Ohio Supreme Court Upholds Foreclosure Checks and Balances

jerrykaltenbach 1 Comment

They don't call it the burden of proof for nothing...

Back on January 31, 2011, I wrote about a group of foreclosure lawyers who filed a complaint against three Franklin County Common Pleas Judges (John Bender, Kimberly Cocroft, and Guy Reece) over an Order they signed requiring foreclosure lawyers to sign a certification on behalf of their clients – the foreclosing bank.

In a nutshell, the certification requires the foreclosing lawyer to verify certain facts, including that the foreclosing bank is the proper party and that it holds the original note and mortgage before it can obtain a judgment to take away a home.

The Franklin County Prosecutor’s Office (the lawyer for all County employees in their official capacity) filed a Motion to dismiss the Complaint and the Ohio Supreme Court granted that motion yesterday without any findings of fact or conclusions of law.  The Court’s decision was unanimous among the seven Ohio Supreme Court Justices:

Chief Justice Maureen O’Connor, and Justices Paul Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert Cupp, and Yvette McGee Brown.

John Futty from The Columbus Dispatch wrote today:

State attorneys general across the nation, including then-Ohio Attorney General Richard Cordray, announced in October that they were investigating fraudulent foreclosure filings. Some law firms and major lenders were using so-called “robo-signers” to complete affidavits on foreclosures without reading the documents or verifying ownership of the mortgage notes.

In late November, the three Franklin County judges began telling all lawyers who file residential foreclosure cases in their courtrooms that they must “personally certify the authenticity and accuracy of all documents” in support of the filings. If a lawyer doesn’t, the judge will not grant a motion for default or summary judgment, but will instead schedule the case for trial.

Setting a foreclosure for trial can delay the case for a year or more. However, in its motion to dismiss the lawyers’ complaint, the prosecutor’s office argued that a trial date provides a “remedy” for those who object to verifying their clients’ documents.

“The fact that the trial will delay matters does not change the fact that it is an adequate remedy,” wrote Assistant Prosecutor Patrick Piccininni. “Any issues of authentication of documents and proof can be settled at that stage.”

Personally, I think the Judges are fully within their discretion to order foreclosure attorneys to verify their cases.  Most foreclosures are pushed through the courts unopposed and as fast as possible.  Mistakes are made and big banks take advantage of the volume of cases and overload on the judges to skirt the rules to their benefit.  Thanks Judges, for watching out for the homeowners in these economic times.

Tressel, the Tattoo guy, and Cicero. The attorney-client perspective.

jerrykaltenbach 1 Comment

Due to suspensions, this many Buckeyes will be missing for some games this fall.

The Columbus Dispatch revealed today that Columbus lawyer Christopher T. Cicero was the “unnamed attorney” that sent e-mails to Ohio State football coach Jim Tressel starting in April 2010 warning that some players were giving away signed memorabilia in exchange for tattoos from a parlor owner, Edward Rife, who happened to be the subject of a federal drug trafficking investigation.

The revelation, which was scooped by Yahoo Sports, led to Ohio State’s self-report to the NCAA and a 2-game suspension for Tressel coupled with a $250,000 fine.

Copies of Ohio State’s March 8, 2011, letter to Julie Roe Lach, the Director of Enforcement Services at the NCAA, that includes the emails between Coach Jim Tressel and, apparently, Christopher T. Cicero can be read by clicking here: OSU’s Report including the Tressel emails.

The Dispatch reports that “Cicero, a lawyer with a checkered past [] represented the tattoo-parlor owner, Edward Rife, in 2003 when Rife was a key witness in a murder trial.”

I have no personal knowledge  of any of these facts.  I’m just reading the paper and internet articles, just like you.  However, if the reports are accurate and Cicero did send the emails to Tressel, some of Cicero’s content is troubling from the lawyer’s perspective.  Cicero had an attorney-client relationship with Rife in 2003.  While it is unclear from the emails whether there is a current and formal representation of Rife by Cicero, our rules of professional conduct state that a, “lawyer who has formerly represetend a client in a matter…shall not…use information relating to the representation to the disadvantage of the former client except as these rules would permit…or…reveal information relating to the representation except as these rules would permit.”

