Friday, December 3, 2010

Mortgage Rates Rise

The tracking firm reported that the benchmark conforming 30-year fixed mortgage rate rose to 4.71 percent (0.36 point) this week. That’s up pretty significantly from 4.58 percent reported by the company last week.

The average 15-year fixed mortgage increased from 3.97 percent to 4.07 percent (0.35 point) in Bankrate’s study. The larger jumbo 30-year fixed rate jumped as well, settling at 5.29 percent.

Bankrate also documented a rise in adjustable rate mortgages, with the average 5-year ARM climbing to 3.74 percent and the average 7-year ARM jumping to 4.08 percent.

Bankrate says the November unemployment report due out on Friday could be the catalyst for the next move in mortgage rates, with evidence of solid private-sector job growth fuel for higher rates.

Thursday, December 2, 2010

Cool BK Site for Research

Thanks to Professor Robert Lawless of the University of Illinois College of Law, also of the Credit Slips blog, you can now save yourself from combing through dusty old books to find the language of Bankruptcy Code provisions going back as far as 1980. Need to find how Section 547 was worded prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"), or interested in tracing the evolution of exceptions to the automatic stay of Section 362? Then navigate over to the BankrLaw Project site. Once there, select a date and the site will provide you with the Bankruptcy Code in effect at that time, free of charge. This promises to be a very useful research tool when the text of older Bankruptcy Code provisions is in issue.

Senior in Debt

More than half of those surveyed had saved less than $50,000 — and many of that group said they'd saved absolutely nothing — yet they retired anyway. Just 4% said they had delayed their retirement due to debt.

"They get to a certain age and they feel privileged," Ellington said. "They say, 'I'm going to go on that trip even though I have to put it on my credit card.'"

When you're young, you have time to pay off splurges like a trip to Hawaii, but for retirees, procrastination can lead to serious financial problems.

It's not just vacations and entertainment; one of the biggest sources of senior debt is medical expenses. More than 75% of the seniors surveyed said they went into debt for medical or funeral expenses.

Part of the reason they're not paying off their debts is they don't know where to start and they're too embarrassed to ask for help. But the financial crisis may have also played a role.

"Financial institutions haven't been perceived as the most friendly" and many people blame them for the recession, Ellington said. "They think, 'Hey, I'm not going to pay back these guys who ripped off America.'"

One of the biggest mistakes seniors make when it comes to credit cards is being late with a payment.

"That triggers a penalty APR that can exceed 30%, which can trap those seniors who can't pay their balances in full each month in a downward spiral of debt," said Ben Woolsey, the director of marketing and consumer research at

And while many retirees who are being quietly buried under a mound of debt may think they're protecting their kids by not burdening them with their financial problems, if they don't pay off their debts before they die, it will eventually become their children's burden.

Whatever that parent owes will be deducted from his or her estate before that estate is divided among the children and other beneficiaries.

Imagine a scenario where the kids are bickering over who gets mom's house and, in the end, no one gets it because it had to be sold to pay off mom's credit-card debt.

"That is a very realistic scenario," Ellington said. "A lot of kids don't find out how much their parents are struggling until they pass away."

Unfortunately, this debt denial isn't exclusive to seniors: Among those surveyed who had not yet retired, 25% said they were carrying debt of $5,000 or more — yet more than half said they didn't plan to delay retiring because of debt.

And more than one in four said they weren't worried about paying off their debt in their lifetime.

Another mistake they make is relying on debt-settlement companies when they get into trouble.

"It's much better to contact card companies directly to work out repayment plans or work with a non-profit debt-counseling service rather than a fee-based settlement company," Woolsey said.

Or declare BANKRUPTCY.

Screening Recruits the Goldman Way

Since the bank's vetting process is notorious for rigor, ambitious lawyers can only benefit by prepping (maybe over-prepping) the Goldman way. Here are some tidbits from the Goldman video:

First, the Dos:

1. Make a list of your qualificatons--academic and work experiences. Goldman's favorite buzz terms are "team orientation," "leadership potential," "problem-solving," and "creativity." Law firms like creative problem-solvers (translation: good legal researchers), but I'm not so sure about the leader stuff.

