It should come as no surprise that I'm a pretty BRIGHT guy.

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

When I ran for Judge two years ago, I had a shoestring budget (my only campaign contribution came from a lawyer who treated me to lunch.)  So I had to do something to make myself stand out, and I didn't have the money for a TV or radio ad.

What I decided on was the good, old-fashioned standby of the local politician: Flyers.  Specifically, little printed flyers of me, with a few points about me and a website, and I'd go around handing them out to people and putting them in doors and under windshields.

So when it came time for my campaign committee (me, plus my then 4-year-old twins) to choose the flyer paper, we went with AstroBrights papers, of course.

AstroBrights paper is paper that GETS NOTICED.  It comes in the brightest, most fun colors you can imagine, and probably some that are brighter and more eye-catching than you can actually dream up.  They're THAT bright, and hence that interesting.

These colors POP out, and just call out to whoever's looking at them.  They're impossible to ignore; they're like little fireworks of paper sitting in your hand or inbox, and so when I wanted to make sure that people would read that I was honest and reliable, I used almost-neon yellows and bright greens to make people want to pick up my brochures.

That's why I'm happy to help out AstroBrights, now; the difference they made by being brighter and higher-quality than every other paper (and more affordable than most papers, for a shoestring campaign) makes me want to give them a some props, and especially now that they're doing the "Give a Brighter Year" sweepstakes-- a contest that'll let you win money for the school of your choice.  How much? A LOT: Cash and merchandise worth $30,000, all for the school of your choice.

And you can get prizes for yourself -- make a craft project using AstroBrights and enter it in the "Make Something Astrobright" design challenge; post your entry on Twitter or Pinterest (hashtag #goastrobrights) and let people see your brightest ideas.

(Get it? Brightest ideas? BRIGHTest? I'm awesome.)
 

Banks didn't turn evil in 2006, you know...

For a short opinion involving only $17,000 or so worth of money, there is a lot going on in in In re Hill, 210 B.R. 1016 (1997), not the least of which is enough discussions of “dragnet” clauses to repeatedly prompt someone to remember Joe Friday’s admonition, so we will begin with just the facts:

The Hills borrowed money from the bank and gave the bank a mortgage, securing the debt with their homestead and a vacant lot. That was in 1993.  The mortgage contained a clause that said:

This Mortgage secures prompt payment to Lender of (a) the sum stated in the first paragraph of this Mortgage, plus interest and charges according to the terms of the promissory notes or agreement of Borrower to Lender identified on the reverse side, and any extensions, renewals or modifications of such promissory notes or agreement, (b) to the extent not prohibited by the Wisconsin Consumer Act (i) any additional sums which are in the future loaned by Lender to any Mortgagor, to any Mortgagor and another or to another guaranteed or endorsed by any Mortgagor primarily for personal, family, or household purpose and agreed in documents evidencing the transaction to be secured by this Mortgage, and (ii) all other additional sums which are in the future loaned by Lender to any Mortgagor, to any Mortgagor and another or to another guaranteed or endorsed by any Mortgagor, (c) all interest and charges, and (d) to the extent not prohibited by law costs and expenses of collection or enforcement (all called the "Obligations"). This Mortgage also secures the performance of all covenants, conditions and agreements contained in this Mortgage.

Before that, the Hills had gotten a Mastercard from the bank, with a credit limit of $5,000.  Following the mortgage, the Hills opened “Ready Reserve” accounts, which were essentially lines of credit for overdraft protection.  The reserve account agreements said:

The Loan Balance and Finance Charges are or may be secured by a lien upon any credit balance or other money now or hereafter owed to Borrower by Bank, and by all security agreements of Borrower now or hereafter held or acquired by Bank.

Then, the Hills borrowed money to get a car, and the Note for that said that:

Lender may, at any time after the occurrence of an event of default and notice and opportunity to cure, if required by § 425.105, Wis. Stats., set-off any amount unpaid on the Obligations against any deposit balances I may at any time have with Lender, or other money now or hereafter owed me by Lender. This Agreement is also secured (to the extent not prohibited by the Wisconsin Consumer Act) by all existing and future security agreements between Lender and any of us, between Lender and any guarantor or indorser of this Agreement, and between Lender and any other person providing collateral security for my Obligations. However, this Agreement is not secured by any principal dwelling unless described in this Agreement.

