RSSCategory: Social justice

Businesses souring on arbitration

May 7, 2012 | By | Reply More
Businesses souring on arbitration

The website Arbitration Nation has reported on the cognitive dissonance experienced by businesses when it comes to arbitration of commercial disputes. Based on a new survey, only 60% of companies arbitrated commercial disputes in 2011, compared to 85% in 1997. Why aren’t businesses clamoring to arbitrate their disputes with other businesses?

The most common reasons given by survey respondents (general counsel and senior corporate lawyers) for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration. The study, conducted through Cornell’s Survey Research Institute, was co-sponsored by Pepperdine’s Straus Institute for Dispute Resolution, Cornell University, and the International Institute for Conflict Prevention & Resolution (CPR). (Its results are not currently available on-line.)

Arbitration Nation noted that while businesses are increasingly avoiding arbitration, the United States Supreme Court is making it more making it increasingly difficult to avoid the application of harsh arbitration contracts. Of course, most of the new court holdings enforcing pre-dispute mandatory arbitration clauses victimize non-businesses, such as consumers, employees and victims of civil rights abuses. Arbitration Nation links to a new article by Thomas Stipanowich that proposes a rating and ranking system for arbitration processes. We already have ample evidence exempt these group from mandatory arbitration. It is palpably clear that big businesses are using mandatory arbitration to take advantage of consumers, employees and victims of civil rights abuses, using their disparate bargaining power. They are using “arbitration” as a method of gaining immunity for their illegal actions. They are doing this, even as they vote with their feet that they don’t like arbitration for themselves.

Instead of gathering more data, we completely carve out consumers, employees and civil rights plaintiffs from being required to arbitrate. Sure, give them the option of arbitrating a case, but only after a dispute has arisen; never force them into mandatory, binding, pre-dispute arbitration. What I have just described is the approach of the Arbitration Fairness Act.

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Mitt Romney earns $21M, pays 13% in taxes

April 12, 2012 | By | 1 Reply More
Mitt Romney earns $21M, pays 13% in taxes

Robert Reich argues that it is grossly unfair that Mitt Romney earns $21M, but pays only 13% in taxes. He argues that many private-equity, hedge-fund, and pension-fund managers are often playing “con games” that screw the American taxpayers. He offers several solutions:

1. Don’t allow private-equity managers to treat their income as capital gains, taxed at 15 percent. Treat this income as ordinary income.

2. Hold them to a “due diligence” standard, so the Pension Guaranty Corporation can claw back bonuses.

3. Raise the capital-gains rate to match the tax rate on ordinary income.

4. Resurrect Glass-Steagall.

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The Other Sides

March 23, 2012 | By | Reply More
The Other Sides

Let’s imagine the conflict known as the Civil War. It had been brewing since before the Constitution was ratified. The issues were marrow deep in American society, so much so that any attempt to address the issue of slavery was, in effect, a deal breaker for the new nation. The South made it abundantly clear that any action on the part of the North to write into the new guiding document the idea that black slaves were somehow deserving of the liberty being claimed for their white owners—and thereby signaling the end of slavery among the Thirteen Colonies—would be met with absolute refusal to play. Had the reformers, exemplified by the likes of Benjamin Franklin, tried to assert any kind of racial equality at the time, the United States would have been stillborn.

Instead, they put a time limit into the document—20 years—which forbade the topic from even being discussed in Congress until that later year, at which time, presumably, the issue would come to the floor for some kind of resolution. History shows that every such attempt was met with denunciations by southern members of Congress and often with threats of secession—which by then were illegal.

Make no mistake, as some revisionists might have you believe, secession was not an option and everyone who voted to ratify the Constitution knew it. Contrary to popular mythology, the original 13 states locked themselves together permanently.

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How a law student could have failed a property law class in 1994

March 10, 2012 | By | Reply More
How a law student could have failed a property law class in 1994

Imagine the following law school exam question asked in a property law class in 1994, prior to securitization, when the laws of Missouri were substantially the same as they are today regarding real estate transaction recording, foreclosures and unlawful detainer proceedings: Joe buys a house from Bank A. Bank A and Joe are about to […]

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End the use of long-term solitary confinement in Illinois!

February 22, 2012 | By | 3 Replies More
End the use of long-term solitary confinement in Illinois!

Hey all. I haven’t been posting since last summer, mostly because I’ve been drowning in graduate school duties. One of these duties has been interning at Chicago’s Cook County Jail. There, I sit in on group therapy sessions for inmates with drug-related offenses. I’ve been consistently touched by the philosophical and psychological depth of these men, their gentleness and the span of their regrets. These are men who will sit down and opine for hours on topics you wouldn’t expect low-SES drug dealers and addicts to have much knowledge of: gender identity is a big topic, for example (these guys live firsthand the consequences of masculinity). And when it comes to living with shame or regret, these guys are almost the best resource you can find.