2. Create a narrative about why you are applying for a particular job or firm. Example: "I've had a fascination with hostile takeovers since childhood, and keep an active scrapbook of Marty Lipton.

3. Practice your talking points and memorize the names of the interviewers (assuming you know beforehand).

4. Develop a conversational, confident tone. This requires practice--if not an acting coach; it's not easy bragging about yourself in a nonbragging way.

And now for the Don'ts:

1. Don't come off being clueless as to why you are interviewing for the job.

2. Don't ask about mundane things like money and benefits. The mantra is to snag the offer, then ask about what you really care about later.

3. Don't get lost on the way to the interview. Studying the subway map ten minutes before your appointment is not advisable.

4. Don't send a thank-you letter by mail (too slow) or call (too awkward). But do send a thank-you e-mail.

What really makes a Goldman interview the gold standard are the "competency" questions that it throws at interviewees. The video says the idea behind a "behavioral" or "case studies" interview is to see how candidates solve problems. Take this question: "How many manhole covers are there in New York City?" The video says you could multiply 12 avenues by 150 streets to get 1,800 manhole covers. That answer "may or may not be correct," says the video, but it demonstrates "an approach."

As you might know, there's talk that law firms will eventually adopt some of these screening tools to weed out applicants. So perhaps it's a good time to practice explaining the rule against perpetuities.

Thanks Vivia Chen

Full Body Scanners.

I'd rather be patted down and go through a metal dector!

Full Body Scanners.

I'd rather be patted down and go through a metal dector!

Congress Considers Change to 'Red Flags Rule'

The American Bar Association has been battling for more than a year to exempt lawyers from new regulations designed to fight identity theft. Now, Congress has decided to step in.

With no fanfare and no recorded vote late Tuesday, the Senate approved legislation that could accomplish what the ABA was hoping to achieve. The bill would narrow the definition of “creditor” under the Fair and Accurate Credit Transition Act of 2003, likely ensuring that lawyers would not meet the new definition.

An ABA spokeswoman said the group is optimistic about House passage, possibly this week.

The regulations over identity theft were written by the Federal Trade Commission, and they’re popularly known as the “Red Flags Rule.” FTC regulators have interpreted the term “creditor” to include those who perform services and get paid at a later date, as many lawyers do. Other professional groups, including accountants and physicians, have protested their inclusion, too.

The bill, S. 3987, would define a creditor largely as someone who uses credit reports, furnishes information to credit reporting agencies or “advances funds…based on an obligation of the person to repay the funds or repayable from specific property pledges by or on behalf of the person.”

Sen. John Thune (R-S.D.) introduced the bill Tuesday with Sen. Mark Begich (D-Alaska) as a co-sponsor. In a prepared statement, they said the FTC was threatening small businesses.

“Small businesses in South Dakota and across our country are the engines of job growth for America,” Thune said. “Forcing them to comply with misdirected and costly federal regulations included in the FTC Red Flags Rule will hurt their ability to create jobs and continue growing our economy.”

ABA President Stephen Zack said in a prepared statement: “Last night’s Senate vote to clarify the rule so that lawyers are clearly not included was a critical step in ending a bureaucratic effort to solve a non-existent problem with paper-pushing regulations that would have increased legal costs.”

The fight over the Red Flags Rule has also played out in court after the ABA sued the FTC. In October 2009, U.S. District Judge Reggie Walton of the District of Columbia ruled in favor of the ABA. The U.S. Court of Appeals for the D.C. Circuit heard the FTC’s appeal last month.

In a recent interview with The National Law Journal, FTC Chairman Jon Leibowitz said the commission was trying to work with Congress to make the law clear. With the 2003 law, he said, “Congress didn’t give either side a lot to work with here.”

An FTC spokesman had no comment today.