In one of the emails, Cicero tells Tressel that he had Rife “in my office for an hour and a half last night.”  Then, Cicero goes on to discuss the substance of his meeting with Rife held in his law office.  I have never met Mr. Cicero.  I have never met Mr. Rife.  I have no idea what the substance of the conversations were other than what the email to Jim Tressel recounts, but I do know that our rules of professional conduct state that “a lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney client privilege under applicable law, unless the client gives informed consent….”

I have no idea what motivated Christopher Cicero to send the emails to Tressel, if he did.  But, I do know that the content of the emails from an attorney about his own client is troubling.

One of my biggest pet peeves is reading commentary, stories, facebook status updates, or hearing coffee shop talk from people with sharp opinions when they are barely informed of all of the facts to arrive at their conclusions.  With that in mind, I reiterate that the Columbus Dispatch article this morning contains no admission by Cicero that he authored the emails.  Also, I have no personal knowledge of what transpired in the meeting between “the lawyer” and Rife discussed in the emails, or whether the two were meeting as friends or if it was a client meeting with his lawyer to discuss a problem.  I simply have a hunch, perhaps an educated hunch, that this issue is long from over for any lawyer that was in this position.

Foreclosure filings, lawyers ordered to cross T’s, dot I’s.

jerrykaltenbach 3 Comments

Receiving foreclosure notices and cannot afford an attorney? Contact the Save the Dream Ohio Foreclosure Prevention Effort: 888-404-4674

I read John Futty‘s article in The Dispatch this morning about the Order of three Franklin County judges requiring lawyers to verify that all of the documents in residential foreclosure actions are valid.  This comes in response to a national outcry over fraudulent foreclosure filings.  Futty writes: “Six of the lawyers affected by the order are fighting back. They have asked the Ohio Supreme Court to prohibit the judges from requiring them to sign “certifications” on behalf of their clients.”

Common Pleas Judges John F. Bender, Kimberly Cocroft and Guy Reece have issued this Order and are the subject of the suit.  Apparently, Judges Laurel Beatty and David Fais were ready to issue the same Order, but are waiting to see the outcome of the suit.

Cleveland attorney John C. Greiner is representing the six lawyers that filed the lawsuit that, according to Futty’s article, claims the Order will require them to divulge confidential attorney-client privileged information.

What I find interesting is that a Cleveland lawyer, Greiner, is bringing this suit when his home County of Cuyahoga has required foreclosing attorneys to sign a “Certificate of Readiness” since at least 2004.

And, really, what’s the problem with the Certificate of Readiness?  I’m not sure what the Franklin County Judges are ordering, but I imagine it is something similar to Cuyahoga County’s Certificate of Readiness.  If it is, no privileged information is sought and, instead, it is more like having to turn in your High School algebra homework where you have to “show you work” – proving that you applied the correct equations to reach your answer.

If you haven’t gathered this already, I have not read the Franklin County Judge’s Order.  This post is simply a reacton to John Futty’s article from the perspective of a lawyer who knows this system well.

At the end of the day, there are two lessons to be learned.  (1)  Lawyers should check their work and the current economic climate and “factory produced foreclosures” give credence to the Order and, (2) Administrative Judge Charles C. Schneider is right that the Order is redundant because Civil Rule 11 already requires lawyers to check their work.  The fact that the two lessons oppose one another begs the question: if all foreclosure attorneys are checking their work, then why does Cuyahoga County have the Certificate of Readiness and why are Franklin County Judges creating their own Orders on this topic?

You can read John Futty’s article, here, and you can consider whether the foreclosure process is spinning out of control.

Supreme Court OK’s Judge’s use of facebook / twitter

jerrykaltenbach

You can "like" me now!