Got all that? What happened next is that the debtors sold the vacant lot, with the Bank’s consent, and the Bank, claiming the Hills didn’t care how it applied the $17,000 in proceeds did this:

(1) $9,182.22 was applied to the debtors' MasterCard credit card debt;
(2) $4,935.62 was applied to the debtors' two Ready Reserve Accounts;
(3) $1,260.67 was applied to the debtors' delinquent real estate taxes on their homestead; (4) $612.74 was applied to the debtors' vehicle loan with the Bank; and
(5) $1,262.36 was applied to the debtors' Mortgage Note.
It’s tempting to think that banks started behaving with a callous disregard towards customers only after the mortgage crisis of the first decade of the 21^st century; but this took place in 1997 or so, with the Bank deliberately leaving its debtors – who had a longstanding relationship with them – at risk of losing their home even though the debtors paid down their debts by $17,000+.  Food for thought.
The debtors then filed for chapter 7 bankruptcy, and the trustee moved to recover the $17,000 as a preference, under a variety of theories.  It all boiled down to this, though: how enforceable are dragnet clauses both in general and under the Wisconsin Consumer Act?

The Hill court gave the matter some thoughtful consideration, noting that Wisconsin had previously ruled that dragnets needed to be related to debts contemplated at the time of entering into the agreement, and that to make that decision you first look towards the terms of the agreement itself:

Thus, the antecedent liability of the debtors must be stated in clear terms and the subsequent liabilities must either relate to a similar course of financing or fall within the expressed intent of the parties.

The Court then determined that since the Mastercard debt predated the dragnets, it had to be clearly identified in the documents; it was not, and so the payment of the credit card was a preferential transfer (the result of that being the Bank would be required to pay that money to the Trustee, who would use it to pay claims.)

The reserve accounts and the car loan both contained language that included them in the mortgage debt – so the Court had to look to see whether the debts were “related” or not.  The test for “relatedness” turns out to boil down to “is it business or is it personal,” despite a bunch of words devoted to how to determine that, and because these were all personal debts, the two factors (dragnet clause + relatedness) were met.  The overdraft protections and the car loan were secured by the mortgage and therefore the payments were not preferential transfers.

(Food for thought, two: In the past, banks required checking accounts to have a minimum balance. They then eliminated that and instead had overdraft fees.  Now, banks allow you to open lines of credit to cover bad checks and charge interest instead, and secure that protection by your primary residence in a voluntary lien that is not dischargeable in bankruptcy. Is that progress?)

The trustee had one final challenge to those overdraft loans, arguing (correctly) that the Wisconsin Consumer Act prohibits taking a security interest in a debtor’s homestead to secure debts of less than $1,000, and pointing out that the transactions on the Mastercard and overdraft accounts were each likely less than $1,000; but the interpretation of what is a “transaction” has always provided that it’s the total amount owed at the time of the enforcement that is important, including finance and other permitted charges.  Since the amount owed on those balances was greater than $1,000 at the time of enforcement, the exclusion on liens did not apply.

(Food for thought, three: Could a creditor let an overdraft balance of, say, $600, grow over time to be more than $1,000 with late fees and penalties and allow it to be secured, then?)

Can your landlord kick you out for saying you have a right not to get kicked out by your landlord just for saying that? (Still with me?)

The customer is always right, as the saying goes, and sometimes, the customer has rights, something that more businesses would do well to remember.

Which is to say, I have had reason this week to be thinking about retaliatory evictions, and when they exist and when they don't, not surprising in a market that is considered to be saturated with willing renters and landlords who suddenly have a glut of customers.

Imagine you're a grocer, and you're trying to establish yourself in a neighborhoood.  You'd probably have sales and deals to get people in the door and be really nice to them once they're in the door and keep the store clean and bright and you'd do everything you could to encourage them to come back.

Now imagine that all the other grocery stores disappear, and the only place people can go is your store -- and some of those customers who were there from the start, well, they're a little slow to shop, they never spend much, they always take an extra free sample from the pizza aisle... they're kind of a pain.

Would you encourage them just to leave, to make room for newer customers who were more desperate and would probably spend more because they've got no other choice? Would you let quality slip because, hey, where else they gonna go, am I right?

If so, you might be a residential landlord!  Now, not every landlord goes and kicks people out simply because there's someone else willing to pay more, and that's not illegal anyway (well, it would be, if the landlord claimed you were breaching your lease when you weren't) although it may be bad business. 

What is illegal is kicking you out (when you're not in breach of your lease as to rent) for your exercise of a few rights that landlords might find annoying -- namely, your exercise of your rights as a tenant to live in a safe, clean apartment.

Section 704.45 of the Wisconsin Statutes provides you protection from 'retaliatory' evictions:

704.45  Retaliatory conduct in residential tenancies prohibited.
 

(1) Except as provided in sub. (2), a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises, refuse to renew a lease or threaten any of the foregoing, if there is a preponderance of evidence that the action or inaction would not occur but for the landlord's retaliation against the tenant for doing any of the following:

(a) Making a good faith complaint about a defect in the premises to an elected public official or a local housing code enforcement agency.

