed counsel to indigent persons in certain civil cases.

It wasn't until the last paragraph that it was noted that the Court had determined that the proceeding violated Turner's Due Process rights, remanding the case -- a development I think has significant ramifications for Wisconsin, even without the invitation by the Court to bring a better case to merit the right to counsel.

The Court held that without the provision of procedural safeguards (and/or counsel) a state cannot constitutionally incarcerate a defendant for civil contempt.

In Wisconsin, contempt proceedings are not initiated by the government (as a rule, more on that in a second). They're started by the recipient of the funds, who typically uses the mandatory court form for that. That form (an order to show cause) requires that the person who is served with it bring

to court a fully completed, dated, and signed Income and Expense Statement and all required attachments

But doesn't include that form. (That requirement is reiterated in a local rule, Dane County local rule 403.) Wisconsin law also says that if a person doesn't bring the form, the Court may use the other party's as a basis for making findings of income and assets.

So:

No warning on the document that the "critical" issue is ability to pay. No provision of a form beforehand. There will be a hearing, but if the recipient/payor shows up without his form, he may not get to "respond to statements ... about his financial status." Two of the four suggested protections are not currently available in Wisconsin -- or at least not automatically and in every case.

Now, consider that in Wisconsin, there are Child Support Agencies, which allow a parent -- at no charge -- to apply to get the State of Wisconsin to help him or her collect child support. Without regard to ability to pay.

I saw nothing on that site that allows a parent who pays support to apply for help... at no charge.

I have personally attended many hearings at which Child Support Agency attorneys were doing the work of the recipient of the support (and doing so with state approval, as shown.) And how many hearings were there where I wasn't representing the other side?

What would Breyer, and his cohort, have to say about a state which freely appoints lawyers to payees, but not to payers?

What if you were incarcerated by the State based upon a case presented by a Child Support Agency working for free at your ex's request?

The Court's opinion strongly suggests that in such a case, the state must appoint counsel, and even more strongly suggests that where the government lawyers bring the case on behalf of the government as the recipient, counsel is needed.

But they don't decide that. They just, as I said, appear to invite the case to be made so they can hold that there is a limited right to counsel.

Turner is a landmine waiting to happen for states -- not just because of child support concerns, either. Numerous civil events in Wisconsin can lead to imposition of jail as a contempt remedy. Wisconsin lets guardians ad litem bring contempt actions for nonpayment of their fees -- and in that case, it's an experienced lawyer up against a possibly pro se litigant who faces jail time for not paying a lawyer's fees.

And there are supplemental examinations -- orders issued at the behest of a litigant, usually a debt collection attorney, for a debtor to appear. A debtor who fails to appear may be held in contempt and jailed for not telling a debt collector about his assets.

Those litigants, too, may be up against experienced lawyers, and might have a right to either due process procedural safeguards, or the appointment of counsel, under Turner.

Turner is therefore more significant for what it might allow or require than for the limited impact of its "no civil Gideon" ruling -- a ruling that applies only in certain limited circumstances.

Now, a word about the dissent by Thomas, joined in whole by Scalia and in part by the other two conservatives. This isn't a blog about general constitutional rights or generalized legal issues. But the dissent, and the fact that four of the current justices joined all or part of it, is chilling for people who appreciate civil rights.

Thomas starts off with a shot across the bow of Gideon v. Wainwright:

as originally understood, the Sixth Amendment guaranteed only the “right to employ counsel, or to use volunteered services of counsel”; it did not require the court to appoint counsel in any circumstance. Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (SCALIA, J., dissenting) (slip op., at 2); see also United States v. Van Duzee, 140 U. S. 169, 173 (1891); W. Beaney, The Right to Counsel in American Courts 21–22, 28–29 (1955); F. Heller, The Sixth Amendment to the Constitution of the United States 110 (1951).

That can only be read as continuing what appears to have been a 2010 attack on the provision of appointed counsel to indigent defendants (I didn't read the Padilla case cited, but I assume Thomas cited it correctly.) Thomas also makes references to current understandings of constitutional rights, which I (perhaps being alarmist?) read as a sub rosa threat to undo those protections:

Under the Court’s current jurisprudence, the Sixth Amendment entitles indigent defendants to appointed counsel in felony cases and other criminal cases resulting in a sentence of imprisonment.