On December 3, 2010, the Ohio Supreme Court’s Board of Commissioners on Grievances & Discipline issued an advisory opinion saying that Ohio Judges can have facebook friends and twitter followers that are also attorneys appearing before them in Court.  The Supreme Court’s website issued this release:

In one of the most comprehensive and detailed examinations in the nation, the Supreme Court of Ohio’s disciplinary board has issued an advisory opinion examining the ethical implications of judges using social media sites like Facebook and Twitter.

The opinion from the Board of Commissioners on Grievances & Discipline advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.

“This is a topic of great interest to the legal community because, like the rest of the nation, more judges are experimenting with social media in both their personal and professional lives,” said Jon Marshall, the board’s secretary. “For those judges who choose to use this technology, we hope this opinion gives them practical guidance on how to do so and maintain their obligations under the Code of Judicial Conduct.”

A recent national study found that 40 percent of judges report using social media profile sites like Facebook and LinkedIn, a proportion roughly equal to that in the general U.S. adult population. Smaller numbers reported using microblogging sites like Twitter and other less popular social media, but the numbers are expected to grow.

Opinion 2010-7 finds that a judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but cautions: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.”

Some very logical restrictions include that (1) a  judge may not give anyone legal advice through social media sites, (2) judges may not comment on matters pending before the judge, and (3) judges cannot communicate with an attorney appearing before the judge about the matter.  The advisory opinion goes on to say that a judge should disqualify herself from a proceeding if her social media relationship with a lawyer on that case creates bias or prejudice.  All very fair rules and it demonstrates the pervasive qualities of social media and that, like it or not, it is here to stay.

You can find the entire advisory opinion here.

First Amendment, Middle Finger. It’s all protected speech.

jerrykaltenbach

This Amendment is Number One! See...?

An Oregon man flips off some cops.  They stop him.  Then, he does it again.  They stop him again.  The man then sues claiming the cops harassed him by stopping him while engaged in free speech.  The case settles without a trial paying the man $4,000.00.  Protected speech?  Certainly.  Ridiculous plaintiff?  Most probably.

I agree that making a certain infamous hand gesture is free speech.  Shoot, any hand gesture is probably protected as free speech by the First Amendment to the Constitution.  But for Robert Ekas, I do not think the constitutional question is at issue so much as the personal conduct/gentlemanly behavior issue.  Why flip off a bunch of Sheriff’s deputies?  What’s the point?  My guess is that it was just a way to get national attention including an appearance on The Colbert Report.

Personally, I think Mr. Ekas’ victory (if you can call it that) should be widely celebrated by giving Mr. Ekas the very free speech he holds so dear.  So when you see Robert Ekas, make sure to extend your favorite hand, extend that hand’s middle finger, and let us all celebrate what our Founding Fathers must have truly intended with the First Amendment.  Let us direct that speech squarely at the man that fought so hard to protect it by taking a $4,000.00 settlement and running rather than trying to establish legal precedent that the “cop flip-off” is protected free speech.  That’s definitely the forthright man’s way through the case.  (Readers, I hope you’re picking up the sarcasm, because I’m laying it on pretty thick here). Continue reading →

What the heck is habeus corpus?

jerrykaltenbach

Correctly pronounce habeus corpus ad subjiciendum and you can have this card.

It’s not a dead body or something you can pick up from touching raw chicken.  People have asked me this question several times over the years.  They have seen the term in newspapers, on TV news, and have probably even seen William Shatner shouting about it on Boston Legal reruns.  It’s Latin, it sounds funny, and it doesn’t make much sense.

In Latin, habeus corpus means “you have the body.”  A writ of habeus corpus is a written judicial order to bring a party before a judge or court.  99% of the time, the writ is used to seek release from unlawful imprisonment.

The complete name for the order to release someone from unlawful imprisonment is habeus corpus ad subjiciendum, which is the Latin equivalent for Monopoly’s get out of jail free card.  (Just kidding, it truly is a serious matter).