(b) Complaining to the landlord about a violation of s. 704.07 or a local housing code applicable to the premises.

(c) Exercising a legal right relating to residential tenancies.

(2) Notwithstanding sub. (1), a landlord may bring an action for possession of the premises if the tenant has not paid rent other than a rent increase prohibited by sub. (1).

(3) This section does not apply to complaints made about defects in the premises caused by the negligence or improper use of the tenant who is affected by the action or inaction. 

 

The eviction isn't retaliatory unless it's done solely based on a tenant doing one of the three things protected by the statute (Dickhut v. Norton, 45 Wis.2d 389, 399, 173 N.W.2d 297, 302 (1970)), and here's the thing about that:

If you sue a landlord for, or raise as a defense, retaliatory eviction, the case will likely be heard by judge, because to get a jury trial in an eviction action, you've got to make the demand and pay the fees at the time you first appear in court (sec. 799.21), so if you show up to argue with the landlord and then demand a trial and then want a jury trial, you may have waived one already, and you're stuck.

And what's wrong with a judge? Maybe nothing, maybe everything -- because the judge has to decide if you not only did one of the protected things, but if the landlord's sole motivation was to retaliate against you for doing that.  And do you want that decision made by one judge, or by 6 (or 12) jurors hearing your side of things and determining whether the landlord's excuse for not wanting to renew your lease or raising your rent is really the reason?

That's a decision best made by someone who knows the judge in question, too -- which is why it's a good idea to call a lawyer.  Oh, and if you win your case, you may be able to get your attorney's fees repaid to you, whereas the landlord never gets hers reimbursed.

Don't let your grief get in the way of making good choices about the caskets you buy.

Most people, I'm sure, just buy the casket for their loved one from the local funeral home handling the rest of the details -- but they don't have to do that.

Back in 1995, the FTC created the "Funeral Rule", allowing consumers to supply their own funeral goods.  (Find it here at http://www.ftc.gov/bcp/edu/pubs/consumer/products/pro26.shtm). That's done to ensure that people pay the best price they can, and that's especially important when you're talking about something like a casket, which most people don't pre-buy and have no idea they'll be needing until suddenly they do.  There's little time to shop around for a casket...

... but you may not need to.  There's this company called SameDayCaskets that will provide free, same-day delivery of a casket you can order online. No need to go around to different stores, when you can just quickly make arrangements for a beautiful one (They've got caskets for sale-los-angeles right now!) and have it shipped (FREE!) that same day.

SameDayCaskets provides all of California with outstanding customer service, and hundreds of options to choose from. Whether you need a caskets-losangeles or somewhere else on the West Coast, they've got caskets for sale and they'll get them to you right now.


It's hard losing someone close to you, but don't make it worse by paying more than you can afford for the same casket.

So close... and yet so far away.

Student loans are a contract, like any other contract -- a phrase I just wrote for the first time in my life but which I imagine I'll have to say a lot, in the future, as student loans begin to be more aggressively collected, defaulted, and hence litigated.  (I say that because I've spent the past five years telling many judges that "mortgages are contracts just like any other," with varying degrees of success at applying contract law and ordinary rules of evidence to mortgage contracts, which many judges still treat as though they're a uniquely rare bird not subject to our laws.)

And the fact that student loans are a contract like any other means that rules of contract law and evidence will apply to them just like every other deal you make with someone -- and that means that student loan lenders, like any other party to a contract, might mess things up and not be able to collect.

Unless, of course, the debtor messes up worse than the lender, which is what happened in Wisconsin Higher Education Corporation v. La Barge, an unpublished student loan case decided by the Wisconsin Court of Appeals way back in 1988.

Facts are sparse in the opinion -- as is the case with unpublished opinions, which are usually authored by an unelected, unaccountable lawyer working for the Court.  Keep that in mind, election reformers: A great many public policy issues are decided by someone you don't know who has never run for office.  Here's what we know:

 The Wisconsin Higher Education Corporation appeals and Gerald La Barge cross-appeals a judgment on the corporation's claim that La Barge defaulted on several student loans. According to the terms of the loans, La Barge should have started monthly repayments in December, 1975 and continued them until the principal and interest was paid. La Barge did not begin paying until February, 1977 and made no payments after September, 1981. 

 So it's a collection action, and La Barge doesn't want to pay.  Ho, hum... let's see what else is... hold up, what's this?

The trial court found, however, that it was either the corporation's negligence or policy decision that permitted La Barge to avoid payments before February, 1977 and between September, 1981 and January, 1983. The court therefore concluded that the corporation was equitably estopped from assessing its seven percent interest charge during those periods, although the corporation received judgment for the principal and remaining accrued interest.

That's all we've got: Tell me more! I wanted to shout, but the Court of Appeals from 1988 can't hear me, so I didn't bother.