(Emphasis mine.) You have to understand how language is used to see the threat there. Thomas could, if he respected precedent (or the Gideon line of criminal cases), have simply omitted the bolded portion. The fact that he included it -- and used the word current -- is an indication that he feels that can (and should) change.

Thomas then also engages in disingenuous debate that is below the dignity of even a Justice such as himself. Arguing that the more general provisions of the 14th Amendment do not supercede the more specific provisions related to use of lawyers, Thomas says:

But if the Due Process Clause created a right to appointed counsel in all proceedings with the potential for detention, then the Sixth Amendment right to appointed counsel would be unnecessary.

That is disingenuous (and indicative of the dearth of intellectualism in conservative thinking) for several reasons.

First, Thomas believes that the Sixth Amendment does not provide a right to appointed counsel at all. That's what he said, remember:

as originally understood, the Sixth Amendment guaranteed only the “right to employ counsel, or to use volunteered services of counsel”; it did not require the court to appoint counsel in any circumstance.

So, there is no reason to believe that the Fourteenth Amendment wasn't intended to provide for that right, in a general way -- say, securing the assistance of counsel in proceedings where incarceration was an intended result to ensure that due process is followed.

(I note that I'm not a scholar on the 14th Amendment and have not researched it. I'm just pointing out flaws in Thomas' biased and ends-driven dissent's reasoning.)

In other words, if the Sixth Amendment says nothing about requiring appointed counsel, then interpreting the 14th Amendment to require that does no harm to the Sixth Amendment.

Thomas has, therefore, already twice indicated why he is unworthy to be a Supreme Court justice: he is attacking (with no good reason to do so) stare decisis, a basic rule of jurisprudence in our country for over two centuries; Thomas' love of original intent does not, apparently, extend to loving the founders' intent that basic rules of jurisprudence be adhered to. And Thomas has asserted two contradictory principles without explaining how he can believe both.

Thomas then goes on to declare that had the majority simply found that the Sixth Amendment didn't require counsel here, he'd have been fine with that:

The majority is correct, therefore, that theCourt’s precedent does not require appointed counsel in the absence of a deprivation of liberty... But a more complete description of this Court’s cases is that even when liberty is at stake, the Court has required appointed counsel in a category of cases only where it would have found the Sixth Amendment required it in criminal prosecutions.

Thomas, though, doesn't explain why Turner's proceeding is so unlike a criminal prosecution that it doesn't merit counsel -- and doesn't explain why in other cases that were not criminal prosecutions but were like one, the Court had held that the right to counsel does exist. Thomas, in other words, asserts a conclusion without explaining why that conclusion is right.

Turner holds potential problems for litigants and states, if used properly by defendants who want to avoid incarceration but can't afford a lawyer.

But Turner holds greater problems for society, in that four of the current 9 justices joined in all or in part of a poorly-thought out, badly-argued, disingenuous opinion that, if given its head, would almost certainly have used this case (or one in the near future) to revoke the right to appointed counsel in individual cases. And that is bad news for a lot of people -- and not just criminals.

I'd be willing to bet that after Ginsburg retires and a new conservative judge is put on the Court (as will probably happen), Gideon is going to be gutted -- which largely makes this decision a one-off, in that Breyer may have opened the door for litigants to expand the right to counsel in civil cases where incarceration may result but that door is going to be slammed shut by the time the next case reaches it -- and that won't be where the Court stops. I give Gideon about 5 years, unless the next justice appointed is far more liberal than any appointed in my lifetime.

Autism Works: Hacking Autism

Autism Works is an across-the-board post I'm doing to help keep people informed of recent events affecting those who have autism and their families. The goal of Autism Works is to raise awareness of, and collect information for, people on the autism spectrum by providing news and information about autism-friendly businesses and developments in treatments and identification of this condition.

Michael Offutt, who writes the blog SLC Kismet, pointed out a while back that there are a great many autism-related apps on the iPad, and it looks like there might be more, so I'll take a look at those today:

First, autism apps. I have a Droid smart phone, one I got in part because Mr F's and Mr Bunches' teachers suggested an iPad last year as something to help the boys learn to communicate. Rather than invest $800 plus right off the bat on something that may not work, I went cheap by getting the touch-screen phone and trying that out.