Unfortunately, in our justice system, there are people that have been jailed and later proven innocent.  A writ of habeus corpus is the process by which the legality of someone’s imprisonment is tested.  For a recent example of great work by a Columbus attorney that saved death row inmate, Kevin Keith, from execution, read this.  After obtaining clemency from execution from Governor Ted Strickland, Rachel Troutman is now trying to get her client released from prison.  A writ of habeus corpus will start the way.

JK-Q&A: Do I have to trim my tree because my neighbor says so?

jerrykaltenbach 1 Comment

A friend contacted me with this question:

What was that? Ahh, just the panic alarm on the new caddy. I'm sure it's fine.

I have a weeping willow in my back yard and some of the branches hang over my neighbor’s fence, and he told my wife yesterday that we need to pay someone to trim the tree to prevent the braches from falling in his yard and supposedly killing his grass. My question is, do I by law have to trim the tree at my expense?

The short answer is NO.  In this situation, my friend is not legally obligated to trim his tree.  But, it is important to know some of the consequences of doing nothing.

1.  The neighbor has a right to protect and enjoy his own property.  At the same time, the neighbor has no right to encroach on my friend’s property.  Section I, Article I of the Ohio Constitution provides that : “All men are, by nature free and independent and have certain inalienable rights, [including] acquiring, possessing and protecting property…” This Article (and ample Ohio case law), provides that the neighbor may undertake reasonable  steps to protect his property or exclude others from its use and enjoyment.

What does that mean?  The neighbor might grab a pruner and go to town trimming the tree himself!  But, he needs to be cautious.  The neighbor is only within his rights to trim the branches that physically extend onto his property and the neighbor cannot kill or cripple the tree.  A neighbor exercising reasonable care and only cutting back the branches that cross onto his property is probably safe.   My friend may be left with a lopsided tree, but he didn’t have to do the work or pay anyone.

If the neighbor cuts a branch (or even a part of a branch) that is over my friend’s property, the neighbor may be guilty of a fourth degree misdemeanor pursuant to Ohio Revised Code 901.51 and 901.99, and would owe my friend double the amount of damages in a civil claim, such as the replacement cost of the tree x2. Continue reading →

Thomas Parenteau could not save himself – surprised?

jerrykaltenbach 4 Comments

"Fee-fi-fo fum," benching your lawyer is pretty dumb.

Back in June, I wrote this post about the Thomas Parenteau trial where Parenteau (not a lawyer) was representing himself against 13 federal charges in a multi-million dollar fraud scam.  I discussed what a bad idea that was.  As it turns out, the jury convicted Parenteau of 11 of the 13 charges against him.  Parenteau was acquitted of two money-laundering charges.  I guess he left the stolen money dirty and maybe that’s why he was caught in the first place.

Parenteau was convicted on 11 counts including wire fraud, tax fraud, obstruction of justice, and witness tampering.

I am a firm believer that criminals should pay the price for their crimes and should not “get off easy.”  That belief stands whether you are a starlett like Lindsay Lohan who is getting jail time for violating probation or a less-well-known real estate scammer like Thomas Parenteau.  However, one big difference is that Ms. Lohan was represented by an attorney who will likely succeed in getting Lohan’s actual jail time reduced to a fraction of her sentence, while Mr. Parenteau’s ill-advised courtroom antics probably did nothing to help his cause.

According to Kathy Lynn Gray’s recent article in The Columbus Dispatch, the trial was expected to last six weeks.  It lasted two months and a lot of that extra time was a result of Parenteau’s decision to represent himself.

Trials are like traffic.  When the jury is taking in evidence like a nonstop cruise down I-71 at 65 MPH, the jurors are comfortable, attentive, and understanding.  But when the jury’s evidence show hits a traffic jam brought on by constant objections, improper questions, recesses, sidebars, and antics, the jurors become irritable, restless, fatigued, and annoyed.  You just want to lay on that horn and get the people in front of you moving to arrive at your destination.