Wednesday, December 1, 2010

Attorney Defends Taking On Mortgages as Contingency Fee

Defaulted Borrowers File Lawsuit Against Wells Fargo

The law firm of Harwood Feffer, LLP has filed a class action lawsuit against Wells Fargo Bank and its servicer, America's Servicing Company (ASC). The suit alleges that ASC induced borrowers to default on their mortgages by telling them they would not be eligible for a loan modification if they were current on payments. Harwood Feffer claims ASC was looking to boost its revenue by assessing additional penalties and fees and collecting interest on the nonperforming loans it services.

No Private Right of Action for Creditor’s Disclosure of Social Security Number

Recently, in Matthys v. Green Tree Servicing, LLC (In re Matthys), 2010 WL 2176086 (Bankr. S.D. Ind. 2010), a bankruptcy court held that a debtor does not have a private right of action against the creditor who listed the debtor’s full social security number on its proof of claim. This holding is consistent with what the majority of courts have held in similar cases. While the joint debtors in Matthys sought relief under various statutes, including Bankruptcy Code sections 105 and 107, the court found that no private right of action existed.

In Matthys, the debtors listed its lender as a secured creditor in their schedules. The lender’s servicing agent included the debtors’ full social security numbers when it filed an electronic proof of claim. The court granted the debtor’s Rule 9037 motion and removed the proof of claim from public access on PACER. Next, the debtors brought an adversary proceeding against the servicing agent seeking damages for violating several statutes, including Bankruptcy Code section 107, The Gramm-Leach-Bliley Financial Modernization Act, Federal Rule of Civil Procedure 5.2, Federal Rule of Bankruptcy Procedure 9037, and various tort claims such as invasion of privacy, negligent or intentional infliction of emotional distress, and negligence. The court, however, found no private right of action existed under the Bankruptcy Code or any other statute. However, the court did send the complaint for contempt to trial, since the court, but not the debtors, has the power to do so. Section 105(a) provides that bankruptcy courts “may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” The Matthys court concluded that it only had the power to hold the creditor in contempt, because the broad power under section 105 “is not limitless and . . . does not create a private right of action.” The court stressed that while a private right of action can be expressed or implied in a statute, courts are unwilling to go against congressional intent when searching for such a right.

Although several courts agree with the Matthys analysis, other courts do find that a private right of action exists under section 105(a). See In re Gregg, 428 B.R. 345 (Bankr. D.S.C. 2009); In re Killian, 2009 WL 2927950 (Bankr. D.S.C. July 23, 2009). For example, in McKenzie v. Biloxi Internal Medicine Clinic (In re McKenzie), 2010 WL 917262 (Bankr. S.D. Miss. March 10, 2010), the court held that it had the authority to compensate a debtor under section 105(a). McKenzie addressed similar facts to Matthys. The McKenzie court justified its decision by citing several rare cases where section 105 was used to compensate the complainant, typically for actual damages and attorney’s fees.

In re Matthys raises many concerns, both for debtors and creditors. Some courts do recognize a private right of action. Even if a debtor has no private right of action, the courts may still hold creditors in contempt under section 105. Thus, courts can and do hold creditors liable for violating Rule 9037.

Tuesday, November 30, 2010

Abandoned Foreclosures

GAO estimated that the number of abandoned foreclosures that occurred in the United States between January 2008 and March 2010 was between 14,500 and 34,600 — representing less than 1 percent of vacant homes.

The study revealed that 20 specific areas of the country accounted for 61 percent of the estimated “bank walkaway” cases, with certain cities in Michigan, Ohio, and Florida experiencing the most occurrences. Detroit topped the list.

GAO also found that abandoned foreclosures most frequently involved loans to borrowers with lower quality credit, or nonprime loans, and low-value properties in economically distressed areas.

The decision to forego foreclosure typically hinges on how much the lender expects to bring in from the subsequent sale of the repossessed property. However, GAO says it found that most of the servicers interviewed were not always obtaining updated property valuations before initiating foreclosure.
Vacant homes associated with abandoned foreclosures can contribute to increased crime and decreased neighborhood property values, the agency notes. Abandoned foreclosures also increase costs for local governments that must maintain or demolish the homes.

GAO learned that because servicers are not required to notify borrowers and communities when they decide to abandon a foreclosure, homeowners are sometimes unaware that they still own the home and are responsible for paying the debt and taxes and maintaining the property. Communities are also delayed in taking action to mitigate the effects of a vacant property.