Finding apps hasn't been difficult. Finding apps suited for autistic kids has -- there is, so far as I can tell, no "keyword" or "tag" type of search for the Droid store.

On the one hand, any app that lets the boys use the phone is a good one, and the smart phone (or touch screen pad) works great for that: Mr Bunches, who particularly likes the computer, had a lot of trouble originally learning how to use the mouse and keyboard, and still has trouble clicking, so a touch screen was great in getting them to play games and use the screen.

That let them play games -- they liked Angry Birds, in particular -- and watch videos all by touching, rather than clicking, and Mr Bunches in particular learned to get around Youtube pretty successfully on my phone, which was also portable enough for him to carry around.

Specific games that I found worked particularly well on the small touch screen included Fisher Price's online learning games: they have counting and ABC games that work well on a touch screen, and some "learning about opposites" and "animal sounds" games that even on a 3-by-1 inch screen look good and are easy to work. They're free and easy to access.

Another game Mr Bunches particularly enjoys, and which can be played on a small or large screen for free, is the "Jumping Box" game, where a person has to click-and-drag on a box to make it slide and jump through obstacles. (I like that one, too.)

"Talking Tom" was an app suggested by the teachers -- it's a cat that repeats everything you say in a slightly higher voice, and reacts to certain touches and other input. It's available for free and for $0.99, but don't bother paying; there's no difference between the two.



This site was suggested by the school teachers to find apps for an iPad. I'd give you the name, but it doesn't seem to have one. I haven't checked it out at all yet, but I'll try to download and review some of the apps in the future.

Then there's "Hacking Autism." This is a project I just learned about yesterday, an attempt to help "give people with autism a voice." They're going to have a Hackathon to get volunteer software developers in touch with autism specialists to develop new touch-enabled apps for the autism community.

You don't have to be a programmer or expert to participate: the site is seeking comments on existing ideas, and suggestions for apps to be developed, so if you have autism or are related to someone who does, weigh in and let them know.

You might even get some inspiration from the Hacking Autism's "Stories Of Hope," which includes a touching story written by an autistic boy who had never spoken until he was given a "Lightwriter," after which he was able to have a conversation with his older brother -- a conversation that was so special, they videotaped it for his parents and made it their Christmas present.

Use of "Arbitrary" income figure on stated income loan leads to plaintiff's verdict. (My Actual Case Results.)

I believe, but can't be sure, that this might be the first civil verdict against a mortgage broker in the State of Wisconsin. On Friday, Dane County Judge Michael Nowakowski ruled in favor of two of my clients in a lawsuit we brought under chapter 224 of the Wisconsin Statutes.

My clients have requested as much anonymity as they can have in this situation, so I won't reveal their identities here. But I will give a brief background of the pertinent facts:

Beginning in 1999, the plaintiffs worked with the mortgage broker to borrow money. The plaintiffs had purchased their house using cash from a prior settlement.

The first transaction was to finance a small business run by the husband, and consisted of a $39,000 loan secured by a mortgage.

Over the next 7 years, the plaintiffs were repeatedly approached by the mortgage broker to refinance, each time increasing the indebtedness associated with the mortgage lien. The reasons for each refinance varied, but there were 5 or 6 refinances during the time all brokered by the same person.

In 2005, the plaintiffs contacted the mortgage broker, who they trusted, to arrange a refinance to help deal with credit issues stemming from a home sale gone bad; that home sale involved the plaintiff's previous house, on the East coast. The mortgage broker prepared an application for a loan, listing the wife, but not the husband, as the borrower. The mortgage broker did that because the wife's credit was better than the husband's.

The broker also, on the application, listed the wife as being the sole proprietor of the husband's business, and said her income was $8,500 per month. Based on that, the broker arranged a "stated income" loan.

Prior applications had either shown no income information, or that same $8,500 figure.