That's kind of a victory; we don't know how much the interest was but La Barge didn't have to pay 7% interest for about four years or so; that's not bad.  But then he appeals, and the Board appealed, and:

We conclude that the court erred by denying judgment for the interest that accrued during the periods of nonpayment even though the corporation may have been responsible for them. We also conclude that the issues that La Barge raises on cross-appeal are either waived or have no merit.

Again, I have to take issue with the use of the phrase "no merit."  No merit means, literally, no merit: that the claim shouldn't have been brought, at all.  As I recently convinced a court on a similar issue, losing does not equate to frivolous.  The failure to convince a court doesn't mean you have no merit to your case.

Consider the burden of proof - -in civil cases, a preponderance of the evidence.  So I have to have 50%+1 of the evidence to win -- you have to just barely be convinced that I should win and I win.

I was in Court once challenging whether a complaint had been served properly on my client.  The judge said this:  "I find each side equally credible.  I don't know who to believe."

With that, he looked at me and said "But it's your burden of proof, so you lose."

Did my case have no merit?  NO! It was equally convincing... and so I lost.

La Barge's claims were deemed to have no merit by a Court of Appeals' staff lawyer -- but the Circuit Court found they had plenty of merit, in some cases.

Anyway, here's what the Court of Appeals did:

It found that La Barge couldn't prove estoppel because he has to show that his reliance was detrimental, but, the Court said,

  The court erred by estopping the corporation from collecting interest during the periods it allowed La Barge to avoid or suspend loan payments. To invoke estoppel, the court had to find that La Barge detrimentally relied on the corporation's action. Mercado v. Mitchell, 83 Wis.2d 17, 26-27, 264 N.W.2d 532, 537 (1978). There was, however, no detriment to La Barge. The corporation's failure to enforce its loan terms allowed La Barge to continue using a substantial amount of money he otherwise would have been repaying in monthly installments. The corporation is therefore entitled to all the interest that accrued on the loans regardless of who bears the blame for postponing or suspending the payment schedule.

That's faulty reasoning -- by that reasoning, no lender could ever be estopped unless the borrower went on paying during the period of alleged estoppel, which in turn means that no borrower can ever take advantage of a lender's forbearance offer.

Consider: A borrower says "Hey, I can't make payments for three months, can you help me out?" So the lender says "Yeah, we'll suspend payments for those three months and add them to the principal amount and begin repayment in three months," and the borrower says "Hey, thanks great!" and the lender then after two months sends a notice of default and sues and the borrower defends with "But they promised me..." and trails off in defeat as he realizes the Court of Appeals (staff lawyer) is going to say "Yeah, but you had all that money you otherwise would've had to pay."

See the problem?

The rest of the case was lost because La Barge did, as I said, mess up worse than the lender.  He didn't bring to the trial court's attention a lack-of-standing argument (which likely wouldn't have won as the Board could've just substituted the plaintiff), didn't have his counterclaim properly before the circuit court and so couldn't get a default judgment on it (but he wouldn't have, anyway, he'd have had to move for judgment on the pleadings) and then didn't provide a transcript to the Court so he couldn't prove that the evidence was insufficient to prove his "no revocation of consent to not pay" defense.

The moral? Get a transcript, and hope you get a full appellate panel.

Time for my vacation to go into reruns!

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

 

I don’t, as a rule, like to repeat vacations.  I’ve only got so much time in this world and only so many days of vacation per year, so going BACK to a place I’ve been before seems to me to be not a great idea.

That said, I’ve been to Florida three times in my life and I’m willing to go back, but in this case, I’m going back  *fingers crossed* to visit something very specific… and FOR FREE.

(Two of the greatest words in the English language:  for free.  They work so well as a team!)

What I would go back for is to visit Legoland, and how I would go for free is courtesy of Atlantic, makers of awesome (and awesomely durable) luggage, and their Atlantic Luggage and Legoland Sweepstakes.

Atlantic is, to sum it up, giving away a 2-day vacation for four people to visit Legoland in Florida: two nights, two days, a car voucher, a free set of Atlantic luggage, and you get to meet a Legoland Master Builder.

About that luggage: it’s lightweight. It’s affordable so you can get it even if you don’t win. It comes in all kinds of colors and sizes and styles, so you can get the right mix for your family and your style-conscious wife will appreciate that you look nice on vacation for a change.

But about that prize: Legoland is something I’ve never been to, and I can’t imagine how I missed it: not only is an entire amusement park dedicated to Legos, but it’s got a new waterpark that just opened this year with tube and body slides, a wave pool, and a lazy river where they say you can build your own unique Lego boat and sail it!

If you want to go, go over and enter the sweepstakes yourself.  Then we can race our Lego boats!