The only place where you can find more affecting people, I think, is at prisons. I’ve been volunteering for a Chicago-based group called Tamms Year Ten, which advocates for prisoners housed in long-term solitary confinement. I write and read inmates’ letters, respond to their requests for photos and magazines, and read their countless reports of abuse– from medical staff, from Corrections Officers, from mail room staff, and from the state itself.

Let’s be clear on what “long-term” solitary confinement means. These men at Tamms are housed alone for 23-hours a day, with zero human contact, for decades. Some have been locked up alone for 23-28 years.

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What do you call people who lie, cheat and steal?

February 10, 2012 | By | Reply More
What do you call people who lie, cheat and steal?

How do you characterize people who lie, cheat and steal? Well, it all depends on who those people are. If they are poor people who lie on welfare application forms in order to steal food money from the government, they are called criminals and they are subjected to prison time.

If they lie to homeowners in order to steal homes, they are called “banks” who are simply doing “banking,” and they won’t face prison time. I’ve learned from my own law practice over the past few years that it is common for banks to concoct false paperwork, including false affidavits and court filings, when they are trying to foreclose against homeowners. My experience is also the experience of numerous other attorneys who represent home owners.

Now I do need to be clear: No homeowners should have the right to live in their houses for free. On the other hand, no bank should be allowed to kick a homeowner out of his or her house until and unless the bank proves that it is legally entitled to kick the homeowner out of the house, and there are specific rules for how a bank would know whether it would be entitled to kick a family out of a house. In millions of foreclosure cases, however, banks have been making shit up. They are engaged in flagrant robo-signing, they are allowing unauthorized people to sign critically important legal papers, and they are filing this false paperwork in courts from coast to coast. The centerpiece for much of this chaos is a artificial entity called MERS that has been created by the banks to stand in for them whenever convenient and to provide plausible deniability when it is not convenient. I’ve written about MERS previously. This practice of the big banks should stop, and the people doing these things should go to prison (The Missouri Attorney General recently brought a criminal case against an entity that was cranking out fraudulent paperwork). These banks should also be punished by not allowing them to foreclose. Instead, they should be declared to have, at best, unsecured status regarding the home loans they have screwed up, and they should be made to stand in line with all of the other unsecured creditors (e.g., credit card companies and utility companies). This is not a harsh remedy for huge sophisticated entities that are intentionally breaking the law to unfairly assert the extraordinarily harsh legal remedy of foreclosure.

I’m attaching the Complaint recently filed by the New York Attorney General, The People of the State of New York, by Eric T. Schneiderman, Attorney General vs. JP Morgan Chase Bank, Bank of America, Wells Fargo Bank and others. This suit concerns the common practice of America’s biggest banks to concoct MERS to circumvent the proper recording of real estate in the state of New York (this same problem is going on in each other other states too). The end result is that the banks are cheating local government recording offices of substantial fees, and destroying the right to confidently trace property rights in real estate (i.e., The American Dream, i.e., the most expensive thing most people will ever own). In sum, banks have intentionally created a system called MERS that makes sure that transfers of title to real estate are not being properly recorded. It is now the case in many states that one cannot determine who actually has property interests in real estate. This is true for 70 million pieces of property in all 50 states. The New York suit is extremely well written; it provides a detailed look into many of the things that the big banks have done in an attempt to rewrite laws in order to make money unfairly and to screw consumers. I invite all concerned citizens (lawyers and non-lawyers) to read the NY AG’s new lawsuit to see how incredibly corrupt the system has become, thanks to the efforts of big banks.

Next time you are wondering why well-informed people refer to banks as “house-jackers” or “banksters,” consider these allegations by New York’s Attorney General (this is but a small sampling of what you will find in the NY AG’s suit):

20. When the subprime mortgage crisis hit and the number of defaults and foreclosures skyrocketed around the country, the shortcomings of the MERS System and its impact on tracking a property’s chain of title became readily apparent, sparking widespread litigation. The creation and use of the MERS System by Defendant Servicers and other financial institutions have resulted in a wide range of deceptive and illegal practices, particularly with respect to the filing of New York Foreclosure Proceedings in state courts and federal bankruptcy courts.

21. The use of the MERS System, coupled with faulty and sloppy document preparation and execution practices, have resulted in foreclosures being filed against New York homeowners where the foreclosing party lacked the authority or standing to sue. MER members, including Defendant Servicers, have brought over 13,000 foreclosures against New York homeowners naming MERS as the plaintiff/foreclosing party. Indeed, for years MERS affirmatively encouraged its members to file foreclosures in MERS’ name, again based on the rationale that doing so would save banks time and money. However, MERS often lacked standing to foreclose, and representations in court submissions that MERS owned and/or held the promissory note in such proceedings were often false and deceptive.