The 2005 "stated income" loan went through on a "2/28" program, in which the first two years' interest was fixed, and after that would adjust upward if necessary. The broker said that they would refinance this loan in 6-12 months when the plaintiffs' credit improved. The broker arranged that 2/28 loan despite the fact that the plaintiffs had expressly sought a fixed-rate loan. The broker testified at trial that the plaintiffs could have borrowed money on a fixed-rate loan, but the interest would have been 1-2% higher.

In November, 2006, the broker wrote the plaintiffs saying that based on the income information he had reviewed, there was no way to do a loan based on their actual income. Instead, he proposed to do another "stated income" loan to modify the 2/28 loan to a fixed rate, using the wife's credit again. He again prepared a loan application listing the wife as the sole proprietor of the business, but this time stating that her income was $15,000 per year. On that basis, the loan closed as a fixed rate loan with a principal balance of $341,000.

The borrowers had trouble paying that loan and the wife testified that she called the broker to try to fix the problem, but said the broker laughed at her. (The broker denied this in testimony.) The plaintiffs then contacted the lender directly, and the lender refinanced the single note into a first and second 80/20 mortgage to take away the "TAMI" (a form of mortgage insurance). When that relief did not help, the plaintiffs defaulted and a foreclosure action was filed.

The plaintiffs (my clients) contended that the broker had violated chapter 224 by preparing applications using false information, and by failing to act in a competent manner which safeguards the public's interest -- in arguing, we said that the brokers had set up a system in which every question was answered the same way: refinance, because refinancing generated fees, whereas telling the borrower to go to a lawyer or seek a modification from their lender did not generate fees.

We also argued that repeatedly including unsecured credit card and other debt, as well as numerous refinances in which the origination fees are financed, helps increase the principal, to the borrowers' detriment, with the broker seeking to increase the principal because loan origination fees and yield spread premiums are based on the amount of principal in the loan.

The defendants contended that the income figures (which they described as "arbitrary") were reasonable estimates that were in keeping with the stated income loan programs then in existence; and the defendants contended that the plaintiffs were in pari delicto because they had signed the applications and the plaintiffs' accountant, in letters, had said the wife ran the business. (The plaintiffs denied soliciting those letters.)

Judge Nowakowski ruled that the use of the $8,500 and $15,000 "arbitrary" income violated chapter 224 because the income exceeded by many factors the actual income known to the defendants, and because there was no reasonable basis for what was described as an estimate. Judge Nowakowski further appeared to agree with the plaintiffs' (my) argument that brokers have a duty to not make some loans, ruling that defendants' conduct violated the provision of law that prohibited brokers from acting incompetently in a manner which fails to safeguard the interests of the public.

The court then awarded just over $11,000 in statutory damages; the determination of the reasonable fees to be awarded to my clients will be made in the near future.

Autism Works: A review of "My Autism Team.com"

Autism Works is an across-the-board post I'm doing to help keep people informed of recent events affecting those who have autism and their families. The goal of Autism Works is to raise awareness of, and collect information for, people on the autism spectrum by providing news and information about autism-friendly businesses and developments in treatments and identification of this condition.

Today's business is My Autism Team, a website that promises to help with what these posts are intended to do, to: help people find autism-friendly businesses and identify service providers and other tips.

Signing up for My Autism Team is simple: a little bit of detail to set up a profile (and a chance to upload a picture) and you're ready to go, with an email verification that was simple. The profile didn't offer me a chance to enter information about more than one child, and the categories of information about the children were pretty limited (just four options about his or her behavior, rather than entering, say, a sentence or two), but it only took about 5 minutes to sign up.

Once signed up and verified, you can enter information in a format similar to Gather or Twitter -- blog posts with a button to click about whether you're having a "good" or "bad" day, and the chance to enter additional information. (I, for example, entered my first post as having a "good" day, and noted in the explanation that it was "like most days.")

That leads to a screen that looks like this:


Elsewhere, you can enter information about service providers and others -- the information is quick to enter and offers suggested tags. I put in Integrated Development Services, the people who provide the therapists for the boys 5 days a week. The information you're allowed to provide is supposed to be limited to 1 sentence about the provider; I question whether that's truly helpful.

I then went looking for other services to see what was there. The boys recently had to stop occupational therapy because we can't afford the co-pay (thanks, Republicans!) each week, so I went to see if there were occupational therapists in our area that I could contact who might have a lower (or no) co-pay.