The Parenteau trial was no cruise down I-71 with Parenteau’s appointed counsel locked in the trunk of the car.  Instead, Parenteau tells the jury “I’m an entrepreneur, not a criminal” and “fee-fi-fo-fum, the government says I am a cheap bum.”  Well, guess what?  Saying you’re an entrepreneur and and not a criminal is something I think Al Capone would say.  Spouting off “fee-fi-fo-fum” makes me think of an ogre, a bully – basically not someone with whom I want to be friends.  These statements do no paint a picture of a victim of circumstance or generate much sympathy.

I do not have any reason to believe that Parenteau was wrongfully convicted.  All evidence to the contrary.  But, competent legal counsel can mean the difference between life in prison and maybe seeing the dawn on an open field of freedom one day.

Parenteau will be sentenced in a few weeks.  If he has any appealable issues, I wonder if he’ll let his attorneys finally get involved.

Class Action against Apple and AT&T to proceed

jerrykaltenbach

I have an iPhone.  I love it.  I have AT&T service on my iPhone because I have to.  I don’t love it.

I honestly don’t know if I would love the iPhone more on Verizon, T-Mobile, Sprint, or any other carrier.  A device so powerful, so popular, and so demanding of bandwidth has the capacity to cripple any carrier.  That’s why I hope all the carriers will have the iPhone someday.  I may not even switch from, AT&T.  At least, not right away.  I will wait to see how network traffic across carriers is affected.  Fewer iPhones on multiple networks will should reduce traffic and dropped calls. Also, competition amongst the communication giants should reduce the “sticker shock” when I get the monthly bill.

These topics and more, including anti-trust and claims of secret deals between Apple and AT&T, are the subject of many lawsuits filed since 2007 and now consolidated in the Northern District of California.  The AP reported this morning:

SAN JOSE, Calif. – A federal judge says a monopoly abuse lawsuit against Apple Inc. and AT&T Inc.’s mobile phone unit can move forward as a class action.

The lawsuit consolidates several filed by iPhone buyers starting in late 2007, a few months after the first generation of Apple’s smart phone went on sale.

An amended complaint filed in June 2008 takes issue with Apple’s practice of “locking” iPhones so they can only be used on AT&T’s network, and its absolute control over what applications iPhone owners can and cannot install on the gadgets.

The lawsuit also says Apple secretly made AT&T its exclusive iPhone partner in the U.S. for five years. Consumers agreed to two-year contracts with the Dallas-based wireless carrier when they purchased their phones, but were in effect locked into a five-year relationship with AT&T, the lawsuit argued.

The actions hurt competition and drove up prices for consumers, the lawsuit claims.

Apple and AT&T have not commented on the terms of their deal. In its response to the complaint, Cupertino,California-based Apple said it did not hurt competition.

In court documents filed July 8, Judge James Ware of the U.S. District Court for the Northern District of California said parts of the lawsuit that deal with violations to antitrust law can continue as a class action. The class includes anyone who bought an iPhone with a two-year AT&T agreement since the device first went on sale in June 2007.

Apple has sold more than 50 million iPhones in the last three years. The company does not specify how many have gone to U.S. customers.

Ware dismissed other claims against Apple, among them allegations that the company broke laws when an update to the iPhone’s operating software caused some phones to stop working and deleted programs that users had purchased.

The lawsuit seeks an injunction to keep Apple from selling locked iPhones in the U.S. and from determining what iPhone programs people can install. It also seeks damages to cover legal fees and other costs.

We will continue to follow this story on the blog.  Would you like links to filed court documents from this case?  Let us know in the comments and we will provide.

Independence Day and the Declaration

jerrykaltenbach

As we celebrate the 234th birthday of these United States, it is appropriate to have a look at the document that launched our independence from Great Britain.  In the realm of natural law and the destiny of mankind, this document may not be a statute, a code, or even “legal” as the existing governing body might decree, but it is certainly worth our greatest admiration for many reasons.  From the art of Thomas Jefferson’s prose to the struggles that would come next.  Take a moment and reflect on the Declaration of Independence:

It's much easier to read to the left

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Continue reading →