22. Even when foreclosures were not initiated in MERS’ name. New York Foreclosure Proceedings involving MERS-registered loans often included deceptive submissions. Because MERS Inc. served as the mortgagee of record, the foreclosing party needed to be assigned the mortgage before filing the proceeding to have standing. In many instances, this assignment was not properly made. MERS certifying officers, including Defendant Servicers’ employees and agents, have executed and submitted to court MERS mortgage assignments that contain many defects, including affirmative misrepresentations of fact, which render them false, deceptive, and/or invalid. These assignments were often automatically generated and “robosigned” by individuals who did not review the underlying property ownership records, confirm the document’s accuracy, or even read the document. These false and defective assignments have often masked gaps in the chain of title and the foreclosing party’s inability to establish its authority to foreclose, and as a result have misled homeowners and the courts.

23. Although there are several New York court decisions finding that foreclosing parties lacked standing, the issue of standing is rarely raised and litigated because most homeowners lack counsel and are unfamiliar with MERS’ precise role in their loan. Indeed, a significant percentage of foreclosure actions result in default judgments.

24. In addition, MERS’ indiscriminate use of non-employee certifying officers has confused, misled, and deceived homeowners and the courts and made it even more difficult to ascertain whether a foreclosing party actually owns or holds the note and mortgage to have standing to foreclose. MERS certifying officers, including Defendant Servicers’ employees and agents, have routinely executed and submitted in court mortgage assignments and other legal documents on behalf of MERS without disclosing that they are not MERS employees, but instead are employed by other entities, such as the mortgage servicer that filed the case or its counsel. As a further complication, the same MERS certifying officer might execute multiple documents on behalf of different parties in a single proceeding.

25. In short, MERS’ conduct, as well as Defendants Servicers’ use of the MERS have resulted in the filing of improper New York Foreclosure Proceedings, undermined the integrity of the judicial process, created confusion and uncertainty concerning property ownership interests, and potentially created clouds of title on properties throughout the State of New York.

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Stepping Up Finally

February 4, 2012 | By | Reply More
Stepping Up Finally

I’ve been hesitant to write anything about the Susan G. Komen fiasco. Not for fear of invoking controversy, but because things started unraveling so fast it was difficult to know when it would play out. Here is a handy overview of the series of events. The position taken by the Komen charity group shifted, mutated, and reeled in the sudden upwelling of negative response, that on any given day whatever I might have said would be irrelevant the next morning.

One aspect, however, strikes me as significant. That response. It came swiftly and it came from all quarters and it came with cash. I cannot recall a similar response happening so swiftly and so decisively in this ongoing struggle over abortion rights. One of the most annoying things about being progressive and/or liberal is the tepidity with which we meet challenges. It would appear that all of us who espouse a progressive view, when it gets down to the nitty gritty of political position-taking and infighting, have feet not even of clay but of silly putty. It is actually heartening to see an abrupt and united response that is categorically decisive for once.

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Proposed Massachusetts law would require corporate responsibility

January 18, 2012 | By | Reply More
Proposed Massachusetts law would require corporate responsibility

A new law affecting Massachusetts corporations has been proposed to require corporations to be more than money-makers:

The Code for Corporate Citizenship (the “Code”) would amend Section 8,30 (a)(3) of the Massachusetts Business Corporations Act which now requires corporate directors only to act “in a manner the director reasonably believes to be in the best interests of the corporation.” The Code will change this duty to add 28 words, “but not at the expense of the environment, human rights, public health and safety, dignity of employees and the welfare of the communities in which the coproration operates.”

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Anatomy of a foreclosure case

January 18, 2012 | By | Reply More
Anatomy of a foreclosure case

Consider this description of a Florida foreclosure docket by the Orlando Sentinel:

Most of the borrowers — maybe 95 percent — don’t have representation,” said dispute-resolution expert Sandra Upchurch, who administered the state foreclosure mediation in Volusia County courts. “Many made bad decisions, and some loans have legitimate problems. But if borrowers have no lawyers, the cases aren’t being argued. And those cases are going to get opened and closed in 30 seconds, and those buyers don’t have a chance.

If you don’t believe this, go visit your own state’s foreclosure docket–except, wait! Most states have non-judicial foreclosure. They don’t even require a judge to review foreclosure sales. And this is in the context of a system where most home loans have seriously defective paperwork. These are numerous cases out there where a good lawyer can successfully fight off the foreclosure, yet 95% of foreclosed homeowners don’t have lawyers.

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