The search itself is simple: type occupational therapy and your location and get a list of providers listed there -- but the six providers suggested for me had no information about them at all, beyond their office address. There wasn't even a way to click to contact them by email, on or off the site, making it somewhat less than useful.

I also looked for "sports leagues," as I've been trying to find a league that is autism-friendly so I could get the boys involved in soccer (I'm not a big fan of soccer, but it seems like it would be the easiest sport for them to play.) Under sports leagues I got these results within 20 miles of Middleton:


Again, there was almost no useful information under those tabs. I clicked on "Middleton Sport Bowl", which is only a few minutes from our house, because I thought an autism-friendly bowling league might be just as good as soccer, but found only an address and this review, from 18 months ago:

1/31/10 Middleton Sport Bowl is a classic neighborhood bar and bowling alley. They updated the Bowl a few years ago and it's a nice bowling alley. You can always run into a familiar face, having fun, and eating good bar food.

Frankly, that looks like it was posted on the Middleton Sports Bowl fan page, and isn't in any way helpful to someone with autism or a child with autism; what I was looking for was whether they have leagues, or "sensory friendly" days or times that it's less crowded (and therefore less noisy and easier to police children.)

I've only just found the site, so I'll keep checking in -- it's obvious to me that it works better as more people use it and provide information; that's how crowdsourcing helps, after all. But the fact that it's been around for over 18 months and hasn't developed a lot of information isn't encouraging for me.

Also discouraging: why aren't there sports leagues for kids with autism? Or mixed-leagues for spectrum- and non-spectrum kids? I can't do everything, here.

Today's Site is: "The World Of Mismatched Socks." Written by a woman with autism about her and her also-autistic brother's lives, this blog is a fascinating look at what life is like for someone on the spectrum. It's funny, interesting, at times a bit sad, and well-written.

The latest post begins like this:

What come to your mind when you think about Hell?? Most people think of fire, brimstone, gnashing of teeth, A Justin Bieber concert, algebra, etc...

Click here to read more.

If you have information you think would be helpful for this feature, please
Click here to Email me;
include "autism works" in the subject line.

I can see clearly now... and get on to more important things with my time and money.

This is a Sponsored post written by me on behalf of globaleyeglasses for SocialSpark. All opinions are 100% mine.

As a former glasses wearer, I can tell you that shopping for glasses was always something I hated doing.  It took a whole day, going out to some strip mall or store and having to try on frame after frame when I’d rather be doing anything else.

And the prices!  I remember when Sweetie first had to get glasses for work, and we went to find a pair she liked; this one place we went to had sales advertised for about $30, so we started there, but the $30 frames were ugly and weird looking, so we had to go to the ever-more-expensively priced frames.  Ultimately, a single pair of glasses for Sweetie cost over $150.

I’ve always wondered why eyeglasses have to be so high-priced and why it’s got to be so inconvenient to get them, but now I can stop thinking about that, because GlobalEyeglasses.com seems to have solved the problem.

With GlobalEyeglasses.com, people can buy affordable prescription eyeglasses online, for a LOT less than they cost in the store: the frames start at only $6.95, and GlobalEyeglasses.com guarantees 100% satisfaction or your money back.

I know what you’re thinking: How can I try on glasses and see how they look online?  That’s another advantage GlobalEyeglasses.com offers: They have this thing called “Virtual Mirror,” where you can try the frames on online, and you can share the virtual mirror looks with friends and family, so you can get input from them without having to drag your whole crew out to the mall with you.

And they’ve made it easier to find the frames you want: No wandering around a big store; instead, just use the ‘refined search’ to home in on your frames.

Sitting right at your desk, you can try on lenses, ask your friends what they think, click, and get glasses shipped for under seven dollars.

The Good, The Bad, and the Potential Foreclosure Remedies. (Mortgage foreclosure.)

A lot of people are talking about the July 6, 2011 decision in In Re Bank of America Home Affordable Modification Contract Litigation, a multi-district class action suit brought in the federal District Court for Massachusetts.