As of September 30, Fannie Mae’s inventory of single-family REO properties stood at 166,787. Freddie Mac’s REO inventory totaled 74,897 homes at the end of September. Together, the two GSEs hold about a quarter of all bank-owned residential properties in the United States.

Monday, November 29, 2010

Stern Sued by Former Employees





and on behalf of all other similarly situated individuals,

DJSP ENTERPRISES, INC., a Florida Corporation, DJSP
ENTERPRISES, INC., a British Virgin Islands Company,
DAVID J. STERN, individually,





Plaintiffs Renae Mowat, Nikki Mack, Arklynn Rahming, and Quenna Humphrey individually and on behalf of all others similarly situated, for their Complaint against Defendants, DJSP Enterprises, Inc., a Florida corporation, DJSP Enterprises, Inc., a British Virgin Islands Company, (collectively hereinafter referred to as “DJSP”), Law Offices of David J. Stern, P.A., (“Stern, P.A.”) and David J. Stern (“Stern”) state as follows:


1) Plaintiffs bring this action on behalf of themselves and other similarly situated former employees who worked for the Defendants in Plantation, Florida and who were terminated as a consequence of mass layoffs by the Defendants beginning on September 23, 2010 and who were not provided sixty (60) days advance written notice of the mass layoffs by Defendants as required by the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq.

(“WARN Act”).

2) Plaintiffs and all similarly situated employees seek to recover back pay for each day of WARN Act violation and benefits under 29 U.S.C. § 2104.

3) This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1334 and 1367, as well as 29 U.S.C. §§ 2102, 2104(a)(5).

4) Venue over this matter is appropriate in this Court pursuant to 29 U.S.C. 2104(a)(5) because the acts constituting the violation of the WARN Act occurred, and the claims arose in this district. Venue is also proper under 28 U.S.C. §1391(a) and (b). The acts complained of occurred in the State of Florida and, at all relevant times, material hereto, the Defendants conducted business with and through the other named Defendants who also conducted business with and through the other Defendants and their subsidiaries and the named individual Defendant, David J. Stern, resides in this judicial district, and all of or a substantial part of the events or omissions giving rise to this action occurred in this judicial district.

Bankruptcy Judge Sanctions Lawyer for $110,000 , Warns About Being ‘Sequaciously

ABA Journal

A Nevada bankruptcy judge has sanctioned a lawyer $110,000 in legal fees for being too trusting. A lawyer for one of the owners of the Blue Pine Group told lawyer David Winterton that all of the corporate directors had passed a resolution authorizing a bankruptcy filing. Winterton believed the lawyer—and that was his mistake, according to U.S. Bankruptcy Judge Bruce Markell in his opinion. The Las Vegas Review-Journal has the story.

Community-Caretaker Doctrine Doesn't Allow Home Search, Third Circuit Says

By Charles Toutant
New Jersey Law Journal
November 23, 2010

Police can't make a warrantless entry into a home in the guise of community caretakers, the Third U.S. Circuit Court of Appeals ruled Tuesday in a groundbreaking case.

Limiting a doctrine often used to justify automobile searches, the court said that "in the context of the search of a home, it does not override the warrant requirement of the Fourth Amendment or the carefully crafted and well-recognized exceptions to that requirement."

The court, in Ray v. Township of Warren, 09-4353, nevertheless upheld summary judgment dismissing a civil rights suit against Warren Township, its police department and two officers based on qualified immunity.

The court said it reached its conclusion given the reasonableness of the officers' actions and a split among judicial circuits on applicability of the community-caretaker doctrine to home searches.

On June 17, 2005, Theresa Ray went to the home of her estranged husband, Lawrence Ray, to pick up the couple's 5-year-old daughter for court-ordered visitation. Theresa thought she saw a man inside, but no one answered the bell. She called the police, who entered the home through an unlocked door. They found Ray's father inside, sleeping. Ray and his daughter were not home.

When Ray sued, the police raised as a defense that they were engaged at the time in community caretaking — usually defined as protecting public safety, aiding people in distress, combating hazards and preventing potential ones.