In that case, a group of homeowners brought a class action suit alleging that they comprised two different and distinct classes: People who had been accepted into HAMP temporary modifications, but not given permanent modifications; and people who had loans from Bank of America but who had not yet been given a HAMP offer or modification.

These groups sued, alleging a variety of theories for recovery (and seeking an injunction against foreclosure) all of which revolved in some way around HAMP. The defendants (rather than simply modify the mortgages for everyone involved and get money flowing in) sought to dismiss the suit -- that is, Bank of America sought to dismiss a lawsuit which asked that it comply with its contractual duties.

The Non-Hamp class, the people who had not yet received HAMP offers, were dealt with summarily: Their claim was that they were were 3rd party beneficiaries of the HAMP contract. The court, relying on a recent U.S. Supreme Court case [Astra USA, Inc. v. Santa Clara County, — U.S. —, 131 S.Ct. 1342 (Mar. 29, 2011)] held that no such status could arise unless the contract indicated an intent to directly benefit the homeowners. Case dismissed.

(Keep in mind: Bank of America sought to dismiss a claim that asked that it be required to comply with a contract that orders it to try to modify loans rather than foreclose. How's that TARP program feeling, now?)

(Keep in mind that as the stack of decisions finding no private cause of action under HAMP grows, the federal government could, with a single one-page directive, grant the right to sue to enforce the HAMP contract. Where are you, Timothy Geithner?)

The second group -- people who did get temporary HAMP offers but were never given permanent modifications (and never denied one, either) were granted class action status, the Court finding that they alleged claims in breach of contract -- the temporary offers constituted new, enforceable contracts with consideration in the promises to provide new, up-to-date information and comply with new escrow requirements and other modifications.

The Court also granted class action status under deceptive trade practices statutes, finding those claims (as respected particular laws) plead properly.

It's significant to note that this is a very preliminary decision: the motion to dismiss was a 12(b)(6) motion, so all the Court found so far was that the Complaint stated a claim for relief; it hasn't granted any relief. But as a legal step forward, it provides some guidance:

1. The Court has found that if you are offered a temporary modification under HAMP, you have a right to sue for breach of that temporary modification, and seek enforcement of the HAMP contract.

2. The Court has found that offers to enter into HAMP modifications on a temporary or permanent basis can be actionable under false advertising and other consumer protection statutes -- a good finding, in that it means that HAMP doesn't pre-empt consumer protection laws.

So if you have not yet been offered a HAMP modification, you may be out of luck. But if you've been entered into the HAMP program, then your rights got a little more enforceable two weeks ago.

There's a billion dollars waiting to help you stay in your home. (Mortgage Issues.)

If you haven't already heard, the Department of Housing & Urban Development (HUD) has started up the Emergency Homeowner Loan Program, a program to provide you money to help pay your mortgage.

You may qualify for the program if your income has dropped 15% or more a result of un- or under-employment, or a medical emergency, and have a total household income within limits (roughly $75,000 or less). If you meet those criteria, are 3 months behind, and have been warned of a potential foreclosure (or are in foreclosure) you should apply for the program. (There are other qualifications, as well.)

CLICK HERE TO APPLY.

18 states are not covered by the EHLP; those states have a 'hardest hit' fund that may be of assistance, as well.

What happens in Vegas stays in the courts...

Or so it seems, from the Gawker story re-reporting a story the Las Vegas Weekly first broke:

[John Luckett is] suing the Las Vegas-based Pinball Hall of Fame, a nonprofit arcade and museum. Why? Because local police told Luckett to stay away from the place after some shoving allegedly occurred between him and the arcade operator, Tim Arnold. Also, the arcade's volunteer staff violated his civil rights as a "pinball wizard" (a protected class):

In all, Luckett filed a total of 11 complaints, ranging from assault to breech [sic] of contract (for turning off the machine) to discrimination, the latter containing a claim that volunteers at the Pinball Hall of Fame are "prejudice" against him because of his pinball wizardry and ability to play for hours on 50 cents. Arnold says the litigation has already cost the nonprofit charitable organization that operates the Hall of Fame $13,000 in legal fees.

The volunteers are supposedly lazy, too:

"I asked [a male volunteer] to fix several machines that day," Luckett said. "I got angry at him because I wanted him to fix Xenon within a relatively short period of time and he didn't."