The U.S. Supreme Court, in Cady v. Dombrowski, 413 U.S. 433 (1973), held that police engaged in community caretaking could make a warrantless search of a car, for protective purposes, to locate a gun that was missing from a police officer.

Since then, state and federal courts have come to different conclusions on the extent of the doctrine. The circuit courts of appeal are split, with the Seventh, Ninth and 10th circuits holding that it applies only to vehicle searches and the Sixth and Eighth extending it to homes.

In Ray's case, U.S. District Court Judge Joel Pisano granted the township summary judgment based on qualified immunity, without addressing whether the community-caretaker function justified the officers' actions.

On Ray's appeal, the Third Circuit affirmed the qualified immunity ruling but said it was time to draw the line on use of the doctrine to justify home searches.

Circuit Judges Kent Jordan, Anthony Scirica and Julio Fuentes said the Supreme Court, in the Cady case, "expressly distinguished automobile searches from searches of a home, saying that a search of a vehicle may be reasonable 'although the result might be the opposite in the search of a home.'"

The sanctity of the home is a deeply embedded tradition and preventing physical entry of it is the chief purpose of the Fourth Amendment, they added.

But the judges also said that given the unsettled state of the law at the time Ray's home was entered, the officers were not on notice that their conduct was against the law. "Until our decision in this case, the question of whether the community caretaking doctrine could justify entry into a home was unanswered in our circuit," the panel said.

"Given the conflicting precedents on this issue from other circuits, we cannot say it would have been apparent to an objectively reasonable officer that entry into Ray's home … was a violation of the law," they added.

The attorney for the police, Juan Fernandez of O'Toole Fernandez Weiner Van Lieu in Verona, says the court's interpretation of the doctrine will have a "huge" impact on law enforcement. He calls the ruling a dual-edged sword: "We win the case, but we have to tell our clients [that] what they did they can't do in this circumstance," he says.

One of Ray's lawyers, Paul Levinson of McLaughlin & Stern in New York, says, "The one positive that came out of the decision is that the case will stand in the Third Circuit for the proposition that the community-caretaking doctrine cannot be used to justify warrantless searches of a home. It's unfortunate that they didn't take the next step and determine that this case warranted a trial."

Michael Gilberti of Red Bank's Epstein & Gilbert also represented Ray.

Last year, the New Jersey Supreme Court extended the community-caretaker doctrine to homes, ruling in State v. Bogan , 200 N.J. 61 (2009), that police investigating an alleged sexual assault properly entered an apartment, questioned a boy who answered the door and then questioned the defendant, who was lying in an interior bedroom.

Though the questioning of Anthony Bogan led to his arrest and eventual conviction, the Court found the warrantless entry and questioning sufficiently separate from the criminal investigation to invoke the caretaker doctrine.

"So long as the police had an independent basis for entering the apartment under the community caretaking exception that was not a pretext for carrying out an investigatory search, we can find no bar under Cady or under our federal and state constitutions for the police actions in this case," the Court said.

U.S. Trustees Taking on Banks in Foreclosure Mess

The U.S. Trustee Program is stepping up its scrutiny of the veracity of banks' foreclosure claims against borrowers, the New York Times reported yesterday. After examining their foreclosure practices for flaws in mortgage documentation and other procedures, many of the nation’s largest banks have resumed - or will soon resume - trying to evict defaulted borrowers. JPMorgan Chase, for example, told investors this month that it had extensively reviewed its foreclosure controls, trained personnel in the unit and started new procedures to ensure that all legal requirements would be met when it moves to seize a property in default. While banks may have booted a few robo-signers and tightened up some lax procedures, one question at the heart of the foreclosure mess refuses to go away: whether institutions trying to take back a property can prove they even have the right to foreclose at all. Trustees in other parts of the country have intervened in borrower cases, but many of these actions have been related to questionable foreclosure fees or to dubious legal or documentation practices. The shift to a broader focus on the issue of standing suggests that the courts may no longer accept at face value the banks? arguments that they have the right to foreclose or represent the institution that does.