The story goes on to note that Luckett has been prohibited from filing suits in his home state, California, after he was branded a "vexatious litigant," and that he's filed at least 40 lawsuits around the country.

It doesn't provide details, but I'm guessing he's 0-for-40.

Here's a version of Pinball Wizard you don't usually here:

So you think you're a tough guy?

You're not half as tough as the guys in "Petty Cash."

Petty Cash is the hottest new thriller around, a stunning work of art from indie director Ross Bigley. Starring Bai Ling, it... Oh, heck. Why bother telling you when I can showing you (or something like that?)

Petty Cash Trailer from Dirty Job Films on Vimeo.

If I could depose Jerry Jones, I'd say "Do you really think Tony Romo is any good?" I'd like to get that on record.

It's been nearly five months since I last mentioned the ill-advised (from a fan's or client's perspective) class action lawsuit over the Super Bowl ticket problems. But absence doesn't make the heart grow fonder, or lawyers grow any less desirous of making a name (and fees) for themselves.

The latest round of litigation saw the NFL moving to dismiss the fans' (?) suit on grounds that their offers for compensation were adequate and barred the suit. (Although I haven't read the briefs, I'm guessing that they're arguing the mootness doctrine, which, you'll recall, I suggested the NFL use.

The plaintiffs' (?) lawyer threatened in response to depose Jerry Jones and Roger Goodell, and also called the motion a "Hail Mary" pass, thereby proving that he's not above too-cute litigation claims and also that he's unfamiliar with football, generally (a Hail Mary being a pass at the end of a half, as time expires, trying to score at a time when an incompletion or turnover cannot hurt the team.)

The plaintiffs' (?) argument is that the case isn't moot because

there is nothing on record to prove that all eligible fans received settlement offers from the NFL. Moreover, the offers had too many strings attached, including caps on the amount of compensation for meals and lodging, the filing said.

In short: the offers weren't good enough because you wouldn't let us spend, in the future, any sum of money on food and lodging we felt like.

But that's not compensation; that's a bonus. The plaintiffs (?), if they were guaranteed reimbursement without a cap, would be free to rent an entire floor of a hotel and stock it with filet mignon and bill the NFL for it -- something I'm pretty sure that most of them would not have done the first time around, and wouldn't do if they were footing the bill a second time around.

The plaintiffs (?) also argued that they were entitled to lost wages, presumably on the theory that they would not have taken off work if they'd known they would end up watching the game in an underground bunker, or wherever the Cowboys eventually seated them. That argument is a little stronger than I initially had thought, and may carry some weight.

But overall, this suit is a Seinfeldian experiment: a suit about nothing. Or nothing more than lawyer's fees and a desire to get publicity, I suppose. Which brings up my Explanatory note on the use of the (?): I suspect that, as with many class-action suits, the lawyers in this case are not doing much that benefits their clients so much as taking actions that benefit them. Hence, I question whether the litigants or the lawyers are behind the lawsuit; I suspect (to use an accurate football phrase, unlike the plaintiffs' (?) lawyer) that the quarterback is calling his own plays, here.

The new Wisconsin Budget contains a gift for creditors.

I haven't made up my mind if this is a good or bad thing yet: The small claims jurisdictional limit is increasing from $5,000 to $10,000 in Wisconsin, but only for certain actions.

Personal injury claims are still civil actions if the amount sought is more than $5,000, but most other actions that people see on a regular basis are now going to go through small claims court when the amount involved is less than $10,000.

There's a lot to consider about the change:

First, it increases the number of people who may be sued in consumer actions in small claims, and small claims courts are not always friendly to (or even cognizant of) consumer laws -- plus small claims courts frequently have reduced standards for service of process. In Dane County, service can be made by mail on any person with a Dane County mailing address. But that's last known address, and the last known address these days may be months or years old. If mail doesn't get returned as unserved, a judgment can be entered against the defendant, and that judgment has serious consequences, including jail.

In small claims actions, after a judgment is entered, a financial disclosure form is sent to the defendant, and a failure to return that form can result in a contempt action and a bench warrant being issued. Contempt actions require personal service, not mailed, which should protect consumers, but I personally was involved in one case where my client was not served -- and the plaintiff admitted he had not served my client -- and the court still required my client to appear in court (with me) to defend against a contempt action.

Another potential pitfall: corporations can appear in small claims court without a lawyer, so cases that involve $10,000 worth of claims can now be litigated entirely by nonlawyers. I'm not one of those lawyers who jealously guards the bar; I think just about anyone should be allowed to represent someone else, because of this: You get what you pay for, and I make a good living helping people out of jams caused by mortgage rescue scams, incompetent brokers, debt settlement companies, and others hired by people who should have gotten a lawyer but instead tried to save money.

But that's for another day. The problem with a bunch of nonlawyers getting involved is that you have people in court who don't know the law, and if they're dealing with consumer laws that the court commissioner may be unaware of, there are going to be two classes of cases: those that follow the law because a lawyer is involved, and those that don't.

I've seen what happens in that situation: That's the mortgage foreclosure crisis. A bunch of people have lost their homes because of nonjudicial foreclosures that might not have happened in court.

The idea of small claims court is appealing -- literally, sometimes, as many small claims cases get two shots at a verdict, one in front of the court commissioner and one in front of the judge on de novo review -- in part because it's intended as a quicker way to resolve cases. But that idea doesn't often work out in practice: lawyer who file small claims actions on the part of their clients are increasingly using discovery, which is perfectly permissible but runs somewhat contrary to the idea of a less formal, faster resolution to cases, which is itself another problem.

Given all those questions, I'm surprised, actually that this is the first I've heard of this provision; it just took effect from the latest, contentious budget, but went under everyone's radar, including mine, and I followed the budget battle pretty closely.

On the whole, I'd guess that this measure is intended to help creditors recover funds more easily: debt assignees can use small claims' procedures on more cases, saving filing fees and speeding the process of getting a judgment up. It doesn't seem to be a consumer friendly measure at all.

Start getting results from your resume.

As an employer, and one of the people in my firm who is in charge of interviewing candidates for jobs, I get to look at a lot of resumes.

And I do look at them, although I'm not entirely sure why. Sometimes it seems like nearly every single resume I see is about the same: unhelpful.

For instance, a lot of resumes I see speak in generalities. They'll list a firm the person worked for before, and a title, and then some job duties. And the job duties are listed as "oversee and implement litigation strategies."

That could mean a lot.

There's a partner in our firm who oversees and implements litigation strategies: he assigns cases to younger lawyers, tells them what the various plans are, and then, when the plan begins to be put together, he'll review documents to make sure they're correct and will alter the strategy as necessary. But he doesn't draft the discovery requests, and he doesn't question witnesses or prepare for trial.

Then there's me: I oversee and implement litigation strategies, too - but I do 90% of it myself.

Those are two very different things, and your resume should say which one it is. Were you implementing litigation strategies by taking orders and sending out preprinted forms? Or questioning a witness in court?

When I read a resume, too, I look for overstating. A lawyer who's six months in at a big firm generally hasn't done much in "assisting with major litigation in federal court" -- the assisting, I know, tends to be "I got documents together."

And I get why you want to overstate it: you want me, and my partners, to say "This guy can litigate."

But what if you can't, when you get in the door? How long will you last, if the position calls for someone who actually knows what they're doing?

A good resume accurately reflects who you are and what you can do, without bragging or minimizing and without speaking in groupthink or generalities. The more specific, the better. Upping your qualifications (falsely) will work against you. Sometimes you're just not qualified for the job. Other times, firms like mine are looking for someone who doesn't have a lot of experience because we don't want to have to break old habits to get you to know ours.

One problem is that they don't generally teach writing resumes in school, and you don't get feedback on whether or not your resume helped you get a job interview, or whether it hindered it. (I've interviewed people IN SPITE of a bad resume, after all.)(And hired them.)(But that's rare.)

So you may want to get some resume help from people who CAN give you feedback; guys like me generally don't want to to contact you and say "Hey, your resume didn't interest me because of this..." but there are places out there that can help you (I've linked to one of them in this post.)

You may be the best worker in the world, but if your resume doesn't convey that, it'll be hard to get into the conference room to impress me.